C D. OLALE V. G. O. EKWELENDU
In The Supreme Court of Nigeria
On Friday, the 21st day of July, 1989
SC.54/1988
JUSTICES
ANDREWS OTUTU OBASEKI Justice of The Supreme Court of Nigeria
MUHAMMADU LAWAL UWAIS Justice of The Supreme Court of Nigeria
CHUKWUDIFU AKUNNE OPUTA Justice of The Supreme Court of Nigeria
ABDUL GANIYU OLATUNJI AGBAJE Justice of The Supreme Court of Nigeria
EBENEZER BABASANYA CRAIG Justice of The Supreme Court of Nigeria
Between
C D. OLALE Appellant(s)
AND
- O. EKWELENDU Respondent(s)
RATIO
WHETHER OR NOT IT IS THE DUTY OF THE TRIAL JUDGE TO EVALUATE EVIDENCE AND MAKE INFERENCES FROM THEM
In this case, it is obvious that the trial Judge has failed to make the necessary inference from the evidence before him and, in those circumstances, the lower Court was in as good a position to draw the proper inference.
See Dr. Ladipo Maja v. Dr. Stocco (1968) N.M.L.R. 372
Akpapuna v. Nzeka [1983] 2 S.C.N.L.R. 1
Okafor v. Idigo III (1984) 6 S.C. 1. PER CRAIG, J.S.C.
THE STANDARD OF PROOF NECESSARY TO GRANT A DECLARATION OF TITLE TO LAND
However since the appellant contested the claim, and there was evidence adduced by the respondent which sufficiently identified the land claimed by him (respondent), the High Court should not have held that the respondent had failed to identify the land in dispute – see Kwadzo v. Adjei 10 WACA 274 and Arabe v. Asanlu, (1980) 5n S.C. 78 at p.93 where Obaseki, J.S.C., made the following observation –
“The standard of proof necessary to grant a declaration of title to land as regards certainty of land is universal and applies equally to the superior courts as well as the inferior courts and the finding of the courts must pass the test stated in WACA in the case of Ate Kwadzo v. Robert Kwasi Adjei, 10 WACA 274 that is that a surveyor, armed with the record and going on the land be able to produce an accurate plan of such land.“PER UWAIS, J.S.C.
CRAIG, J.S.C. (Delivering The Leading Judgment): This is an appeal against the Judgment of the Court of Appeal, Enugu dated 4th December, 1985. In that Court, the Justices of the Court had reversed the judgment of Okara, J., who had dismissed the claims of the plaintiff/appellant in the High Court of Port-Harcourt. Those claims were for a declaration that:
“1. That the property known as No.2 Amaigbo Lane, Mile 2 Diobu Port-Harcourt is the Property of G. O. Ekwelendu – Plaintiff and not that of the Defendant.
2. An account be taken of all monies collected or ought to have been collected by the defendant as rent from the premises from 5th June, 1975 (time of release) until judgment is delivered and the amount found due be paid by the defendant to the Plaintiff.
3. An injunction to restrain the defendant and or his agents from collecting rents from the said building or otherwise treat the same as his property.”
Pleadings were ordered and exchanged. On those pleadings, the plaintiffs case, in a nutshell, is that sometime in 1968 he erected a house on a plot of land at No.2 Amaigbo Lane, Mile 2 Diobu, Port-Harcourt. Soon after this the Nigerian Civil War got to Port-Harcourt, and the plaintiff, being a non indigene of the Rivers State, had to abandon the property. In the meantime, the Rivers State Government treated the building as an abandoned property and administered it as such. Sometime in 1970, when the War was over, he paid a visit to Port-Harcourt and found the building and premises intact but overgrown with weeds. The plaintiff returned to the premises again in September, 1979 and found the defendant in occupation; he (defendant) had already let out the premises to some tenants. The plaintiff informed the defendant that he was the owner of the house but the defendant ignored him. The rest of the plaintiff’s story as pleaded in the Statement of Claim, was that
“9. Meanwhile the Rivers State Government treated the buildings along with others as abandoned property and administered and controlled the same as such.
10. By an Instrument of Transfer made under “The Abandoned Property (Custody and Maintenance) Edict 1969 No.8 dated 24th September, 1975”, the Rivers State Government released and transferred the Plot at No.2 Amaigbo lane, Mile 2, Diobu, Port-Harcourt to the plaintiff. The same Release was published in the River State Gazette of Nigeria Official Gazette No. 26 Volume 7 Serial No. 121 of 3rd July, 1975. Both the said Instrument of Transfer and the said Gazelle No. 26 are hereby pleaded and will he relied upon at the trial.
11. On the 8th February, 1977 the Resident of Abandoned Property, Implementation Committee invited the plaintiff by a letter to sign for and collect cheque(s) representing arrears of rent in respect of the property in dispute. The plaintiff honoured the invitation and was paid arrears of rent by the Federal Government. The said letter of invitation is hereby pleaded and will be relied upon at the trial.
12. After the said transfer to the plaintiff, the plaintiff showed the relevant papers of transfer to the defendant but the defendant refused to speak to the plaintiff.
13. In the meantime, the Port Harcourt City Council Engineer by a Building/Improvement Permit dated 11th December, 1975 permitted the plaintiff to effect some repairs on the buildings and premises. The said permit Notice is hereby pleaded and will be relied upon at the trial.
14. After receipt of the Permit Notice, the plaintiff wrote the defendant through Solicitor, C.A.B. Akparanta, Esq., to vacate the buildings and premises to enable the repairs to be carried out. The defendant refused to yield up possession of the property in dispute and in a letter dated 14th February, 1976 through his Solicitors, G. A. Graham Douglas & Co. demanded to be paid a sum of N4,000.00 said to be the amount he spent on making the building habitable. The said plaintiff’s Solicitor’s letter and the reply thereto are hereby pleaded and will be relied upon at the trail.
15. The plaintiff at no time authorised the defendant to make any repairs on his behalf.
17. Despite the above letters and publications and in spite of all entreaties by the plaintiff, the defendant has continued to occupy the property in dispute and has in addition put in tenants from whom he collects and keeps rents and refused to pay any rent to the plaintiff.
18. By failing to allow the plaintiff to inspect the buildings and premises to effect repairs to put in tenants and by words the defendant has claimed to be entitled to the ownership of and proceeds from the property in dispute.
In his testimony, the plaintiff asserted his right to the house in question and tendered all the document in support of his claim: in particular he tendered
(1) Building Plan of the property in dispute approved by the Port-Harcourt Municipal Council on the 6th of February, 1967.
(Exhibit B)
(2) A Survey Plan of the land in dispute (Exhibit “A”) dated 20/12/77
(3) Letter dated 8th February, 1977 from the Abandoned Properties Committee inviting the plaintiff to receive the arrears of rent collected on his behalf by the Federal Military Government. (Exhibit D).
When he was cross-examined, he denied that the property in dispute was at No. 34 Amaigbo Lane. He then called two witnesses who confirmed that the plaintiff was the owner of the house. One of the witnesses (3 P.W.) was the plaintiff’s neighbour and he stated that he saw the plaintiff whilst he was building the house. According to the witness, some of the building materials were kept in his house. The witness stated further:
“He started building the house in 1967 and finished it in 1968.
The house he was building was No.2 Amaigbo Lane.”
In reply to the Statement of Claim, the defendant admitted that the plaintiff visited him and showed him
“some documents relating to a property known as No. 2 Amaigbo Lane, Port-Harcourt.”
He also admitted paragraph 9 of the Statement of Claim, that the building in dispute was treated and administered by the Rivers State Government as an abandoned property. But he denied the rest of the plaintiffs averments. The defendant then pleaded the following significant facts:
“10. The defendant denies the averment as contained in paragraphs 17 and 18 of the Statement of Claim, and will further plead as follows:-
11. Some time in 1970, he saw the land known for postal purposes as No. 34 Amaigbo Lane, Diobu, Port Harcourt. He approached the Abandoned Property Authority who granted him permission to complete the building whose foundation was the only thing then standing thereon and covered with weeds.
12. The defendant then went on and made a plan of the house which was approved by the Municipal Council, Port Harcourt and proceeded on the erection of the building which now stands on the land and known for postal purposes as No. 34 Amaigbo Lane, Diobu. Port Harcourt. The defendant will found upon the various receipts for the purchase of the building materials and payment made to the masons carpenters and for labour in respect of the buildings at the hearing of the case.
13. Some time during month of October. 1970, one Isaiah Nnanta Wobo, an Ikwerre man from Diobu, the owner of the land now in dispute commenced negotiations with the defendant for the sale and convey to the defendant all that piece or parcel of land known as No. 34 Amaigbo Lane. Port-Harcourt. The negotiations were concluded in December, 1970, after the defendant had paid to the said Isaiah Nnanta Wobo, the sum of 1,500 Pounds now N3.000.00 value of the land. The receipts given to the defendant and the agreement dated 23/12/70 shall be founded upon at the hearing of the case.
14. In further answer to the averments as contained in the Statement of Claim, the defendant will say that later on a Deed of Conveyance dated 10/2/77 was duly made between the said Isaiah Nnanta Wobo and himself in respect of the said land which was duly registered as No. 20 at page 20 in Volume 68 of the lands Registry in the office at Port-Harcourt. The said Deed of Conveyance will be founded upon at the hearing of the case.
15. In further answer to the said averments as contained in the Statement of Claim, the defendant will say that the plaintiff has no land in any where known for postal purposes as No. 34 Amaigbo Lane or at No.2 Amaigbo Lane and he is not therefore entitled to the reliefs sought and contained at paragraph 19 of the Statement of Claim.
16. The defendant will urge the Court to dismiss the plaintiff’s claim as speculative.”
When he came to give evidence, the defendant stated that the house in dispute was at 34 Amaigbo Lane and that it did not belong to the plaintiff.
He stated that he bought the land on which the house stood from one Chief Isaiah Nnanta Wobo in 1970 and the Chief conveyed the land to him in 1977 as per the Deed of Conveyance Exhibit “Q.”
When he was ready to build and moved to the site, he found that a “skeleton foundation” had been erected on the site. However, he approached the Abandoned Property Authority and after obtaining that Authority’s approval, he started to build on the land. He admitted that he had let out part of the premises to tenants.
Under cross-examination, the defendant was asked about the approved building plan which he pleaded in paragraph 12 of his Statement of Defence, and he stated as follows:-
“I had a plan but it was a native land (sic). The Port- Harcourt Council Engineer saw my plan. He asked me to build. I don’t know what you mean. By approval they said I should build. They did not do so in writing.”
The defendant was also asked about the “permission” which he allegedly received from the Abandoned Property Authority to complete the building as pleaded in paragraph 11 of his Statement of Defence. This is what he had to say:
“There is a building next to the school building. It was numberless. I don’t observe whether it now has a number. I know the owner. His name is Mr. Egonu. He was P.W.3
I went to Chairman of Abandoned Property Authority to come and see pieces of block in the form of foundation. I say so because some places had blocks buried others had none. To make sure of ownership of land that was why I invited the Chairman and he said they had nothing to do with it. I did not see enough structure. I did not want anyone to come later and say it was his. The Abandoned Property Authority gave me no written authority because they said they had no connection with.”
