Anthony Odunukwe V. The Administrator-general East Central State (1978)
LawGlobal-Hub Lead Judgment Report
OBASEKI, J.S.C.
The proceedings from which this appeal arose were commenced on the 21st day of July, 1971 in the Abakaliki Division of the High Court of Justice of the East Central State but which has since 1976 become a Division of the High Court of Anambra State. The particulars of claim as endorsed on the writ of summons by which the proceedings were commenced read:
“1. The plaintiff is the Administrator-General East Central State and administers the estate of Mba Ndukwe deceased by virtue of letters of administration granted to him on the 21st day of January, 1964.
- The deceased, Mba Ndukwe died possessed of the premises No. 22B, Gunning Road, Abakaliki in Abakaliki Division and this premises forms part of the estate of the deceased the plaintiff is administering.
- The plaintiff is entitled to the possession of No. 22B, Gunning Road, Abakaliki in Abakaliki Division hereinafter referred to as the premises.
- After the death of the said Mba Ndukwe deceased the defendant wrongfully took and still keeps possession of the said premises.”
On the order of the High Court, pleadings were filed and duly delivered and the plaintiff/respondent in his Statement of Claim added a third claim for an order of injunction.
In pursuance of the facts pleaded, the plaintiff’s claims as set out in his Statement of Claim were for:
“(1) Possession of No. 22B, Gunning Road, Abakaliki;
(2) Mesne profits from the 1st day of April, 1970 until delivery of possession;
(3) An injunction restraining the defendant, his family/agents/tenants from further entry into the said property.”
The issues joined in the pleadings were tried and at the conclusion of the hearing of evidence and address, the learned trial Judge, Araka, J., granted the claim for possession and injunction but dismissed the claim for mesne profits, in a considered judgment, the concluding portion of which reads:
“The defendant has refused to countenance the letter sent to him by the resident (Exhibit C) to surrender the premises to him pursuant to Section 61 of the Administrator-General Law. He had earlier refused to pay over to Mr. Ekpunobi (6th witness for the plaintiff) the agent appointed by the Administrator-General the rents he had been collecting from the said property. The plaintiff is therefore entitled to an order of possession and injunction against the defendant.
As to the claim for mesne profits, it is strange that there was not a scintilla of evidence on which the court could make an order in favour of the plaintiff….I have no alternative, therefore, than to non-suit the plaintiff on the claim for mesne profits.
It is therefore adjudged that the plaintiff do recover against the defendant possession of the premises mentioned in the particulars of claim that is to say, the property situate at No. 22B, Gunning Road, Abakaliki.”
And it is further ordered that the defendant do give plaintiff possession of the said property on the 5th day of July, 1972.
There will be an order of injunction restraining the defendant, his family agents/tenants from further entry into the said property.” (Underlining ours)
It is against this judgment that the defendant complains in this appeal. The five grounds on which the appeal was lodged are as follows:
(1) The learned trial Judge erred in law in holding that the plaintiff offered sufficient evidence to prove that the deceased, Mba Ndukwe was the owner of the property No. 22B Gunning Road, Abakaliki when the evidence given in court did not support such finding.
(2) The learned trial Judge erred in law in holding that the defendant had notice of the defect of title to the property which he the defendant purchased when there was no evidence in support of such finding.
(3) The learned trial Judge erred in law when he non-suited plaintiff in his claim for mesne profits when that arm of the claim should have been dismissed.
(4) The decision is against the weight of evidence. With leave of court
(5) The court erred in law by allowing the plaintiff/respondent to claim for both possession and injunction and for giving judgment for both claims.
