EMMANUEL CHIJIOKE ORLU V CHIEF MPAKABOARI GOGO-ABITE
In the Supreme Court of Nigeria
Friday, January 22, 2010
GEORGE ADESOLA OGUNTADE, JUSTICE, SUPREME COURT
FRANCIS FEDODE TABAI, JUSTICE, SUPREME COURT
IBRAHIM TANKO MUHAMMED, JUSTICE, SUPREME COURT
JOHN AFOLABI FABIYI, JUSTICE, SUPREME COURT
OLUFUNLOLA OYELOLA ADEKEYE, JUSTICE, SUPREME COURT
EMMANUEL CHIJIOKE ORLU
CHIEF (DR.) MPAKABOARI GOGO-ABITE
BURDEN OF PROOF RESTS ON THE PARTY CLAIMING OWNERSHIP
“It is settle law that once it is proved that the original ownership of property is in a party, the burden of proving that the party has been divested of the ownership rests on the other party.” Per Oguntade J.S.C
WAYS OF PROVING OWNERSHIP OF LAND
“As pronounced by this court in Idundun v. Okumagba (1976) 9-10 SC 227, there are five ways of proving ownership of land.” Per Fabiyi, JSC
BURDEN OF PROOF IN CIVIL MATTERS
“It is now settle that in civil matters, a plaintiff has the burden of proof to establish his claim. It does not shift to the defendant.” Per Fabiyi, JSC
HOW NATIVE LAWS AND CUSTOMS ARE ESTABLISHED
“Native law and custom are matters of evidence to be decided on the fact presented before the court in any particular case, unless it is of such notoriety and has been so frequently followed by the court that judicial notice would be taken of it without evidence required to proof.” Per Fabiyi, JSC
J. A. FABIYI, JSC. (Delivering the Judgment by the Court):
This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division (hereinafter referred to as the court below) which on 5th March, 2002 upheld the decision of Ungbuku, J. (as he then was) of the high Court of Justice, Port Harcourt dated 10th April, 1991 dismissing the Plaintiff/Appellants suit for failure to prove his case. The claim of the plaintiff at the trial court as depicted in paragraph 13 of the Statement of Claim read as follows:-
‘(1) A declaration that the plaintiff is entitled to the statutory right of occupancy over and in respect of the property known as No. 21 Nsukka Street Mile 1, Diobu Port Harcourt.
(2) A declaration the No. 21 Nsukka Street, Mile One Diobu was never an abandoned property within meaning of law and that the purposed sale or assignment of the said property to the defendant by the Rivers State Government or its agent is null and void.
(3)A perpetual injunction restraining the defendant by himself or agents or servants from interfering with the plaintiffs use and enjoyment of the said property.
It is pertinent to depict briefly the case put up by the parties based on their pleadings as filed and exchanged. The appellant, as plaintiff, maintained that the property in dispute was inherited by him as the first son of his father in accordance with Ikwerre native law and custom. It was originally leased to James Orlu by the them Eastern Nigeria Government for seven years and when same expired, the said government gave him a new building lease and transferred it to him (plaintiff). The Ministry of Lands wrote Exhibit L to the tenants. Thereafter he started to collect the rents from the tenants. He renovated the house and also paid property rates. The case put up by the respondent it that the area known as mile 1, Diobu, Port Harcourt was originally called Rumuwijo Village. In 1956, the government of Eastern Nigeria cleared the village for the purpose of development. James Orlu, the plaintiffs grandfather as one the original owners of the land was allocated Plot 15 block 220 otherwise called no. 21 Nsukka Street, Mile 1, Diobu, Port Harcourt for seven (7) years. When the duration of the lease was running out, James Orlu entered a building agreement with a contractor, Urum Kalu Ude to put up the building and collect rents from the house until his outlay was realized vide a building agreement Exhibit A dated 22nd March, 1961. James Orlu also donated an Irrevocable Power of Attorney, Exhibit F to Urum Kalu Ude on the same date. James Orlu applied for government consent in October 1961 to assign the property to Urum Kalu Ude. Sunday Orlu, the original plaintiff, signed as a witness to the application for consent. The application was approved and James Orlu assigned the property to Urum Kalu Ude. James Orlu realized that he could not pay back Urum Kalu Ude the cost of the outlay and so he agreed to sell the property. Necessary statutory