Finally, the defendant was asked about his Deed of Conveyance Exhibit “Q” and he stated that:
“I entered into Exhibit Q while this action was in Court. I made the plan in 1977. The house is not shown on the plan.”
After giving his evidence, the defendant closed his case; he did not call any witnesses not even the Vendor who was alleged to have sold the land to him. Thereafter both Counsel addressed the Court.
In a considered judgment, the learned trial Judge dismissed the plaintiffs claims on two grounds. First, he held that the identity of the land in dispute had not been established with certainty. He observed that the plaintiff had referred to the building on the land as being at No.2 Amaigbo Lane, whilst the defendant said that the property was at No. 34 Amaigbo Lane. The trial Judge then held that since there was no evidence to show that the two numbers referred to one and the same property, the plaintiff’s claims must fail.
The second reason given for dismissing the claim was that the plaintiff only gave evidence of acts of ownership performed on the land, but did not give any evidence as to how he came by the land itself. The learned Judge then considered the cases of Ekpo v. Ita 11 N.L.R. 68 and Idundun v. Okumagbu (1976) 9-10 S.C. 227, and held that neither of them applied. In the circumstances, he held that:
It is my finding therefore that plaintiff should have given evidence of his root of title but has failed to do so and as such there is no evidence as to how he came by the land. I do not accept that acts of ownership constitute sufficient proof of title by a plaintiff, and particularly in this nature of claim which concern land in a municipality.
The plaintiff therefore has not only failed to prove the identity of land but has also failed to prove his root of title or manner of ownership of the land……………………….
I therefore have no option but to hold that the plaintiff has failed to prove his title over the land referred to as 2 Amaigbo lane, Mile 2 Diobu, Port Harcourt which he says is adversely occupied by the defendant.
………………………….
I therefore dismiss the plaintiff’s claim.”
The plaintiff was dissatisfied with that verdict and he appealed to the lower Court on a number of grounds. In one of the grounds of appeal, it was argued that the identity of the land in question was never in dispute as was borne out by the Exhibits C, D, E, F, G, and Q; the defendant’s Deed of Conveyance. It was also submitted that the trial Judge had misdirected himself in his interpretation of the cases of Ekpo v. Ita supra and Idundun v. Okumagbu supra.
In its judgment, the Court of Appeal, per Aikawa, J .C.A., (Aseme and Olatawura. JJ.C.A. concurring) accepted all the submissions of the plaintiff/appellant. The lower Court also held that the real dispute between the parties was as to the ownership of the abandoned property which was governed by the Abandoned Property (Custody and Management) Edict No.8 of 1968, – not as to the land on which that property stood.
In the event, the Court of Appeal allowed the appeal and set aside the judgment of the trial Court.
The defendant was dissatisfied with that decision and lodged appeal to this Court on the following three grounds:
“GROUND ONE:
That the learned trial Justices of the Court of Appeal erred in law in holding that the respondent could own the property in dispute without owning the legal or equitable estate of the land.
PARTICULARS OF ERROR:
(a) The learned trial Justices failed to consider the effect of Exhibit “Q”, the Deed of Conveyance wherein the owners of the land conveyed their interest in the land to the appellant against the legal principle Of, “Quic quid plantatur solo solo cedit.
(b) By the averments as contained in paragraphs 3 and 3A of the Amended Statement of Claim and paragraph 3 of the Statement of Defence, the land on which the property situate was put into issue.
GROUND TWO:
The learned trial Justices of the Court of Appeal misdirected themselves in holding that the defendant/respondent’s case is very weak while the appellant had adduced sufficient evidence supported by undisputed documents from the proper authority to warrant the court to enter the judgment in his favour.
PARTICULARS OF ERROR:
(a) None of the documents tendered by the respondent identified the property as No. 2 Amaigbo Lane, Diobu, Port Harcourt.
(b) The onus was on the respondent to establish the identity of the property in dispute with creditable evidence.
(c) There is a difference between Amaigbo and Abaigbo and no effort was made to confirm that the two names are the same.
GROUND THREE:
That the learned trial Justices of the Court of Appeal misdirected themselves in the printed record of appeal in allowing the appeal when they held:
(a) This in my opinion was due to the fact that the defendant/respondent appeared to have made up all the Exhibits for his case when there is no such evidence on the printed records.
(b) “Exhibit “C” Rivers State Official Gazette No. 26 of 1975 showed that the Appellant is the owner of the property in dispute, the name of which was wrongly spelt therein.”
There was no evidence that any word was wrongly spelt.
(c) The issue before trial Judges is the ownership of No..2 Amaigbo Lane. Therefore the trial Judges misdirected themselves in wishing the appellant to establish how he came by the land in order to succeed in claiming the ownership of the property therein.”
In his brief of argument, Counsel for the defendant has formulated three issues for determination and these are:
1. Whether the Justices of the Court of Appeal were right in allowing the appeal when none of the Exhibits tendered by the respondent in proof of his case identified the property in dispute as No. 2 Amaigbo Lane, Diobu, Port Harcourt. If they did not, what will be the attitude of Supreme Court
2. Whether in view of paragraphs 3 and 3A of the Amended Statement of Claim and paragraph 3 of the Statement of Defence, the land on which the house in dispute is situate is not in issue and if so, whether respondent was not entitled to show his relationship with the land
3. When a Court of Appeal determines an Appeal on Speculation not backed by evidence received before the Appeal Court what would the Supreme Court do
In his own Brief, the plaintiff/respondent submitted two issues for determination and these are as follows:
(1) Whether the issue before the Court was ownership of Abandoned Property controlled and managed by the Abandoned Property Authority under Edict No.8 of 1969 OR issue of title to land requiring the plaintiff to prove how he came to the land on which he built his houses.
(2) Whether the Court of Appeal was right in holding that the plaintiff/respondent proved that he is the owner of the buildings in dispute on the evidence before the trial Court.
I have carefully considered these issues and it seems to me that having regard to the facts of the case, the issues as formulated by the respondent appeared to me to be the real issues in controversy between the parties.
It seems to me that the first and most important issue in this appeal is to determine whether the property in dispute was an “abandoned property” as defined under the Abandoned Property (Custody and Management) Edict, No.8 of 1969, or whether it is just an ordinary property, the ownership of which would have to be established in any of the ways set out in Idundun v. Okumagba supra. If it was an “abandoned property”, then the rights of the parties with regard to the occupation and/or ownership of the said property would have to be determined by reference to the provisions of the Edict.
As previously stated,’ the defendant admitted in paragraph 6 of his Statement of Defence that the house in dispute was an abandoned property; in fact, this explains why, according to him, he went to the Abandoned Property Authority to ask for permission to complete the building.
In the Edict under consideration, an abandoned property is defined in section 2 thereof as follows:
“2. In this Edict, unless the con otherwise requires “abandoned property” means any property, movable or immovable, belonging to a person whose home-town or place of origin is not situate in the Rivers State of Nigeria, which, in the opinion of the Military Governor or the Authority, has been abandoned by the owner thereof as a result of the Civil War in Nigeria or the disturbances in the country leading to it, and is at the time of the making of this Edict not in the physical occupation or under the personal control and management of such owner.”
It is clear from that definition that the Edict was promulgated in order to protect the property of non-indigenes of the Rivers State who have had to abandon their property during the Civil war; the Edict would therefore not apply to indigenes of the State. There was evidence that the plaintiff hailed from Njikoka in Anambra State and that he had to flee Port-Harcourt during the War. He is therefore a non-indegene of Rivers State. Now what about the defendant, what State does he come from The Deed of Conveyance Exhibit Q, tendered by him described him as
“CLAUDIUS DAUMORU OLALI……..native of Kula town in Ogbia Local Government District of the Brass Local Government Authority Area, Rivers State of Nigeria (hereinafter called PURCHASER)……..”
The defendant is therefore an indigene of Rivers State and since he did not leave the State during the Civil War, nor abandon any property at the relevant period, the Abandoned Property Edict 1969 would not apply to him. But this does not mean that the defendant has no rights under the Edict, for under section 13, he may claim ownership of any abandoned property and prevent the Abandoned Property Authority from paying the accumulate rents it had collected to the supposed owner. The relevant provisions of the Edict are as follows:
“12. (1) The Authority shall pay into a Bank or Fund approved by the Military Governor, in its name, all rents and money collected by it in respect of every abandoned property and shall hold the same in trust for the owner of the property in respect of which the same has been collected.
(2) The Authority shall from time to time pay to the owner of every abandoned property such sums as may be standing to its credit at such Bank or in such Fund out of the rents or profits or other moneys collected in respect of such property after defraying all expenses incurred for the control and management of such property and all outgoings legally due and payable in respect of such property.
13(1) Before making any payment under the provisions of subsection (2) of the preceding section to any person who claims to be the owner of an abandoned property the Authority shall satisfy itself that such claimant is the owner of such property and shall require strict proof of such ownership.
(2) Without prejudice to the right of any such claimant to furnish such secondary evidence of ownership as may be allowed by law the Authority shall.
(a) where the claimant purports to be the lessee of a State land by virtue of a State deed of lease, insist on the production of such deed of lease, duly registered;
(b) where the claimant purports to be the sub-lessee of the lessee of a State land, insist on the production of both the head lease and the sub-lease, both of them duly registered;
(c) in other cases in which the property is owned or held under a valid instrument, insist on the production of such Instrument.
(3) Where two or more persons claim to be the owner of an abandoned property for purposes of the provisions contained in sub-section (1) of this section they shall each be referred by the Authority to the High Court of the State and either or each of them may thereupon bring an ordinary civil action in the High Court to determine the ownership of such property, and pending the decision of the High Court no payment due to the owner thereof shall be made by the Authority in respect of such property.”
Obviously, the defendant knew that the property in dispute was an abandoned property for in paragraph 11of the Statement of Defence, he pleaded that:
“11. Sometime in 1970, he saw the land known for postal purposes as No. 34 Amaigbo Lane, Diobu, Port-Harcourt. He approached the Abandoned Property Authority who granted him permission to complete the building whose foundation was the only thing then standing thereon and covered with weeds.”
In his oral testimony, the defendant stated that:
“In 1970 I bought a land from the owner of the land; on getting ready to build the house I found that weeds had covered a skeleton foundation.
I obtained permission of the Abandoned Property Authority. The Chairman himself, Barrister Ihua-Maduenyi, inspected it. The general condition of the place was that it was all grass – no building was there. After getting the approval started building bought materials, got mason to build up the house.”
The admission from the defendant that he had to obtain permission from the Abandoned Property Authority to build on the property in question, is a clear indication of the fact that he recognised the property as belonging to someone who had had to abandon it in the circumstances set out in the Edict.
There is no evidence about the conditions under which the permission was granted nor was there evidence that. at that early stage, the defendant laid claim to the property as his own.