It is at this stage necessary to state briefly the facts of the case, and they are, as found by the learned trial Judge, as follows:
“The freehold interest in a landed property situate at and known as No. 22B Gunning Road, Abakaliki the subject matter of this appeal, was vested in the Agbaja community of Abakaliki. Raphael Mbadugha (3rd plaintiff/witness) of 14 Awka Street Abakaliki, took a lease of the property from the Agbaja community and built a store on it. He (3rd plaintiff/witness) subsequently, in 1956/57 sold it to Mba Ndukwe (deceased) who rebuilt the store in 1960. After receiving 80pounds from Mba Ndukwe, Raphael Madugha (3rd plaintiff/witness) with the consent of the Agbaja community and the Abakaliki Urban Council, assigned his interests in the land to Mba Ndukwe, deceased. Mba Ndukwe (deceased) died on 25/2/62 and after his death his brother, Okeke Ndukwe intermeddled with the property and he, claiming to be the beneficial owner, sold it for 280pounds on the 1st day of May, 1963 (See Exhibit D). After the receipt of the money, he applied to the Urban County Council, Abakaliki for permission to assign the store (No. 16) on the land to the appellant and obtained the approval in writing (See Exhibit E dated 16th March, 1964). The ground given in his application for this approval was his false claim that he bought the land for him Okeke with money provided by him Okeke. However, Okeke Ndukwe’s claim that Mba Ndukwe acted as agent for him to purchase the property with the money provided by him was not accepted by the learned trial Judge and in his judgment the Judge found and concluded as follows:
I am satisfied that Okeke Ndukwe did not provide the purchase money for the said property. He claimed he bought the property in 1946/47. But the property was sold by Raphael Madugha in 1956/57….I am satisfied that Mba Ndukwe was the one who bought the property for himself, developed and made use of it until he died in 1962.”
On the 15th day of February, 1963, the widow of the deceased P.W. 6, Mrs. Ori Mba surrendered the administration of the estate of the deceased to the respondent. All efforts of the respondent short of force to persuade the appellant to surrender possession of the said property failed.
Mr. N. N. Anah, counsel for the appellant, arguing in support of ground 2 contended that the appellant was a purchaser for value without notice of the title of the deceased and that there was no evidence from which the learned trial Judge concluded that he had notice.
When it was pointed out to him that there was evidence by 2nd P/W Michael Ezechukwu Amete that the Deed of Assignment of the deceased was registered in the Lands Registry of the Abakaliki Urban Council Office, he abandoned further argument on (the aforesaid) ground.
If a purchaser fails to investigate title at all (Worthington v. Morgan (1949) 16 SIM 547) as the appellant admitted he failed to do in this case, he is fixed with constructive notice of everything that he would have discovered had he investigated the whole title for the full statutory period.
We therefore find no merit whatever in this ground of appeal and commend the learned counsel for the appellant’s wise decision not to pursue it any further. (See the Law of Real Property by Meggary and Wade 4th Edition, pp. 121-125).
Turning to ground 3, the learned counsel for the appellant submitted that the proper order on the claim for mesne profits should have been one of dismissal and not an order of non-suit since there was no evidence in support of the claim. We find this ground well founded.
The learned trial Judge himself in his judgment observed and commented as follows:
“As to the claim for mesne profits, it is strange that there was not a scintilla of evidence on which the court could made an order in favour of the plaintiffs”
We are therefore unable to see any justification in his decision to nonsuit the plaintiff. We are also unable to agree with him when he concluded and commented as follows:
“I have no alternative therefore than to non-suit the plaintiff on the claim for mesne profits.”
He had an alternative and that was to dismiss the claim for mesne profits. Neither the pleadings nor the evidence contained any particulars from which the learned trial Judge could have assessed and made an order for the payment of mesne profits.
It is settled law that he who asserts and claims must prove what he claims and where he has wholly failed to prove his claim the defendant is entitled to an order in his favour dismissing plaintiff’s claim. The plaintiff in such circumstances is not entitled to an order of non-suit giving him an opportunity to institute a fresh action on the same claim and relitigate the issue.
The learned Administrator-General in his reply ultimately and rightly conceded that the proper order, in view of total absence of evidence in support of the claim, was one of dismissal. The 3rd ground of appeal succeeds.
The only other ground worth our consideration is ground 5.