consent was obtained with the knowledge of his son, Sunday Orlu who turned round to deny that his father sold the property to Urum Kalu Ude. He now claims ownership of the property by inheritance. When the head lease for seven (7) years expired the then Government of Eastern Nigeria renewed the lease to Urum Kalu Ude for another term of sixty (60) years from January 1964 as extant in Exhibit P. the unexpired term of this lease was what Urum Kalu ude assigned to the Respondent after the necessary consent of the Government . The learned trial judge applied the relevant laws to the facts garnered by him. He found that the plaintiff failed to prove his case and dismissed it on 10th April, 1991. The plaintiff felt unhappy with the decision of the trial court and appealed to the court below which on 5th March, 2002 dismissed same. This is a further appeal to this court by the plaintiff/appellant who desires to try his chance. Briefs of argument were filed and exchanged by the parties in this court On 26th October, 2009 when the appeal was heard, learned counsel adopted appellants amended brief of argument as well as amended appellants Reply brief both filed on 13/3/09 and urged that the appeal be allowed. Equally, learned counsel for the respondent adopted respondents brief of argument filed on 22nd April, 2004 and urged that the appeal be dismissed. The two issues couched for the determination of the appeal by the appellant at page 5 of his brief of argument read as follows:-
‘(i) Given the state of the pleadings and evidence, which of the parties, appellant or respondent, bears the onus of proof in his case? In the alternative Whether the onus of proof in this case is not on the respondent.
(ii) Whether the respondent successfully discharged the onus on him to prove that James Orlu) Appellants father) divested himself of his original right/title to the property in dispute to his (Respondents) vendor, Urum Kalu Ude.’
The three issue formulated for determination of the appeal by the respondent as contained on page 6 of his brief of argument read as follows:-
‘(i) having regard to the grounds of appeal and the particulars in support, whether the grounds are grounds of law alone or mixed law and facts in which case the appellant ought to have sought the leave of either the Court of Appeal or Supreme Court before commencing the appeal.
(ii) Having regard to the nature of the case, pleadings and evidence, who bears the burden of proof of title? And if the burden had shifted to the respondent, has he successfully discharged the onus of proof that James Orlu (the appellants grandfather) divested himself of his original title to the property in dispute to respondents vendor, Urum kalu Ude?
(iii) Whether the learned Justices of the Court of Appeal were right in upholding the trial judges decisions in admitting in evidence the Irrevocable Power of Attorney donated by James Orlu to Urum Kalu Ude (Exhibit F) and the Deed of Assignment (Exhibit O).’
I need to say it here that the respondents issues 1, as reproduced above, has no bearing with any of the grounds of appeal. In challenging the competence of the grounds of appeal, the respondent should have filed a Notice of Preliminary objection as dictated by Order 2 Rule 9 (1) and (2) of the Supreme Court Rules, 1999. Having failed to comply with the stated of court, respondents issues I hangs on nothing and same should be discountenanced. I hereby pronounce accordingly. The first issue formulated by the appellant, put simply, is which of the parties bears the onus of proof in this case? It is now settle that in civil matters, a plaintiff has the burden of proof to establish his claim. It does not shift to the defendant. See Elias v. Disu (1961) All NLR (Pt. 1) 215 at 220. The onus of proof in a suit for declaration of title, as in this appeal, lies on the plaintiff and he must succeed on the strength of his case and not on the weakness of the defendants case, if any. See Kodilinye v. Mbanefo Odu (1935) 2 WACA 336; Akinola v. Olumo (1962) 1 SCNLR 352 Mogaji v. Cadury Nig Ltd. (Pt.1985) 2 NMLR (Pt. 7) 393. Let me also say it that as pronounced by this court in Idundun v. Okumagba (1976) 9-10 SC 227, there are five ways of proving ownership of land. They are as follows:-
1. by traditional evidence
2. by production of documents of title.
3. Acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner.
4. Acts of long possession and enjoyment of the land.
5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.The plaintiff/appellant herein at the on-set relied on traditional evidence. He claimed that he inherited the property as the first son vides Ikwerre native law and custom.
On this point, the learned trial judge at page 92 of the Record of Appeal found as follows:- ‘The plaintiff has by his pleading and evidence in court, brought into issue the Ikwerre Native Law and Custom on Administration of Estate and Succession/Inheritance. Native law and custom are matters of evidence to be decided on the fact presented before the court in any particular case, unless it is of such notoriety and has been so frequently followed by the court that judicial notice would be taken of it without evidence required to proof. See Giwa v. Erinmilokun (1961) 1 All NLR (pt.2) 294…………………… Neither the plaintiff nor his witness PW2 gave evidence on the custom of inheritance in Ikwerre Land. The particular custom being relied upon by the plaintiff has not been so frequently used by the courts that judicial notice would be taken of it without evidence required in proof.’ The court below, at page 145 of the record of appeal pronounced as follows on the point:- ‘The Ikwerre Native Law and custom on which he based his claim was not pleaded. It is a fundamental principle of law that where a party intends to set up and rely upon native law and custom, the custom alleged must be specifically pleading. The appellant failed woefully to plead and prove Ikwerre Native Law Custom which governs inheritance upon which he predicated his claim.’ I completely agree with the two courts below. It is extremely important that custom should be strictly proved. Though such proof is not by the number of witnesses called, it is not enough that one who asserts the custom should be the only witness. Another witness who is verse in the alleged custom should also testify. This is as pronounced by this court in the cases of The Queen v. Chief Ozogula (1962) WNLR 136; Adeyemi & Ors. V. Alhaji Shitu Bamidele & Ors. (1968) 1 All NLR 31. In this matter, the appellant, who rooted his claim on inheritance vide Ikwerre Native Law and Custom failed to adduce any serious evidence in that direction. Both the appellant and his witness, PW2 failed to adduce any evidence on the point despite the fact that the custom being, relied upon has not been so frequently used by the courts that judicial notice would be taken of it without evidence required in proof; as found by the learned trial Judge. The conclusion on his point is clear. It is that the appellant has failed to prove his entitlement to the property through traditional evidence. There is another option open to the appellant. It is for him to prove ownership of the property by production or title document(s). Unfortunately for him he had no letters of Administration to administer the estate of the late Sunday Orlu. This is as provided in section 2 of Administration (Real Estate) Law, Cap 3, and Laws of Eastern Nigeria 1963. The appellant had no documents to depict clearly that the property had been legally assigned to him. The appellant who asserted that he had relevant documents has the onus of proof to establish such facts vide the provision of section 135 (1) Evidence Act, 1990, In short, the appellant failed to prove ownership by tendering a subsisting title document as James Orlu, through whom he claimed, divested himself of the property in dispute since 28-4-62 by assigning his interest in Exhibit A to Urum Kalu Ude as evidenced in Exhibit O. The property was no longer available as from the said date to be inherited by the plaintiff or any other person claiming through James Orlu The appellant also tried to rest his title on long possession by virtue of reaction 146 of Evidence Act which provides that a person who claims title by being in possession must be shown to be in possession. It is on record that the original plaintiff occupied only one room out of 34 rooms, in the property in dispute. He said he put in tenants who were paying rent but stopped doing so. He failed to tender any receipt issued to any tenant. As well, he did not call any tenant to testify on his behalf. The learned trial judge was right in arriving at the conclusion that there were no documents for receipts and property rates to be tendered by the appellant. The provision of section 149 (d) Evidence Act should operate against him. He did not prove acts of ownership, long possession and enjoyment sufficient, positive and numerous enough to warrant and inference that he is the true owner of the property in dispute. See Idundun v. Okumagba (supra) The respondent, on his