If the defendant had claimed ownership of the property, the Authority would have referred the issue to the High Court under section 13(3) of the Edict. In the end, the Authority paid all the rents it had collected to the plaintiff – again without any objection from the defendant.
When the plaintiff returned to Port Harcourt after the War, he informed the defendant that he was the owner of the property and showed him all the documents which he had in proof of his title, but the defendant gave him a cold shoulder. The plaintiff then caused his Solicitors to send a letter, Exhibit F to the defendant, that letter reads as follows:
“31st January, 1976
C. D. Olale.
No.2 Amaigbo Lane,
Mile 2 Diobu,
Port Harcourt.
Sir,
re: NOTICE OF INTENTION TO REPAIR
NO.2 AMAIGBO LANE MILE 2 DIOBU,
PORT-HARCOURT.
We have been consulted and our services retained by Mr. G.O. Ekwelundu the owner and landlord of No.2 Amaigbo Lane Mile two Diobu, Port Harcourt. We are to give you hereby formal notice of our client’s intention to start extensive repairs and renovation works at the said house within 14 clear days from the date of this letter.
For information, we are enclosing herewith a copy of the Improvement Permit issued to our client by the Port-Harcourt City Council in respect thereto. We hope that you will give our client your full co-operation by ensuring that you and your retinue of dependants. relations and guests keep out of the way of our client, his contractors and workmen during the period of the said repairs.
TAKE NOTICE that if you fail to do so our client will not be liable to any damage or loss which you may suffer as a result of the activities of the said workmen.
Yours faithfully,
(SIGNED)
pp. C.A.B. Akparanta & Co.,
Solicitors.
The defendant consulted a lawyer, and instructed him to send a reply to
Exhibit F. That letter (Exhibit G) is very revealing and it states:
“14th February, 1976.
C.A.B. Akparanta,
Barrister at Law,
Abinye Chambers,
97 Aba Road,
P.M.B.5169.
PORT HARCOURT.
Dear Sir,
NOTICE OF INTENTION TO REPAIR
NO.2 AMAIGBO LANE MILE
2 DIOBU, PORT HARCOURT:
We act for Mr. C. D. Olale of No. 34 Amaigbo Lane, Diobu, Mile 2, Port Harcourt, who has referred to us your letter reference CA/GOE/2/44 of 31st January, 1976, with instructions to reply.
The inference one is likely to draw from your letter under reference is asking our client to give vacant possession of No.2 Amaigbo Lane to your client, Mr. G .O. Ekwelundu. We will say that the permission granted to your client to make repairs to the house does not mean and will not be taken to mean an order giving him vacant possession.
Your client can make whatever repairs he intends to make, but this must be done with the necessary care and diligence so that, the occupants of the building do not suffer any loss at all.
It is therefore our instruction to ask you to advise your client that he cannot deprive our client of his possession of the property in the manner, which is the present modus used by landlords in Port Harcourt in driving their tenants whom they cannot remove in view of the provisions of the Protection from Eviction Edict.
We wish to say further that, the building which our client occupies is known for postal purposes as No. 34 Amaigbo Lane, Port Harcourt and not No.2 Amaigbo lane as stated. Our client moved into the said property with the permission and consent of the Abandoned Property Authority in 1971. The property was then in an uncompleted state, with no roof, no windows and doors, not plastered and overgrown with weeds and grasses. He spent well over N4,000.00 to make the building habitable. This sum of money it was the decision of the A. P. A. to be refunded to our client by the owner, when the property is handed over to its owner. It is therefore our further instruction to bring this to the notice of your client so that the refund can also be considered by him.
Finally, we are to say that your client can carry out his improvement, but he must do so with the greatest care and diligence not unmindful of the rights of our client over his possession of the building, as the permission to Improvement if at all granted is not an Order to Quit. May wiser counsel prevail.
Yours faithfully,
(SIGNED)
G. A. GRAHAM DOUGLAS,
pp: GRAHAM DOUGLAS & CO.
SOLICITORS.”
It is significant that although the plaintiff had written his letter as “the owner and landlord of No.2 Amaigbo Lane,” the defendant’s reply did not challenge that assertion nor did the defendant take this second opportunity to lay claim to the property and to disclose the root of his title.
When eventually the plaintiff sued the defendant to Court, it was then, for the first time that he disclosed that he had bought the property from one Chief Wobo in October, 1970. The Court of Appeal did not think much of that defence. That Court per Aikawa, J.C.A., held:
“If that sale had taken place there is no need for him to obtain the permission of the Abandoned Property Authority. See Section 2 of the said Edict. Here again the vendor was not called and his absence was not explained to the Court.
The defendant/respondent’s case is very weak while the appellant had adduced sufficient evidence supported by undisputed documents from the proper authority to warrant the Court enter judgment in his favour.”
I agree with those views of the lower Court. It seems to me that the conduct of the defendant/respondent throughout the relevant period has not been consistent with that of a genuine owner.
Now, the defendant had laid claim to the property in dispute through a Deed of Conveyance Exhibit Q. The recitals on that Deed state that the property sold to the defendant is at No. 34 Amaigbo Lane Diobu. If that landed property is different from the building situate and being at No.2 Amaigbo Lane (which is the subject-matter of this suit), then Exhibit Q is totally irrelevant to this case. But if the property conveyed in Exhibit Q is the same as is now in dispute – although given different addresses by both parties – then it is relevant to a just determination of this case.
In the trial Court, a lot of unnecessary dust was raised about the fact that the disputed property was referred to by different Street numbers and because of this, the trial judge held that identity of the disputed property was uncertain. But is this correct
In paragraph 3A of the Amended Statement of Claim, the plaintiff pleaded that the land and buildings which he was claiming were as shown on Survey Plan No. ECRS/10/77 of 20/12/77. At the trial, he tendered the said plan and it was admitted without objection as Exhibit “A.” Furthermore, the plaintiff gave evidence that he erected a building on that land but had to abandon it during the War. On his return, he found the defendant in possession and challenged him. On the part of the defendant, he stated that he bought a piece of land from one Chief Wobo; there was a foundation on the land at the time of sale, but after obtaining permission from the Abandoned Property Authority, he built on it. He admitted that, after the War, the plaintiff came to him in that house and claimed ownership of it. Now on the face of that evidence, there cannot be any doubt that the property in dispute is that containing the building where the defendant now lives. That is why the defendant is contesting the suit and it is idle to say that the property is different just because the defendant has chosen to give it a different Street number.
In any case, once there is a Survey Plan of a disputed property, and that Plan satisfies the acid test laid down in A. Kwadzo v. R. K. Adjei 10 W.A.C.A. 274, the land cannot be said to be uncertain. The acid test in Kwadzo’s case is:
“Whether a Surveyor, taking the record of proceedings could produce a plan showing the land to which title has been given.”
In the instant case, it is clear that the identity of the property claimed by the plaintiff is known to both parties and is identifiable on the Survey Plan Exhibit “A.”
I now return to a consideration of the Deed of Conveyance Exhibit Q which I assume relates to the disputed property.
That Deed was executed in 1977, at a time when, according to the defendant, this case was already in Court. But the Purchase receipts Exhibits ‘O’ and ‘P’ show that the property was sold to the defendant between October and December, 1970, and the question is, was that a valid sale
Section 15 of the Abandoned Property (Custody and Management) Edict 1969 provides that:
“Any transaction entered into after 27th day of May, 1967, relating to the sale, lease, mortgage or disposal of any abandoned property or of any interest therein, shall be null and void unless such transaction is approved by the Military Governor within six months after the commencement of this Edict.”(Italics mine)
The defendant admitted in his Statement of Defence, that the disputed property was an “abandoned property”, but he claimed to have bought it in 1970. If this is so then the defendant must produce evidence that the Military Governor of Rivers State, had given his approval to that transaction. He did not do this, and the sale to the defendant must be held to be null and void. This means that any evidence given in proof of that transaction would have to be completely disregarded. The result of all that would be that there had not been any worthwhile challenge or defence to the plaintiff’s case and, in my view, the Court of Appeal was right to have given judgment for the plaintiff on his claims.
Regrettably, the trial Judge did not see the issues involved in this light. He did not appreciate the fact that he had to consider the competing legal interests of the parties in accordance with the provisions of the Abandoned Properties Edict 1969, nor did he properly evaluate the Exhibits which were tendered before him. Instead, the learned Judge proceeded on a tedious consideration of the five ways of proving title to land as enunciated in Okumagba’s case (supra). In my view, this was an unnecessary exercise. If the learned Judge had properly evaluated the evidence, he would have arrived at the same conclusion as the lower Court did.
In his brief of argument, the plaintiff/respondent’s Counsel has submitted that in giving judgment for the plaintiff, the Court of Appeal carried out an evaluation of the evidence (mainly documentary) which did not involve the credibility of witnesses, and the case of Ebba v. Ogodo (1984) 4 S.C. 84 was cited in support of that submission.
I have given due consideration to that submission and I am satisfied that it is correct.
In this case, it is obvious that the trial Judge has failed to make the necessary inference from the evidence before him and, in those circumstances, the lower Court was in as good a position to draw the proper inference.
See Dr. Ladipo Maja v. Dr. Stocco (1968) N.M.L.R. 372
Akpapuna v. Nzeka [1983] 2 S.C.N.L.R. 1
Okafor v. Idigo III (1984) 6 S.C. 1
In the instant case, I am satisfied that the Court of Appeal drew the correct inferences from the documentary exhibits tendered. Those documents adequately support the plaintiff’s claims and the lower Court was right to set aside the judgment of the trial Court and make an order allowing the plaintiffs claims.
Accordingly this appeal fails and it is dismissed.
The decision of the lower Court is hereby affirmed. There will be costs in favour of the plaintiff assessed at N500.00.
OBASEKI, J.S.C.: I have had the privilege of a preview of the judgment just delivered by my learned brother, Craig, J.S.C., and I find his opinion on all the issues for determination in this appeal accord with mine. I therefore accept them as my own and find no merit in the appeal.
The proceeding leading to this appeal before this Court commenced its journey in Port Harcourt Judicial Division of the High Court of Rivers State holden at Port Harcourt where the respondent as plaintiff by his writ of summons taken out and filed on the 5th October, 1977 claimed:
1. “That the property known as No. 2 Amaigbo Lane, Mile 2 Diobu, Port Harcourt is the property of G. O. Ekwelendu plaintiff and not that of the defendant;
2. An account be taken of all monies collected or ought to have been collected by the defendant as rent from the premises from 5th June, 1975 (time of release) until judgment is delivered and the amount found due be paid by the defendant to the plaintiff;
3. An injunction to restrain the defendant and or his agents from collecting rents from the said building or otherwise treat the same as his property.”
At the close of pleadings, the issues joined came up for determination before Okara, J. After hearing evidence and addresses of counsel, the learned trial Judge dismissed the plaintiff’s/respondent’s claim on the ground that:
“The plaintiff ….. has not only failed to prove the identity of the land but has also failed to prove his root of title.”