The point raised by counsel in this ground is the impropriety of joining a claim for possession of property wrongfully taken possession of with a claim for an order of injunction.
We are aware that this court has made definite pronouncements on, and pointed out the error in, the joinder of a claim for damages for trespass with one for an order of possession. We refer to the case of Aromire v. Awoyemi S.C. 38/1969 delivered on 11/2/72 where the Supreme Court observed:
“It is wrong to join a claim for trespass with a claim for possession for whilst a claim for trespass contemplates that the plaintiff is in possession, that for recovery of possession suggests that he is out of possession.”
See also Kelani Banko & Anor. v. Lamidi Aiyidodi & Anor. S.C. 55/1970; (1973) 4 S.C. 110 and at 111.
The court further explained in the case of Jimoh Adebekun v. Sabitiyu Odujobi S.C. 42/1970 (1972) 6 S.C. 208 at 216 that a trespasser does not by the act of trespass secure possession and if the plaintiff was always in possession then the defendant can only be liable for damages for trespass and injunction.
In the matter on appeal before us, the respondent has not claimed damages for trespass. The case established by the respondent is one of intermeddling with the estate of the deceased which he administers. We, therefore, find that in order to ensure the preservation of the property from further intermeddling, the learned trial Judge, in the particular circumstances of the present case where it has been established that the plaintiff/respondent is entitled to the possession of the property in dispute, was perfectly justified in entertaining a claim for possession of the property of the deceased with a claim for (an order of) injunction to restrain the appellant from “further entry into the said property.”
We may here refer to the relevant portion of the learned trial Judge’s findings and judgment which read:
“I am satisfied that Mba Ndukwe was the one who bought the property for himself and developed and made use of it until he died in 1962. It was after his death that Okeke Ndukwe started to intermeddle with his properties both real and personal…
I am satisfied therefore that the plaintiff has proved that the property belonged to the deceased Mba Ndukwe. …The defendant refused to countenance the letter sent to him by the Resident (Exhibit C) to surrender the premises pursuant to Section 61 of the Administrator-General Law. He had earlier refused to pay over to Mr. Ekpunobi (6th witness for the plaintiff) the agent appointed by the Administrator-General the rents he had been collecting from the said property.”
The court has statutory jurisdiction to prevent any threatened trespass by injunction for Section 25(3) of the High Court Law Cap. 61 L/EN 1963 provides:
“If, whether before, or at, or after the hearing of any cause or matter an application is made for an injunction to prevent any threatened or apprehended waste or trespass, the injunction may be granted, if the court thinks fit, whether the person against whom the injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title and whether the estates claimed by both or by either of the parties are legal or equitable.”
We wish to emphasize that by the finding of the learned trial Judge that the appellant “knows that the property did not belong to Okeke Ndukwe (his assignor) but rather assisted him in his fraudulent bid to become owner” the appellant comes under the categories of intermeddlers who are liable to be restrained by orders of injunction.
We are therefore unable to accept ground 5 as being well founded in the circumstances of this case.
There might be cases where there will be no basis for the joinder of a claim for an order of injunction with a claim for recovery of possession. The case that readily comes to mind is that of a landlord seeking an order of possession from a tenant who holds over or from a statutory tenant. His initial occupation has contractual basis and his continued occupation has statutory sanction and protection.
Ground 5 fails.
Counsel did not and was unable to adduce arguments in support of grounds 1 and 4 which were mainly on the facts of the case.
The appeal against the order for possession and order of injunction fails but in respect of the order of non-suit entered in respect of the claim for mesne profits, the appeal succeeds.
The order of non-suit is hereby set aside and in its stead we order that the claim for mesne profit be dismissed and it is hereby dismissed. And this shall be the judgment of the High Court.
The judgment in respect of the claim for possession and injunction with the order as to costs is hereby affirmed.
The appellant shall pay the costs in this court assessed at N165.00.
Other Citation: (1978) LCN/2130(SC)