own part, testified that he put in tenants and collected rents from them. He also paid ground rents to the Government and tendered Exhibits M, M1 and M2. It appears that he was able to show better title. See Amakor v. Obiefuna (1974) 1 All NLR 119, Aromire v. Awoyemi (1972) 1 All NLR (pt. 1) 101. The appellant failed to prove exclusive possession. His claim no doubt, rest on shifting sand and should fail at the end. See Arabe v. Asanlu (1980) 5-7 SC 78 at 81; Kodilinye v. Odu (supra). It is clear to me that the appellant, who has the burden of proof failed in all directions. The burden of proof remains at the door steps of the appellant. It did not shift to the respondent since the appellant failed to establish his title by any known means. I resolve issue one (1) against the appellant and in favour of the respondent. Issue (ii) is whether the respondent successfully discharged the onus on him to prove that James Orlu (appellants father) divested himself of his original right/title to the properly in dispute to his (respondents) vendor, Urum Kalu Ude. On behalf of the appellant,it was seriously contended that Exhibits F and O, Irrevocable Power of Attorney by James Orlu to Urum Kalu Ude and Deed of Assignment, respectively were not properly admitted by the learned trial judge. The appellant claimed that both exhibits arc defective because the copies tendered were neither signed nor thumb printed and bore no jurat. On behalf of the respondent, it was submitted that the respondent gave evidence that the originals of Exhibits F and O were missing and DW2, a Deputy Director of Lands gave evidence and tendered Exhibit O, a certified true copy of the original which conforms with section 17(3) and section 27 Land Instrument Registration Law Cap. 72 Laws of Eastern Nigeria 1963 as applicable in Rivers State. The case of Jules v. Ajani (1980) 5-7 SC 96 at 105 was cited. Learned counsel stressed that Exhibit O complied with the law and was rightly admitted. Learned counsel for the respondent observed that Exhibit A and F were made on the same day. He felt that signed Exhibit A was thumb-printed and jurat was duly signed, the original of Exhibit F must also have been thumb-printed with jurat signed. Evidence was led that the original of Exhibit F was lost and certified true copy from the records of the Deeds Registry was tendered. He submitted that Exhibit F was properly admitted in evidence. I do not see the rationale for the fuss generated with respect to the admission of Exhibits F and O by the learned trial judge. In Salami v. Savanah Bank (Nig) Ltd (1990) 2 NWLR (Pi 120) 100. It was held that while the writer or preparer of a document signed by an illiterate cannot take advantage under it unless the provisions of the Illiterate protection Law are strictly complied with, where the document creates legal right between the illiterate and the person other than the writer or the preparer of the document, not only is the document admissible but all pieces of evidence may be adduced or introduced to prove what happened at the time the document was prepared and signed. In this matter, the respondent is not the maker of the document but the appellants father, James Orlu. I agree with the court below that Exhibit F is admissible in evidence. See: Ezeka v. Ndukwe (1981) All NLR 564. The contention of the appellant that Exhibit O was executed in 1962 while James Orlu was alleged to have died in 1961 was found to lack substance by the court below on the ground that there is nothing to show that James Orlu died in 1961. I agree with the court below in that from my perusal of the record I cannot see any authentic evidence that he died in 1961 Apart from the above Exhibits F and O were certified true copies of the documents tendered from proper custody by DW2, a Deputy Director of Land and in compliance with the provisions of section 17 (3), section 27 of Land Instrument Registration Law cap.72 Laws of Eastern Nigeria, 1963. See Jules v. Ajani (supra). I must resolve issues 2 against the appellant and in favour of the respondent. I am of the considered view that this matter principally has to do with findings of fact by the two courts below. The finding of fact by the learned trial judge were amply supported by the evidence on record. The court below was right in affirming the findings. I see no trace of misdirection as to the onus of proof of title. This court will not interfere unless for compelling reasons clearly depicted. I cannot see my way clear in interfering with the concurrent finding of fact able arrived at by the two courts below. See: Seven Up Bottling Co. v. Adewale (2004) 4 NWLR (Pt.862) 183; Anaeze v. Anyaso (1993) 5 NWLR (Pt.t291) 1; Kale v. Coker (1982) SC 252; Oduntan v. Akibu (2000) 7 SC (pt.2) 106.