The plaintiff/respondent was dissatisfied with the judgment and took the matter up on appeal to the Court of Appeal. His appeal was successful and the Court of Appeal in a well considered unanimous judgment entered judgment in his favour which is highlighted in the closing paragraph of the lead judgment delivered by Aikawa, J.C.A., which reads:
“The defendant’s/respondent’s case is very weak while the appellant had adduced sufficient evidence supported by undisputed documents from the proper authority to warrant the court to enter judgment in his favour. The trial Judge was right in not delivering any judgment in favour of the defendant/respondent. He was however wrong in dismissing the plaintiffs/appellant’s case. The judgment of Okara, J., in the High Court of the Rivers State of Nigeria is hereby set aside and substituted by judgment in favour of the plaintiff/appellant as per his writ of claim with N200.00 costs in the lower Court and N300.00 costs of this appeal.”
Aseme, J.C.A and Olatawura, J.C.A., expressed their concurrence with the lead judgment.
The defendant was dissatisfied with the decision of the court and has now appealed to this court. Four grounds were filed by the defendant’s counsel, each of the first three grounds being introduced erroneously with the words:
‘The learned trial Justices of the Court of Appeal”
Constitutionally, the justices of the Court of Appeal exercise only appellate jurisdiction (see section 219 of the Constitution of the Federal Republic 1979). They have no and do not exercise original jurisdiction of trial of cases reserved for a court of first instance like the High Court in this case. The appellant was therefore incorrect in his description of the Justices of the Court of Appeal who heard the appeal as learned trial Justices of the Court of Appeal. Although no exception was taken to the inaccurate description by learned counsel for the plaintiff/respondent at the hearing of the appeal, I cannot allow the error to go without a comment and expression of disapproval. If the Justices of the Court of Appeal had assumed the jurisdiction of the High Court to try the case, the court would have acted without jurisdiction. Thus far will go but cautioning counsel and parties to be precise in the use of language so as to reflect the actual state of affairs and the jurisdiction exercised by the court.
The facts in this appeal have been set out in admirable detail in the judgment of my learned brother, Craig, J.S.C., and I shall not repeat them here save to the extent necessary for this judgment. Three issues were formulated for determination by this Court in the appellant’s brief. They are:
1. Whether the Justices of the Court of Appeal were right in allowing the appeal when none of the Exhibits tendered in proof of the case identified the property in dispute as No.2 Amaigbo Lane, Diobu, Port Harcourt. If they did not, what will be the attitude of the Supreme Court
2. Whether in view of paragraphs 3 and 3A of the amended statement of claim and paragraph 3 of the statement of defence, the land on which the house in dispute is situate is not in issue and if so, whether the respondent was not entitled to show the relationship.
3. When a Court of Appeal determines an appeal on speculation not backed by evidence received before the Appeal Court, what would the Supreme Court do
The 3rd issue formulated by the appellant set out above is a hypothetical question and has not been given a nexus with the matters in the instant appeal. This Court has on several occasions declared and emphasised that the 1979 Constitution which established it has not conferred on it jurisdiction to deal with hypothetical, academic or political questions. So the Supreme Court does not deal with or determine hypothetical questions and will not, in this judgment, answer the question posed in the 3rd issue for determination.
The issues for determination formulated by the respondent appear to be more relevant and germane to the matters in controversy. They are two fold and read:
1. Whether the issue before the Court was ownership of Abandoned Property controlled by the Abandoned Property Authority under Edict No.8 of 1969 OR issue of title to land requiring the plaintiff to prove how he came to the land on which he built;
2. Whether the Court of Appeal was right in holding that the plaintiff/respondent proved that he is the owner of the buildings in dispute on the evidence before the trial Court.
Certain facts stand out prominently from the pleadings and the evidence both documentary and oral. They are:
(1) That the appellant was in 1971 let into possession of the property in dispute by the Port Harcourt Rivers State Abandoned Property Authority;
(2) That the respondent on his return to Port Harcourt after the civil war found the appellant in possession of the property and he identified himself to the appellant as the owner of the property occupied;
(3) That the appellant on receipt of notice to quit from the property Exhibit F from respondent’s solicitor gave instruction to his solicitor to reply and in carrying out the instructions wrote Exhibit G which inter alia states:
‘Our client moved into the said property with the permission and consent of the Abandoned Property Authority in 1971………..He spent well over N4,000.00 to make this building habitable. This sum of money it was the decision of the A.P.A. to be refunded to our client by the OWNER when the property is handed over to the owner. It is therefore our further instruction to bring this to the notice of your client so that the refund can be considered by him
(4) That the Abandoned Property Authority has released and handed over the property in dispute to the respondent;
(5) That the appellant failed to produce any evidence from the Abandoned Property Authority that the respondent was not the owner of the property in dispute but someone else. ,
From the above facts which were before the learned trial Judge, he ought to have given judgment in favour of the plaintiff/respondent. ‘There is no room to maneuver out of the obvious verdict from the overwhelming evidence against the appellant. The learned trial Judge was wrong to have shut his eyes to these incontrovertible facts. If the appellant as he admitted were a tenant of the Abandoned Property Authority, he became a tenant of the respondent when the Authority handed over the property together with the rents collected to him. One of the cardinal principles of Law of Evidence is that a tenant cannot and is not allowed to dispute the title of his landlord. [see section 151 Evidence Act Cap. 62]. The appellant did nothing else than dispute the title of the landlord in court forgetting that he did not do so in his letter Exhibit G where he asked for a refund of N4,000.00 he allegedly spent on repairs to the building.
It does not appear to me that the appellant, right from the inception of these proceedings in the High Court had any legs to stand on. The Abandoned Property (Custody and Management) Edict No.8 of 1969 of the Rivers State was promulgated to control and manage properties abandoned by owners who fled from the State for safety as a result of the last civil war till the owners returned and identified themselves. On being satisfied with the identity and proof of ownership the Authority was to hand over the property together with the account of all rents collected during his absence and payment of whatever remains after expenses. More specifically, section 4 of the Edict provides that:
“4 The legal ownership of every abandoned property situate within the State is hereby vested in the Authority which shall hold, control and manage such property for the owner thereof, and shall, in particular and without prejudice to the generality of the foregoing provision:
(a) charge, collect and enforce the demand of rents and other profits and all monies whatsoever due and owing in respect of any such property;
(b) make arrangements for the maintenance and upkeep of any such property;
(c) pay all dues and defray all expenses in the nature of ground and other rents, rates, taxes and all outgoings whatsoever due and payable in respect of every such property;
(d) maintain full and proper accounts of all monies collected in respect of any such property and deal with such moneys collected in the manner set out in this Edict; and
(e) do everything which in its opinion or in the opinion of the Military Governor is necessary for the proper management of such property.”
The clandestine and secret attempt by the appellant to acquire title to the land on which the building in dispute situates from someone who had no title by name Chief Isaiah Nnanta Wobo did not reckon with the provision of section 15 of the Edict. That section provides that:
“Any transaction entered into after 27th day of May, 1967 relating to the sale, lease, mortgage or disposal of any abandoned property or of any interest therein, shall be null and void unless such transaction is approved by the Military Governor within six months after the commencement of this Edict.”
The evidence of hand over of the abandoned property to the respondent not only proves that the legal ownership has been transferred to and is now vested in the respondent but also that the respondent was also the owner of the property before the ownership was by Edict No.8 of 1969 of the Rivers State vested in the respondent.
The Court of Appeal was perfectly justified in my opinion to allow the appeal from the High Court. My learned brother, Craig, J.S.C., examined the issues raised for determination in this appeal exhaustively and I agree with him in all the opinions expressed on them. For those reasons and the above reasons I too will dismiss and I hereby dismiss the appeal and affirm the decision of the Court of Appeal.
The respondent is entitled to costs in this appeal fixed at N500.00.
UWAIS, J.S.C.: I have had a preview in draft of the judgment read by my learned brother, Craig, J.S.C. I agree that the appeal has no merit and that it should be dismissed.
By section 4 sub-section (1) of the Abandoned Property (Custody and Maintenance) Edict, 1969 (No.8 of 1969) of Rivers State of Nigeria, the legal ownership of any abandoned property in the Rivers State has been vested in the Rivers State Abandoned Property Authority. The sub-section reads –
“(1) The legal ownership of every abandoned property situate within the State is hereby vested in the Authority which shall hold, control and manage such property for the benefit of the owner thereof…….”
It is common ground that the property in dispute in the case in hand is an abandoned property within the definition in section 2 of the 1969 Edict, (No. 8 of 1969) which reads –
“2. In this Edict, unless the con otherwise requires-
“abandoned property” means any property, movable or immovable, belonging to a person whose hometown or place of origin is not situate in the Rivers State of Nigeria, which in the opinion of the Military Governor or the (Abandoned Property) Authority, has been abandoned by the owner thereof as a result of the Civil War Nigeria or the disturbances in the Country leading to it, and is at the time of the making of this Edict not in the physical occupation or under the personal control and management of such owner.
It is clear, therefore, that by virtue of the legal ownership and the control which the Abandoned Property Authority exercises on an abandoned property, only the Authority can transfer ownership of such property to any claimant. There was overwhelming evidence before the trial Court (Okara, J.) that the respondent herein, as plaintiff, was the owner of the land in dispute since the legal ownership thereof was transferred to him by the Abandoned Property Authority under a Rivers State Gazette Notice No. 26 of 1975 (Exhibit C) and an Instrument of Transfer dated the 24th day of September, 1975. The learned trial Judge was therefore in error when he held that –
“It is my finding therefore that plaintiff should have given evidence of his root of title but has failed to do so and as such there is no evidence as to how he came by the land.”
Another ground on which the trial court dismissed the respondent’s claims was that the respondent failed to establish the identity of the land in dispute. But the respondent’s statement of claim averred in paragraph 3A thereof. that the identity of the land in dispute was as shown in survey plan No. ECRS/10/77 which was dated the 20th day of December, 1977. The plan was tendered in evidence by the respondent and it was admitted as exhibit A. The respondent also referred, in his pleadings, to the land in dispute as No.2 Amaigbo Lane, Mile 2 Diobu Port Harcourt. But the appellant, as defendant, alleged in his statement of defence that the land which be (appellant) occupied was No. 34 Amaigbo Lane, Diobu, Port Harcourt. If it was true that the land occupied by the respondent was No. 34 Amaigbo lane, and not No.2 Amaigbo Lane, as pleaded by the respondent, then it was not necessary for the appellant to contest the respondent’s claim. However since the appellant contested the claim, and there was evidence adduced by the respondent which sufficiently identified the land claimed by him (respondent), the High Court should not have held that the respondent had failed to identify the land in dispute – see Kwadzo v. Adjei 10 WACA 274 and Arabe v. Asanlu, (1980) 5n S.C. 78 at p.93 where Obaseki, J.S.C., made the following observation –
“The standard of proof necessary to grant a declaration of title to land as regards certainty of land is universal and applies equally to the superior courts as well as the inferior courts and the finding of the courts must pass the test stated in WACA in the case of Ate Kwadzo v. Robert Kwasi Adjei, 10 WACA 274 that is that a surveyor, armed with the record and going on the land be able to produce an accurate plan of such land.”