In conclusion. I affirm the judgment of the court below. The respondent is entitled to cost assessed at N50,000:00 against the appellant. J.A.FABIYI JUSTICE, SUPREME COURT E.A. Amadi Esq.(with him K.K.G. Ogbonna) for the Appellant.
I.T. MUHAMMED, JSC:
I have the advantage of reading the judgment of my learned brother, Fabiyi, JSC. I agree with his reasoning and conclusion that the appeal lacks merit. I too, dismiss the appeal I abide by all consequential orders made therein including order as to costs.
GEORGE ADESOLA OGUNTADE, JSC :
The appellant was the plaintiff at the High Court of Rivers State, Port Harcourt where he claimed against the respondent as the defendant the following reliefs:
(a) A declaration that the plaintiff is entitled to the statutory right of occupancy over and in respect of the property known as No. 2 Nsukka Street, Mile 1, Diobu, Port-Harcourt.
(b) A declaration that No. 21 Nsukka Street, Mile 1, Diobu, was never an abandoned property within the meaning of the law and that the purported sale or assignment of the said property to the defendant by the Rivers State Government or its agent is null and void.
(c) A perpetual injunction restraining the defendant by himself or his agents or servants from interfering with the plaintiffs use and enjoyment of the said property. The parties filed and exchanged pleading after when the suit was tried by Ungbuku J. (as he then was). On 10-4-91, the trial judge in his judgment dismissed the plaintiffs case .The plaintiff was dissatisfied with the judgment of the trial court. He brought an appeal against it before the Court of Appeal sitting at Port Harcourt (hereinafter referred to as the court below) on 5-03-02; the court below in its judgment dismissed the appeal and affirmed the judgment of the trial court. Still dissatisfied, the plaintiff has come before this court on a final appeal. In the appellants brief before this court, two issues were identified as arising for determination in the appeal. The issues are; (i) ‘Given the state of the pleadings and evidence, which of the parties, Appellant or Respondent,bears the onus of proof in this case? (ii) Whether the Respondent successfully discharge the onus on him to prove that James Orlu, (appellants father) divested him self of his original right/title to the property in dispute to his (Respondents) vendor, Urum Kalu Ude’ The respondent in his brief has contended that the three grounds of appeal raised by the appellant required the leave of the court below or the Court pursuant to section 233(2)(a) of the 1999 Constitution of Nigeria. It was contended further that as no such leave was obtained, the appellants appeal was liable to be struck out. The appellant in his Reply brief has argued that all the three grounds of appeal he raised were of law for which he did not require the leave of the court below or this court. I should first consider the objection raised concerning the competence of the appeal. In all, the appellant raised three grounds of appeal. Two were raised in the Notice of appeal filed on 23/05/02 and in the amended notice of appeal filed on 30/9/02. The three grounds of appeal read thus;
The learned Justices of the Court of Appeal erred in law when they held that Ext. F (the power of Attorney) in the proceedings was rightly admitted in evidence by the learned trial Judge.
(i) The said Ext. F did not comply with the mandatory provisions of the Illiterate protection ……….. (ii) The document Ext. F (the Power of Attorney) cannot, on the face of it, be the true copy of whatever document (if any) it purports to be. (iii) The cases of Oseni v. Dawodu (1994) 4 NWLR (Part 339) 390 at 404 and Salami v. Savannah Bank (1990) 2 NWLR (Pt. 130) 106 at 122 relied upon by the court below are irrelevant in this case. (iv) The wrongful admission of the document Ext. F in evidence occasioned a miscarriage of justice on the Appellant.
The learned Justices of the Court of Appeal erred in law when they held that Ext. O (the Deed of Assignment) in the proceedings was rightly admitted in evidence by the learned trial Judge.
(i) The purported vendor of the said Ext. O James Orlu, (original Appellants father), did not sign or thumb-print the document. (ii) The purported interpreter did not also sign the document. (iii) The document, Ext. O did not comply with provisions of the Illiterate Protection Law Cap. 64, Laws of Eastern Nigeria 1963. (iv) The purported Deed of Assignment Ext. O did not carry on its face, as in normal, the certificate of consent of the Governor. (v) The wrongful admission of Ext. O (the Deed of Assignment) in evidence occasioned a miscarriage of justice on the part of the Appellant.’
The learned Justices of the Court of Appeal misdirected themselves in law in not direction themselves as to where the onus of proof lay in this case when they concluded as follows:- ‘The traditional evidence given by the Appellant is not cogent and compelling to entitle him to a declaration of title to the land in dispute.
1. ‘The parties did not join issue on traditional history 2. The Respondent having admitted in his pleading that James Orlu (Appellants father) was the original owner/lessee of the land in dispute and the Urum Kalu Ude (Respondents vendor) as contractor, built the house on the land for James Orlu, the onus of proof shifts to the Respondent to show that James Orlu divested himself of his right/title to the land in dispute in favour of the said Urum Kalu Ude. 3. Both the trial court and the court below did not direct their minds to the provision of S.146 of the Evidence Act. “It is manifestly clear from the first and second grounds of appeal above that the grouse of the appellant is that two documents tendered by the despondent at the trial ought not have been received in evidence. The documents were exhibits F and O These grounds being complaints about wrongful admission of evidence are grounds of law for which no leave is required. See Nwadike & Ors v. Cletus Ibekwe & Ors. (1987) 4 NWLR (Part 67) 718 at 733. The 3rd ground of appeal raised the question of misplacement of the burden of proof in a civil case. The substance of the complaint under this ground is that whereas in the nature of the case made by parties in their pleadings, the defendant/respondent should have borne the burden of proof; the burden was erroneously placed on the plaintiff/appellant. The error complained of under the 3rd ground is therefore one of law. See Atuyeye & Ors v. Emmanuel O. Ashamu (1987) 1 NWLR (Pt.49) 267 at 282. The objection raised in the respondents brief against the grounds of appeal filed by the appellant must be and is accordingly overruled. It is helpful starting point to examine closely the case made by parties in their pleadings. In paragraphs 4 to10 of his statement of claim, the plaintiff/appellant pleaded thus: 4. Nearly the whole of what is now referred to as Mile 1, Diobu including the building in dispute was originally a virgin land. The first possessor and occupier of the several years ago. By virtue of the original settlement the said land became the exclusive and absolute property of the said Woji in accordance with Ikwerre native law and custom. The land was subsequently named after its founder and became known as Woji Village. 5. Woji had several sons and daughters who became known and called Rumuwoji. Portions of the land were allotted to his sons who farmed and lived in the land. The portion allotted to the plaintiffs own lineage was in accordance with Ikwerre native law and custom successfully inherited by the following Nti Woji, Orlu Nti and James Orlu – the plaintiffs father 6. The plaintiffs father built houses in his compound and remained in possession with his wives and children until 1956 when the then Government of Eastern Region of Nigeria demolished most of the house in Runmuwoji village, including the plaintiffs father’s houses in order to make way for development and planning of Mile 1, Diobu. Like other natives, no compensation in cash was paid to the plaintiffs father, rather alternative plots of land were shown to the natives, including the plaintiffs fathers 7. Instead of ought conveyance of the plaintiffs fathers own plot of land as the situation demanded, the then Government of Eastern Region of Nigeria only thought it fit to lease the plot of land then known as and called plot 21 in Block 220 in the Wobo Layout to the plaintiffs father. The building Lease Agreement between the plaintiffs father and the then Eastern Region of Nigeria Government dated the 10th of may, 1960 and registered at No 38 at page 38 in Volume 237 of the Register of Deeds kept at the Lands Registry Enugu shall be founded upon at the hearing of this case 8. The plaintiffs father who could not immediately raise the money to develop the plot of land to specification and meet time limit imposed by the said Government in the lease agreement engaged the service of one Mr. Urum Kalu Ude of No. 208 Bonny Street, Port Harcourt who erected the building now known as and called No. 21 Nsukka Street, Mile 1, Diobu, Port Harcourt the land in dispute. The agreement between the plaintiffs father and the said builder Mr. Urum Kalu Ude dated the 22nd of March, 1961 is hereby pleaded. 