In the present case the action by the surveyor had been taken long before the hearing of the case. With the survey plan (exhibit A) tendered in evidence in the course of the proceedings, the trial court could not in the absence of rejecting the survey plan, (which it did not) rightly hold that the land claimed by the respondent was not identified. The Court of Appeal (per Aikawa, J.C.A.) therefore acted properly in reversing the decision of the trial Judge by entering judgment for the respondent.
For these and the fuller reasons contained in the judgment read by my learned brother, Craig, J.S.C., I too will dismiss the appeal. Accordingly, the appeal is hereby dismissed. The decision of the Court of Appeal is affirmed with N500.00 costs to the respondent.
OPUTA, J.S.C.: I have had the privilege of a preview in draft of the lead and last judgment delivered by my noble Lord and learned brother, Craig, J.S.C.
The way this case was handled by the trial Court raises serious questions about the due appreciation, by our trial Courts, of the role of pleadings, the issues settled on those pleadings, and what exactly was the case presented for adjudication and determination on those pleadings. The case, as pleaded, may also determine on whom the onus of proof lies and finally the right to begin. My contribution will deal mainly with these vital questions. The above questions are made issues in this Court by Ground 1 of the defendant/appellant’s Grounds of Appeal, which complained:-
“Ground One:
That the learned trial Justices of the Court of Appeal erred in law in holding that the Respondent could own property in dispute without owning the legal or equitable estate of the land.
Particulars of Error
(a) The learned trial Justices failed to consider the effect of Exhibit “Q”, the Deed of Conveyance wherein the owners of the land conveyed their interest in the land to the appellant against the legal principle of “Quic quid plantatur solo, solo cedit.”
(b) By the averments as contained in paragraphs 3 and 3A of the Amended Statement of Claim and paragraph 3 of the Statement of Defence, the land on which the property situate was put into issue.”
It now becomes necessary to look at the pleadings in this case.
I will therefore take the unusual step of reproducing the plaintiff/respondent’s Amended Statement of Claim and the defendant/appellant’s Statement of Defence. In his Amended Statement of Claim, the plaintiff pleaded as follows:-
“AMENDED STATEMENTOF CLAIM
1. The plaintiff is a native of Agulu in Njikoka Division of Anambra State of Nigeria.
2. The defendant who is a school teacher resides at No.2 Amaigbo Lane, Mile 2, Diobu, Port Harcourt.
3. The property in dispute consists of a permanent building and out houses erected by the plaintiff on the premises known as No.2 Amaigbo Lane. Mile 2, Diobu Port Harcourt about 1968.
3(A). The said land and buildings therein are shown on Survey Plan No. ECRS/10177 dated 20th December, 1977 which is filed herewith.
4. Before erecting the buildings on the property in dispute the plaintiff did submit to then Port Harcourt Municipal Council a Plan on the proposed buildings which Plan was passed and approved by the Port Harcourt Municipal Council on the 6th February, 1967. The said Plan is hereby pleaded and will be founded upon at the trial.
5. Just after the Buildings have been completed in 1968, the civil war raged on to Port Harcourt and the plaintiff had no opportunity of retaining possession of the buildings.
6. After the Nigerian civil war the plaintiff visited Port-Harcourt in 1970 and found the buildings and premises overgrown with weeds but otherwise in good condition.
7. When the plaintiff again visited the buildings and premises about September, 1970, he saw the defendant and other persons occupying the buildings and premises.
8. The plaintiff, however, introduced himself to the defendant as the owner of the buildings and premises but the defendant did not as much as answer him.
9. Meanwhile the Rivers State Government treated the buildings along with others as abandoned property and administered and controlled the same as such.
10. By an Instrument of Transfer made under “The Abandoned Property (Custody and Maintenance) Edict 1969 No.8 dated 24th September, 1975″, the Rivers State Government released and transferred the Plot at No.2 Amaigbo Lane, Mile 2. Diobu, Port Harcourt to the Plaintiff. The same Release was published in the Rivers State Gazette of Nigeria Official Gazette No. 26 Volume 7 Serial No. 121 of 3rd July, 1975. Both the said Instrument of Transfer and the said Gazette No.26 are hereby pleaded and will be relied upon at the trial.
11. On the 8th February, 1977, the Resident of Abandoned Properties Implementation Committee invited the plaintiff by a letter to sign for and collect cheque(s) representing arrears of rent in respect of the properly in dispute. The plaintiff honoured the invitation and was paid arrears of rent by the Federal Government. The said letter of invitation is hereby pleaded and will be relied upon at the trial.
12. After the said transfer to the plaintiff, the plaintiff showed the relevant papers of transfer to the defendant but the defendant refused to speak to the plaintiff.
13. In the meantime, the Port Harcourt City Council Engineer by a Building/Improvement Permit dated 11th December, 1975, permitted the plaintiff to effect some repairs on the buildings and premises. The said permit Notice is hereby pleaded and will be relied upon at the trial.
14. After receipt of the Permit Notice, the plaintiff wrote the defendant through Solicitor C.A.B. Akparanta, Esq., to vacate the buildings and premises to enable the repairs to be carried out. The defendant refused to yield up possession of the property in dispute and in a letter dated 14th February, 1976 through his Solicitors G. A. Graham Douglas & Co. demanded to be paid a sum of N4,000.00 said to be the amount he spent on making the building habitables. The said plaintiff’s Solicitor’s letter and the reply thereto are hereby pleaded and will be relied upon at the trial.
15. The plaintiff at no time authorised the defendant to make any repairs on his behalf.
16. When the plaintiff brought some persons among whom were Dennis Chukwuka and David Ananandu to inspect the buildings and premises with a view to effect necessary repairs, the defendant organised a gang of people to resist plaintiff’s entry by force.
17. Despite the above letters and publications and in spite of all entreaties by the plaintiff, the defendant has continued to occupy the property in dispute and has in addition put in tenants from whom he collects and keeps rents and refused to pay any rent to the plaintiff.
18. By failing to allow the plaintiff to inspect the buildings and premises to effect repairs to put in tenants and by words the defendant has claimed to be entitled to the ownership of and proceeds from the property in dispute.
19. Wherefore the plaintiff claims from the defendant as follows:
a) That the property known as No.2 Amaigbo Lane, Mile 2 Diobu, Port Harcourt, is the property of G. O. Ekwelendu – the plaintiff and not that of the defendant.
(b) An account be taken of all monies collected or ought to have been collected by the defendant as rent from the property in dispute from 5th June, 1975 (time of release) until judgment is delivered and the amount found due to be paid by the defendant to the plaintiff.
(c) An Injunction to restrain the defendant and or his agents from collecting rents from the said buildings and premises or otherwise treating the same as his property.
(d) Possession of the said No.2 Amaigbo Lane, Mile 2, Diobu Port-Harcourt.
Dated at Aba this 25th day of October, 1978.
(Sgd.) N. S. Chukwunenye, Esq.,
pp: A. S. Nwala & Co.,
Solicitors & Advocates,
18 Constitution Crescent,
Aba.”
From the above Amended Statement of claim, the plaintiff’s case simply put is as follows:-
“1. That the property in dispute consists of a permanent building and outhouses he erected on the premises known as No.2 Amaigbo Lane, Mile 2, Diobu Port Harcourt about 1968.
2. That as a result of the Nigerian Civil War, he fled Port, Harcourt.
3. That he returned to Port-Harcourt after the War in 1970 and found the defendant in occupation of his property without his leave or license.
4. That when he told the defendant he owned the property, he (the defendant) totally ignored him completely.
5. That the Abandoned Property Authority of the Rivers State Government managed the said property in trust for him.
6. That by an Instrument of Transfer made under “The Abandoned Property (Custody and Maintenance) Edict No.8 of 1969, the Rivers State Government released and transferred his property at No.2 Amaigbo Lane, Mile 2, Diobu back to him. From the date of that transfer, he regained his ownership of the property in dispute.
7. The release of his said property now in dispute was published in the Rivers State Gazette No. 26 Volume 7 Serial No. 121 of 3rd July, 1975.
8. That the Abandoned Properties Implementation Committee paid him all the arrears of rent collected during his period of absence from Port-Harcourt.
9. That he obtained a Building/Improvement Permit dated 11th December, 1975, permitting him to effect repairs on the property now in dispute.
10. That since the defendant refused to heed his warning to vacate his property, he (the plaintiff) through his Solicitor C. A. E. Akparanta formally requested the defendant to vacate (his property) and deliver up possession.
11. That the defendant replied through his Solicitor G. A. Graham Douglas & Co.
12. That part of the said letter from G. A. Graham Douglas & Co. read as follows:-
“… The inference one is likely to draw from your letter under reference is asking our client to give up vacant possession of No.2 Amaigbo Lane to your client, Mr. G. O. Ekwelendu. We will say that the permission granted your client to make repairs to the house does not mean and will not be taken to mean an order giving him vacant possession.
Your client can make whatever repairs he intends to make, but this must be done with the necessary care and diligence so that, the occupants of the building do not suffer any loss at all. It is therefore our instruction to ask you to advise your client that, he cannot deprive our client of his possession of the property in the manner, which is the present modus used by landlords in Port Harcourt in driving their tenants whom they cannot remove in view of the provisions of the Protection from Eviction Edict…. He (our client) spent well over N4,000.00 to make this building habitable. This sum of money, it was the decision of the Abandoned Property Authority to be refunded to our client by the owner, when the property is handed over to its owner. It is therefore our further instruction to bring this to the notice of your client so that the refund can also be considered by him.
Finally, we are to say that your client can carry out his improvement, but he must do so with the greatest care and diligence not unmindful of the rights of our clients over his possession of the building, as the Permission to Improvement if at all granted is not an order to Quit.
May wiser counsel prevail.
Yours faithfully,
G. A. Graham Douglas & Co.,
Solicitors”
This letter was pleaded by the plaintiff. I italicized parts of this all important letter which was tendered as Exhibit G to show that the defendant all along admitted that the property” in dispute consisting of a permanent building and outhouses did not belong to him. He was there only as a tenant and he wanted his possession as such tenant protected and the sum of N4,000.00 he spent on repairs refunded to him.
In the light of the above facts, clearly pleaded in the plaintiffs Amended Statement of Claim, one would expect clear and positive admissions or denials from the defendant consistent with the rules of pleadings. Since I set out the plaintiff’s Amended Statement of Claim in full, I might as well reproduce the defendant’s Statement of Defence in answer to the plaintiff’s case as pleaded. I have, however, to observe that there is a difference between answering the plaintiff’s case and setting up a totally different case by way of counter claim.