9. On completion of the building the plaintiffs father and his family took possession and exercised acts of ownership without let or hindrance. The coconut tree planted by the plaintiffs father is still conspicuously standing at the back of the building in dispute. 10. When the plaintiffs father died in late 1961, the plaintiff in accordance with Ikwerre native law and custom inherited the building in dispute, remained in possession with his family and relations, exercised acts of ownership without let or hindrance. The plaintiff who has no other home other than the building in dispute has lived there with his families and his blood relations almost all his life, let out some rooms to tenants and paid the property rates. All the documents and receipts relating to this are hereby pleaded and shall be founded upon.’ (underlining mine) The defendant/respondent in paragraphs 7 (a) to 9 of his Amended Statement of defense pleading thus’ ‘7(a) In further answer to paragraph 6 of the Statement of Claim, defendant will contend at the trial that Woji village was acquired by the Eastern Region Government sometime in 1956, for development. The area was cleared, leveled and carved into building plots and named Wobo Layout Port Harcourt. (b) During the process one James Orlu was granted building lease in respect of Plot 15 Block 220 Wobo Layout also Known and called No.21 Nsukka Street, Port Harcourt and registered as No. 38 Page 38 in Volume 237 for a limited period of seven years, at the end of which the lease was granted to Urum Ude Kalu from whom the defendant acquired his title. Defendant admits paragraph 8 of the Statement of Claim. (9a) Before completion of the buildings and in furtherance of the agreement dated 22nd march 1961, James Orlu (plaintiffs father) on that day gave an irrevocable Power of Attorney in consideration of the Agreement. These documents are pleaded and will be relied upon (b) In furtherance of paragraph 7 of the said Agreement, when at the stipulated time James Orlu could not paid the f5,000.00 now N10,000.00 to Urum Kalu Ude the agreed sum. Jamse Orlu applied to the Land Officer for the consent of Hon. Minister of Town Planning to assign Plot 15 Block 220 Wobo to Urum Kalu Ude. This letter dated 20th October 1961 is pleaded and will be relied upon. A reply reference LP: 3670/54 February, 1962 was received. This document is also pleaded. (c) Following the approval of the application for consent to assign to the plot to Urum Kalu Ude, the Deed of Assignment dated 28th April 1962 and registered as No. 13 Page 13 Volume 318 was granted to Urum Kalu Ude. This document is pleaded and will be relied upon. (d) Since the original lease to James Orlu which was for only seven years, and the residue of which passed on the Urum Kalu Ude and expired on 31st December 1963, the Government of Eastern Region granted a new Building Lease to Urum Kalu Ude registered as No. 91 Page 91 in Volume 377 and commencing on 1st January 1964. This document is pleaded.’ A few important observations ought to be made on the pleadings of parties reproduced above. There was no dispute between the parties on their pleadings that the land in dispute was at some stage leased in 1960 to plaintiffs father following the acquisition of the land in 1956 by the Government of Eastern Region of Nigeria vide Deed Registered as No. 38 page 38 in Volume 237. The lease commenced on 1-1-57 and was to expire at the end of December, 1963. (See paragraph 4 of the Amended Statement of Defence) There was therefore no dispute as to December, 1963. So when did such interest pass to the defendants predecessor in title Mr. Urum Ude Kalu. The defendant pleaded that on 22-3-61, James Orlu, the plaintiffs father gave Urum Ude Kalu an irrevocable power of Attorney in consideration of an agreement. In paragraph 7(b) of the Amended Statement of defence the defendant pleaded that the plaintiffs could not repay a sum of E5,00.00 owed to Urum Kalu Ude. It was further pleaded James Orlu (plaintiffs father) sought the consent of the Hon. Minister town Planning vide a letter dated 20-10-1961, that the land be
EMMANUEL CHIJIOKE ORLU
CHIEF (DR.) MPAKABOARI GOGO-ABITE