The defendant pleaded in defence as follows:-
STATEMENT OF DEFENCE
1. The defendant is not in a position to admit or deny paragraph 1 of the Statement of Claim.
2. The defendant save as admitting that he is a teacher denies the rest of the averment as contained in paragraph 2 of the Statement of Claim.
3. Save as admitting that the property in dispute is a permanent building. The defendant denies the rest of the averment and shall put the plaintiff to the strictest proof at the hearing of the case.
4. The defendant is not in a position to admit or deny paragraphs 4, 5 and 6 of the Statement of Claim and will put the plaintiff to the strictest proof at the hearing.
5. Save as admitting that the plaintiff visited defendant at the premises where the defendant lives, the defendant denies the rest of the averment as contained in paragraphs 7 and 8 of the Statement of claim.
6. The defendant admits paragraph 9 of the Statement of Claim.
7. The defendant is not in a position to admit or deny paragraphs 10, 11, 13 and 16 of the Statement of Claim.
8. Save as admitting that the plaintiff showed some documents relating to a property known as No.2 Amaigbo Lane, Port Harcourt, the defendant denies the rest of the averment and shall put the plaintiff to the strictest proof at the hearing.
9. Save as admitting that the defendant received letter from C.A.B. Akparanta, Esq., Solicitor demanding the and the defendant instructed his Solicitors, Graham Douglas & Co. to address a letter to the plaintiff in reply, the defendant denied the rest of the averment.
10. The defendant denies the averment as contained in paragraph, 17 and 18 of the Statement of Claim, and will further plead as follows:-
11. Sometime in 1970, he saw the land known for postal purposes as No. 34 Amaigbo Lane, Diobu, Port Harcourt. He approached the Abandoned Property Authority who granted him permission to complete the building whose foundation was the only thing then standing thereon and covered with weeds.
12. The defendant then went on and made a plan of the house which was approved by the Municipal Council, Port- Harcourt and proceeded on the erection of the building which now stands on the land and known for postal purposes as No. 34 Amaigbo Lane, Diobu, Port Harcourt. The defendant will found upon the various receipts for the purchase of the building materials and payment made to the masons carpenters and for labour in respect of the buildings at the hearing of the case.
13. Sometime during month of October, 1970, one Isaiah Nnanta Wobo, an Ikwerre man from Diobu, the owner of the land now in dispute commenced negotiations with the defendant for the sale and convey to the defendant all that piece or parcel of land known as No. 34 Amaigbo Lane, Port Harcourt. The negotiations were concluded in December, 1970, after the defendant had paid to the said Isaiah Nnanta Wobo, the sum of 1,500 Pounds now N3,000.00 value of the land. The receipts given to the defendant and the agreement dated 23/12/70 shall be founded upon at the hearing of the case.
14. In further answer to the averments as contained in the Statement of Claim, the defendant will say that later on a Deed of Conveyance dated 10/2/77 was duly made between the said Isaiah Nnanta Wobo and himself in respect of the said land which was duly registered as No. 20 at page 20 in Volume 68 of the Lands Registry in the office at Port Harcourt. The said Deed of Conveyance will be founded upon at the hearing of the case.
15. In further answer to the said averments as contained in the Statement of Claim, the defendant will say that the plaintiff has no land in any where known for postal purposes as No. 34 Amaigbo Lane or at No.2 Amaigbo Lane and he is not therefore entitled to the reliefs sought and contained at paragraph 19 of the Statement of Claim.
16. The defendant will urge the Court to dismiss the plaintiff’s claim as speculative.
17. Save as hereinbefore expressly admitted the defendant denies each and every allegation of fact as stated in the Statement of Claim as if the same are set out seriatim and specifically traversed.
DATED at Port Harcourt, this 29th day of May, 1978.
(Sgd.) G. A. GRAHAMDOUGLAS,
DEFENDANT’S SOLICITOR,
NO. 13, AGGREY ROAD,
PORT HARCOURT.
The basic rules of good pleading as they relate to the defence are as follows:-
(i) The defence shall deny all such material allegations in the Statement of Claim as the defendant intends to deny at the hearing. But there are certain denials that make no difference to the facts at all. One therefore should not deny the obvious.
(ii) Every allegation of fact, if not denied specifically or by necessary implication. or stated to be not admitted, shall be taken as established at the hearing and no further proof may be required of such fact.
(iii) Denials should neither be general nor evasive, but should be specific and should also deal with the point of substance as the truth or falsehood of each fact is within the knowledge of the defendant or could be obtained by interrogatories, discoveries and production of document. Pleading should deal with the real world and not one of make believe.
(iv) An averment in a Statement of Defence that a defendant is not in a position to admit or deny some specific allegation should mean what it says otherwise it should be taken as an admission.
(v) A defendant can allege new facts not stated in the Statement of Claim if that is necessary for his defence of the case as pleaded, otherwise the defendant will be deemed to be thereby setting up a counter-claim arid not necessarily answering the plaintiffs case.
Applying the above rules to the defendant’s Statement of Defence, one easily discovers that the essential facts forming the foundation of the plaintiffs case, as pleaded in his Statement of Claim, namely – that he built the houses now in dispute; that he abandoned them during the Civil War; that the Abandoned Property Authority took over these buildings and managed them as his trustee during the War; that after the Civil War, he was paid all the rents collected from “the property” and “the property” was later released to him by an Instrument of Transfer published in Gazelle No. 26 of 3rd July, 1975; that the defendant admitted in Ex. G occupying those buildings as a tenant – all these allegations were not specifically denied. Rather the defence in answer to these relevant paragraphs of the Statement of Claim – 6. 9, 10, 11, 13 and 16, merely pleaded – “The defendant is not in a position to admit or deny.” This Court in Messrs Lewis & Peat (N.R.I.) Ltd. v. A. E. Akhimien (1976) 1 All N.L.R. (Part 1) 460 held that ill order to raise an issue of fact that will then go to trial, there must be a proper traverse, and that, that traverse must be made either expressly or by necessary implication. A refusal to admit or deny does not raise an issue of fact.
In Overseas Construction Company (Nig.) Ltd. v. Creek Enterprises (Nig) Ltd. & Abandoned Property Authority (1985) 3 N.W.L.R. (Part 13) 407 at p.418, this Court held that:-
“The aim of ordering pleadings is, and has always been to secure from the defendant as many admissions as the facts and circumstances of each particular given case warrant and thus narrow the scope of the controversy – in legal parlance, narrow the issues……By and large every disputed question of fact is in issue…An issue of fact arises where a fact is maintained by one party and is controverted by the opposite party in the pleadings. As I observed in J. E. Ehimare & Anor. v. Okaka Emhonyon (1985) 1 N.W.L.R. (Part 2) 177 at p.183. when parties to an action have answered one another’s pleadings in such a manner that they have arrived at some material point or matter of fact affirmed on one side and denied on the other the parties are said to be at issue, they have joined issue and the question thus raised is called an Issue.
Trial Courts merely try issues of fact raised by the parties in their pleadings. Trial courts are not allowed to invent their own issues and start discussing such invented issues.
The aim of adjudication is to discover the truth as far as that is possible within our human limitations, and to find out the true bearing of the law on the facts as pleaded and as made issues, from those pleadings. In the instant case, all the salient facts pleaded in the Amended Statement of Claim were not traversed in the Statement of Defence and as decided in Lewis & Peat supra, no issue of fact arose that was to go to trial. The Court below at p.102 of the-record of proceedings held that:-
“The defendant/respondent’s case is very weak while the plaintiff/appellant had adduced sufficient evidence supported by undisputed documents from the proper authority to warrant the Court to enter judgment in his favour.”
The Court of Appeal was here being rather generous. Since there was no proper and effective traverse of the case pleaded by the plaintiff, no issue of fact arose from the pleadings, and that being so, the plaintiff should have had judgment on the pleadings. There was no need for a formal trial, when there was no issue arising from the pleadings warranting such a trial. Pleadings will lose their place in civil procedure and their intendment if our trial Courts fail to advert to their essential role of settling issues. Trial Courts merely try issues and pleadings, settle those issues. It is also incumbent on our trial Courts to discover (by carefully attending to the pleadings) what case the plaintiff is putting across. The case is the plaintiff’s case as per his claims. In the case on appeal, the plaintiff/respondent’s main claim is, as rightly found by the Court of Appeal, wholly circumscribed by and within the Abandoned Property Edict of the River State. It was not a case of declaration of title to land in Diobu as such. That being so, it was not necessary for the plaintiff, who based his entire case on the Abandoned Property Edict, to go into an entirely unnecessary excursion into the modes and niceties of proof of title to land as decided in Idundun & Ors. v. Okumagba (1976) 1 N.M.L.R. 200: (1976) 9 & 10 S.C.227 or to explore the limits of Ekpo v. Ita XI NLR 68 that deceptive and one of our most misleading cases. If the Conveyance, EX.Q, pleaded by the defendant was in issue – that is, if the defendant counter-claimed, basing his case on that Conveyance, that the different modes of establishing title to land would have arisen. But the defendant did not counter-claim and the Conveyance pleaded by the defendant had no place under the Abandoned Property Edict within whose exclusive limit the plaintiff’s case was securely posited.
Another point I will like to comment on rather briefly is the onus of proof on the plaintiff/respondent. Undoubtedly, there is an onus on the plaintiff to prove his case. The onus of proof is nothing more than an onus to prove any issue or the various issues arising from the pleadings. It is only when and where issues of fact arise from the pleadings of the parties that one can then determine what those issues are and on whom the onus of proof lies. A plaintiff can discharge the onus of proof in his pleadings: see Onyekaonwu & Ors. v. Ekwubiri & Ors. (1966) 1 All N.L.R. 32 at p.35. In this case, the plaintiff/respondent’s case, based on the Abandoned Property Edict, was not traversed. There was no issue of fact on the case presented by the plaintiff in his statement of claim. No one sets out to prove that which had not been denied. The trial court should have realised and adverted to that. The plaintiffs case as pleaded standing uncontroverted, thus needed no further proof. It was redundant that the plaintiff was made to prove what had not been denied. It was a travesty that after the proof (which was even uncalled for), he was denied judgment. Thank goodness, the Court of Appeal rectified the situation by reversing the perverse judgment of the trial Court. There is another fact pleaded in paragraph 14 of the plaintiff, Amended Statement of Claim which the trial Judge seemed to have brushed aside – and that is the letter dated 14th February, 1976, written by the defendant’s Solicitors, G. A. Graham-Douglas & Co. This letter was tendered as Ex.G Exhibit G is headed – “Notice of Intention to Repair No.2 Amaigbo Lane, Mile 2 Diobu, Port Harcourt, I have earlier on in this judgment reproduced relevant portions of this letter. The learned trial Judge found against the plaintiff on two grounds. The first ground at p.36 of the record of proceedings reads as follows:-
“The first thing in controversy between the parties is the identity of the land in question.”
There was in this case no dispute at all over what the learned trial Judge called “the identity of the land in question.” What the plaintiff pleaded in paragraph 3 of his Amended Statement of Claim at p.13 of the record of proceedings was:-
“3. The property in dispute consists of a permanent building and outhouses erected by the plaintiff on the premises known as No.2 Amaigbo Lane, Mile 2 Diobu, Port-Harcourt about 1968.”
In answer to the above, the defendant in his Statement of Defence at p.9 pleaded as follows:-
“3. Save as admitting that the property in dispute is a permanent building, the defendant denies the rest of the averment and shall put the plaintiff to the strictest proof at the hearing of the case.”
From the above, the parties are agreed that “the property in dispute” is the permanent building which the plaintiff claims he erected in 1968 at No.2 Amaigbo Lane. The parties did not, in their pleadings, make “the identity of the land in question” an issue in this case. It was wrong of the learned trial Judge to make it one for them. He had no such right. As this Court observed in Overseas Construction Ltd. v. Creek Enterprises Ltd. supra (another Abandoned Property case), the duty of a trial Court is limited, and strictly limited, and confined to trying issues arising from the pleadings.
The second ground on which the learned trial Judge refused to grant the G claims of the plaintiff is what he said at p.39 of the record:-
“I think a plaintiff must therefore establish how he came on the land.”
And this is where Ex. G becomes relevant. Exhibit G used such expressions as “vacant possession”. “our client is in possession of the property”, “landlords driving away their tenants under the pre of repairing the house.” Read as a whole, Ex.G is an admission by the defendant that he was the tenant of the plaintiff. The question that then arose was – Could defendant as a tenant question and probe the root of title of his landlord The correct legal answer is a positive and an unhesitating No. Exhibit G estopped the defendant from denying his landlord’s title and the trial Court from investigating that title which, in any event, was not an issue in this case, predicated as it was, on the release to the plaintiff of his “property at No.2 Amaigbo Lane, Mile 2 Diobu”, managed for him during the period of the Civil War by the Abandoned Property Authority, a property which the defendant/appellant occupied without the leave or licence of the plaintiff/respondent.
The Court of Appeal had this to say of Ex.G at p.97 of the record of proceedings:-
“This Exhibit “G” is reproduced at pages 45-46 of the record of this appeal. I have considered its contents and my view thereof is that the respondent/defendant was referring to the said building in dispute i.e. No.2 Amaigbo Lane ‘” If respondent/defendant was not referring to the building in dispute he should not have claimed the sum of N4,000 which he claimed to have spent in making the building habitable per paragraph 4 of the said Exhibit where his Solicitor went on to say that this sum of money was the decision of the Abandoned Property Authority to be refunded to our client by the owner, when the property is handed over to the owner. It is therefore our further instruction to bring this to the notice of your client so that the refund can also be considered by him.
By giving this instruction to his solicitor, the respondent/defendant has admitted the claim that the appellant is the owner of the said property in dispute i.e. No.2 Amaigbo Lane.
I totally and completely agree with the above view of the Court of Appeal. It is unfortunate that the learned trial Judge did not see Ex. G in the above light.
For all the reasons given above and for the fuller reasons in the lead judgment of my learned brother, Craig, J.S.C., which I now adopt as mine, I, too, will dismiss this appeal as completely lacking in merit. The decision of the lower court is hereby affirmed. There will be costs in favour of the plaintiff/respondent which I assess at N500.00.
AGBAJE, J.S.C.: The plaintiffs claims against the defendant are as follows:-
“1. That the property known as No.2 Amaigbo Lane, Mile 2 Diobu, Port Harcourt is the property of G. O. Ekwelendu – plaintiff and not that of the defendant.
2. An account be taken of all monies collected or ought to have been collected by the defendant as rent from the premises from 5th June, 1975 (time of release) until judgment is delivered and the amount found due be paid by the defendant to the plaintiff.
3. An injunction to restrain the defendant and or his agents from collecting rents from the said building or otherwise treat the same as his property.”
The case was tried in the High Court of Justice, Rivers State holden at Port-Harcourt. Pleadings were ordered, filed and delivered. Relevant to the plaintiffs claims are the following averments in his amended Statement of Claim dated 25th October, 1978:-
“3. The property in dispute consists of a permanent building and outhouses erected by the plaintiff on the premises known as No.2 Amaigbo Lane, Mile 2, Diobu Port-Harcourt about 1968.
3(A) The said land and buildings therein are shown on Survey Plan No. ECRS/10/77 dated 20th December, 1977 which is filed herewith.
5. Just after the Buildings have been completed in 1968, the civil war raged on to Port Harcourt and the plaintiff had no opportunity of retaining possession of the buildings.
9. Meanwhile the Rivers State Government treated the buildings along with others as abandoned property and Administered and controlled the same as such.
10. By an Instrument of Transfer made under “The Abandoned Property (Custody and Maintenance) Edict 1969 No.8 dated 24th September, 1975” the Rivers State Government released and transferred the Plot at No.2 Amaigbo Lane, Mile 2, Diobu, Port Harcourt to the plaintiff. The same Release was published in the Rivers State Gazette of Nigeria Official Gazette No. 26 Volume 7 Serial No. 121 of 3rd July, 1975. Both the said Instrument of Transfer and the said Gazette No. 26 are hereby pleaded and will be relied upon at the trial.
11. On the 8th February, 1977 the Resident of Abandoned Properties Implementation Committee invited the plaintiff by a letter to sign for and collect cheque(s) representing arrears of rent in respect of the property in dispute. The plaintiff honoured the invitation and was paid arrears of rent by the Federal Government. The said letter of invitation is hereby pleaded and will be relied upon at the trial.
13. In the meantime, the Port-Harcourt City Council Engineer by a Building/Improvement Permit dated 11th December, 1975 permitted the plaintiff to effect some repairs on the buildings and premises. The said permit Notice is hereby pleaded and will be relied upon at the trial.
14. After receipt of the Permit Notice, the plaintiff wrote the defendant through Solicitor C. A. B. Akparanta, Esq., to vacate the buildings and premises to enable the repairs to be carried out. The defendant refused to yield up possession of the property in dispute and in a letter dated 14th February, 1976 through his Solicitors G. A. Graham Douglas & Co. demanded to be paid a sum of N4,000.00 said to be the amount he spent on making the “building habitables. The said plaintiffs solicitor letter and the reply thereto are hereby pleaded and will be relied upon at the trial.”
The resistance of the defendant to the plaintiff’s claims was essentially contained in the following averments in his Statement of Defence dated 29th May, 1978:-
“11. Sometime in 1970, he saw the land known for postal purposes as No. 34 Amaigbo Lane. Diobu, Port -Harcourt. He approached the Abandoned Property Authority who granted him permission to complete the building whose foundation was the only thing then standing thereon and covered with weeds.
12. The defendant then went on and made a plan of the house which was approved by the Municipal Council, Port- Harcourt and proceeded on the erection of the building which now stands on the land and known for postal purposes as No. 34 Amaigbo Lane, Diobu, Port-Harcourt. The defendant will found upon the various receipts for the purchase of the building materials and payment made to the masons carpenters and for labour in respect of the buildings at the hearing of the case.
13. Some time during month of October, 1970, one Isaiah Nnanta Woho, an Ikwerre man from Diobu, the owner of the land now in dispute commenced negotiations with the defendant for the sale and convey (sic) to the defendant all that piece or parcel of land known as No. 34 Amaigbo Lane, Port Harcourt. The negotiations were concluded in December, 1970, after the defendant had paid to the said Isaiah Nnanta Wobo, the sum of 1,500 Pounds now N3,000.00 value of the land. The receipts given to the defendant and the agreement dated 23/12/70 shall be founded upon at the hearing of the case.
14. In further answer to the averments as contained in the Statement of Claim, the defendant will say that later on a Deed of Conveyance dated 10/2/77 was duly made between the said Isaiah Nnanta Wobo and himself in respect of the said land which was duly registered as No.20 at page 20 in Volume 68 of the Lands Registry in the Office at Port Harcourt. The said Deed of Conveyance will be founded upon at the hearing of the case.”
The plan of the land upon which the building in dispute stands was put in evidence as Exh. A. The plaintiff gave evidence in his own behalf and called two other witnesses. The evidence for the plaintiff was along the lines indicated in his amended Statement of Claim. The sheet-anchor in the evidence for the plaintiff in support of his claim is Exh. G. a letter from the defendant’s solicitor to the plaintiff’s solicitor in reply to the letter from the latter to the defendant demanding possession of the building in dispute from him. For this reason, I will reproduce the letter here in full:-
GRAHAM-DOUGLAS & CO.
Barristers & Solicitors.
G.A. GRAHAM-DOUGLAS, L.L.B., (LOND) B.L.
IBANIESEMABO
CHAMBERS,
U.B.A. BUILDING,
11 AGREE ROAD,
P. O. BOX 451,
PORT HARCOURT,
RIVERS STATE,
NIGERIA.
EXHIBIT G
PHC/363/77 14TH February, 1976.
G. O. EKWELENDU…… PLAINTIFF
AND
C. D. OLALE………. DEFENDANT.
C. A. B. Akparanta,
Barrister at Law,
Abinye Chambers,
97 Aba Road,
P.M.B.5169,
BORT HARCOURT.
Dear Sir,
NOTICE OF INTENTION TO REPAIR
NO.2 AMAIGBO LANE MILE
2 DIOBU, PORT HARCOURT: D
We act for Mr. C. D. Olale of No. 34 Amaigbo Lane, Diobu, Mile 2, Port Harcourt, who has referred to us your letter reference CA/GOE/2/44 of 31st January, 1976, with instructions to reply.
The inference one is likely to draw from your letter under reference is asking our client to give vacant possession of No.2, Amaigbo Lane to your client, Mr. G. O. Ekwelendu. We will say that the permission granted to your client to make repairs to the house does not mean and will not be taking to mean an order giving him vacant possession.
Your client can make whatever repairs he intends to make, but this must be done with the necessary care and diligence so that, the occupants of the building do not suffer any loss at all.
It is therefore our instruction to ask you to advise your client that, he cannot deprive our client of his possession of the property in the manner, which is the present modus used by landlords in Port Harcourt in driving their tenants whom they cannot remove in view of the provisions of the Protection from Eviction Edict.
We wish to say further that, the building which our client occupies is known for postal purposes as No. 34 Amaigbo Lane, Port Harcourt and not No.2 Amaigbo Lane as stated. Our client moved into the said property with the permission and consent of the Abandoned Property Authority in 1971. The property was then in an uncompleted state, with no roof, no windows and doors, not plastered and overgrown with weeds and grasses. He spent well over N4,000.00 to make this building habitable. This sum of money it was the decision of the A.P.A. to be refunded over to its owner. It is therefore our further instruction to bring this to the notice of your client so that the refund can also be considered by him.
Finally, we are to say that your client can carry out his improvement, but he must do so with the greatest care and diligence not unmindful of the rights of our client over his possession of the building, as the Permission to Improvement if at all granted is not an Order to Quit.
May wiser Counsel prevail.
Yours faithfully,
G. A. GRAHAM-DOUGLAS
PP: GRAHAM DOUGLAS & CO.
SOLICITOR.
CERTIFIED TRUE COPY
(SIGD)
PRINCIPAL REGISTRAR.
The plaintiff also put in evidence Exh. C, a copy of the Gazette pleaded in paragraph 10 of his amended Statement of Claim.
The defendant testified in his own behalf and called no other witness. The relevant portion of his evidence for the purposes of this appeal is as follows:-
“In 1970 I bought a land from the owner of the land and on getting ready to build the house I found that weeds covered a skeleton foundation.
I obtained permission of the Abandoned Property Authority. The Chairman himself, Barrister Ihua-Maduenyi, inspected it.
The general condition of the place was that it was all grass no building was there. After getting the approval I started building-bought materials, got mason to build up the house…………The land on which the building stands is mine. I say so because I bought it from Chief Isaiah Nnanta Wabo. He is a native of Diobu in Rivers State. These are receipts for part of money I paid………
We finally executed a document conveying the land to me. This is the document………
Admitted and marked Exhibit Q.”
The learned trial Judge Chief Robert P. K. Okara dismissed the plaintiffs claim in his judgment dated 26/4/79 holding as follows:-
“The first thing in controversy between the parties is the identity of the land in question. Plaintiff calls it 2 Amaigbo Lane, Mile 2, Diobu but defendant says where he lives is 34 Amaigbo Lane.
To establish the identity of the land the plaintiff tendered Exhibit A – survey plan; Exhibit B – Building plan and Exhibit – the Gazette Notice.
I find that neither in Exhibit A nor Exhibit B is there any mention of “2 Amaigbo Lane.”………
In this connection Exhibit C is of little help if at all. It has gone forth and called the land the plaintiff claims to be “2 Amaigbo Lane.” If this meant “2 Amaigbo Lane” and it was a typographical error that rendered it so, it was for plaintiff to adduce evidence to explain it……I think the plaintiff, at least in Exhibit A, should have clearly identified the land………….This he should have done when the plan was made in 1977 after the statement of Defence had been filed in which the identification of the land as 2 Amaigbo Lane” referred to in the pleadings Exhibit A has not even shown other land marks or plots of land owned by boundary neighbours in the vicinity to assist in locating It……………The plaintiffs evidence has been in this respect only of acts of ownership. I think there must be some attempt at proof of root of title of ownership before proceeding, if necessary, to acts of ownership……… To present act of ownership ONLY without more as proof of title is to attempt to prove title by the principle of prescription or long possession. In Nigeria, the Supreme Court has held, there is no law corresponding to the English rule of prescription (Mora & Ors. vs. Nwalusi & Ors. (1962) 1 All N.L.R. 681). As regards long possession the Supreme Court has held in several cases that it is a shield for the defendant who has been long in possession with which to defeat the claim of someone who seeks to oust him and not a sword for a plaintiff with which to establish title…….I think a plaintiff must therefore establish how he came by the land …………………………
It is my finding therefore that plaintiff should have given evidence of his root of title but has failed to do so and as such there is no evidence as to how he came by the land. I do not accept that acts of ownership constitute sufficient proof of title by a plaintiff, and particularly in this nature of claim which concerns land in a municipality. The plaintiff therefore has not only failed to prove the identity of land but has also failed to prove his root of title or manner of ownership of the land.”
The plaintiff appealed to the Court of Appeal, Enugu Division, which allowed his appeal, set aside the judgment of the trial Court dismissing his claim and in its place entered judgment in favour of the plaintiff against the defendant according to the plaintiff’s writ of summons. The defendant being dissatisfied with the judgment of the Court of Appeal has in turn appealed against it to this court. Here briefs of arguments were filed on both sides. According to the defendant’s brief of arguments the issues arising for determination in this appeal are as follows:-
“1. Whether the Justices of the Court of Appeal were right in allowing the appeal when none of the Exhibits tendered by the respondent in proof of his case identified the property in dispute as No. 2 Amaigbo Lane, Diobu Port Harcourt. If they did not, what will be the attitude of the Supreme Court
2. Whether in view of paragraphs 3 and 3A of the Amended Statement of Claim and paragraph 3 of the Statement of Defence, the land on which the house in dispute is situate is not in issue and if
so, whether respondent was not entitled to show his relationship with the land
3. When a Court of Appeal determines an Appeal on Speculation not backed by evidence received before the appeal court what would the Supreme Court do”
I shall take issue 1 first, relating to the identity of the building in dispute. I do not see how the defendant or the learned trial Judge can validly say in this case that the identity of the land upon which the building claimed by the plaintiff stands is not clear. I say this because the plaintiff pleaded a survey plan of the land and put the same in evidence as Exhibit A. It is not suggested that the plan Exh. A is not accurate. Where there is a plan of the land in dispute it cannot be rightly said that the land in dispute has not been ascertained with certainty, see Kwadzo v. Adjei 10 W.A.C.A. 274. So, all arguments based on the so called conflicting evidence as to the house numbers of the house on the land in dispute on the issue of the identity of that house pale into insignificance once there is a survey plan of the land itself upon which the house stands. I will also add that the defendant has not even attempted to connect the land on the plan on his deed of conveyance Exhibit Q with the plan Exh. A showing the land in respect of which the plaintiff has brought his action. So, it is nigh impossible for him to resist the plaintiffs claims, by Exh. Q, effectively or even successfully: See Elias v. Suleiman & Ors. (1974) 1 N.M.L.R. 193 at 201.
What then remains to be decided having regard to the issues submitted for determination here is whether on the totality of the evidence in this case the plaintiff was entitled to judgment on his claim to title to the building on the land in the plan Exh. A against the defendant.
Perhaps the strongest point made for the defendant by his counsel both in the defendanfs brief of arguments and in oral submissions is that the defendant has proved by the Conveyance Exh. Q that he is the owner of the land upon which the building in question stands, having acquired the same from its true owners. It is also pointed out, and I must say correctly, that the plaintiff has led no evidence at all as to how he acquired the land upon which he built. So it is being submitted that the plaintiff by coming on the land and building on it will be a trespasser vis a vis the defendant claiming through the true owners of the land. The logical conclusion of this argument is that the land in dispute and the building on it cannot properly be described as abandoned property within the meaning of the expression in The Abandoned Property (Custody and Maintenance) Edict 1969 of the Rivers State.
The achilles’ heel in this submission as I have shown above is that the defendant has not related the land on the plan on his Conveyance Exh. Q to the land in dispute in this case as per the plan Exh.A. Besides what I have just said there is the following to be said about the contention for the defendant that by Exh.Q he has acquired title to the land in dispute. Exh. Q was tendered without any objection to its admissibility. So it is admissible for all legitimate purposes. Sodimu v. N.P.A. (1975) 4S.C. 75. Because of the provisions of Section 90(1) of the Evidence Act, the statements in Exh. Q are admissible in evidence subject to conditions. But as I have just said Exh.Q was admitted in evidence without any objection to its admissibility. And B since it is not inadmissible per se the document is legal evidence. But the weight to be attached to the Statements in Exh. Q is another matter. In this regard one must need bear in mind what this court said in Ogunsanya v Taiwo (1970) 1 All N.L.R. 147 at 152-153:-
“Section 90 of the Evidence Act does not create a new type of category of evidence and for the avoidance of doubt section 91(1) prescribes as follows:-
“91(1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Ordinance, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.”
The question therefore is if the learned trial Judge had realised that there was some direct evidence in Exhibit 1A that Raji Akintola was head of the family, what probative value would he have given that piece of evidence, not only intrinsically by itself but also-in-the-con of the entire case including the contents of the several documents produced in evidence in this case”
There are no circumstances at all present in this case from which any inference can be drawn as to the accuracy or otherwise of the statements in Exh. Q. Needless to say that since the statements are contained in a document made in February, 1977 the statements cannot be in a document of he age prescribed in Section 129 of the Evidence Act for it to be said that they are presumed to be true except in so far as they may be proved to be inaccurate. In the circumstances, I have no hesitation that the weight which any tribunal properly directed as to the law and the evidence in this case will attach to the statements is little or nothing. So in my judgment Exh. Q in this case by itself alone is not sufficient evidence that the defendant has acquired title to the land upon which the building claimed by the plaintiff stands from the true owners of the land.
Having shown that in the circumstances of the case in hand, Exh. Q the Deed of Conveyance upon which the defendant relied is hardly worth the paper upon which it was written, the rest of the printed evidence shows that the plaintiff has proved that he built the building on the land on the plan Exh. A. The legal effects of Exh. G the letter from the defendant’s solicitor to the plaintiff’s solicitor, in the light of the rest of the evidence for the plaintiff, are that the defendant has admitted that:-
(a) the property was once administered by the relevant authority under the Abandoned Property (Custody and Maintenance) Edict of the Rivers State;
(b) the plaintiff is the owner of the building;
(c) the defendant sought and obtained permission of the relevant authority to effect some repairs to the building; and
(d) when the building was released to the plaintiff by the relevant authority and the plaintiff demanded its possession from the defendant the latter asked the plaintiff as the owner of the building to recompense him for the expenses he incurred in respect of the repairs to it.
There is nothing from the defendant to detract from the effects as just stated which necessarily must be given to his admissions in his letter Exh. Q. So the due weight that can only be given to the admissions is that they are entirely binding on him.
See Okai II v. Ayikai II 12 W.A.C.A. 31 at 32.
Section 4 of the Abandoned Property (Custody and Maintenance) Edict says:-
“(1) The legal ownership of every abandoned property situate within the State is hereby vested in the Authority which shall hold, control and manage such property for the benefit of the owner thereof, and shall in particular and without prejudice to the generality of the foregoing provision –
(a) Charge, collect and enforce the demand of rents and other profits and all moneys whatsoever due and owing in respect of any such property;
(b) make arrangements for the maintenance and upkeep of any such property;
(c) pay all dues and defray all expenses in the nature of ground and other rents, rates, taxes and all outgoings whatsoever due and payable in respect of every such property;
(d) maintain full and proper accounts of all moneys collected in respect of any such property and deal with such moneys collected in the manner set out in this Edict; and
(e) do everything which in its opinion or in the opinion of the Military Governor is necessary for the proper management of such property.”
The relevant authority in which title to the building in dispute was vested under the Abandoned Property (Custody and Maintenance) Edict has released it to the plaintiff as its owner.
In the circumstances I am satisfied that the Court of Appeal, Enugu Division, on the evidence and the law was right in entering judgment for the plaintiff and that the trial court was wrong in dismissing his claims.
In the result for the above reasons and the fuller reasons given in the lead judgment of my learned brother, Craig, J.S.C., which I have had the benefit of reading in draft, I too dismiss the appellant’s appeal with costs as assessed in the lead judgment.
Appeal dismissed.
Appearances
G.A. Graham-Douglas, S.A.N. (with him, J.C. Okonkwo) For Appellant
AND
Miss I. M. Onwuamuegbu (for G.E. Ezeuko) For Respondent
