Benedict Otanma V. Kingdom Youdubagha (2006)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

In the High Court of Justice of the Rivers State of Nigeria, in the Port Harcourt Judicial Division, in suit No. PHC/342/88, Benedict Otanma, the appellant herein, took out the writ of summons commencing these proceedings claiming against kingdom Youdubagha, the defendant, the respondent herein, as follows:

“(i) A declaration that the plaintiff is, by virtue of the Land Use Act, 1978 deemed to be the holder of a statutory right of occupancy and is therefore the person entitled to apply for and be granted a statutory certificate of occupancy under the Act in respect of all that piece of developed land forming part of a tract of land formerly known as Oningbada but now known as No. 34, School Road, Mile 3, Diobu, Port Harcourt within the jurisdiction of the Honourable Court.

(ii) An injunction restraining the defendant whether by himself or through his servants, agents or privies from trespassing onto the land or interfering with the land either by occupying it or letting it out or in any way holding himself out as the landlord thereof.

(iii) N100,000.00 (One Hundred Thousand Naira) against the defendant being special and general damages for trespass to the said landed property. Particular and special damages.

(a) Mesne profits at the statutory rent of N10.00 (Ten Naira) per room per month of the 12 rooms in the house from May 1979 to August, 1988 … N14,460.00.

(b) Mesne profits at Nl0.00per room per month plus general damages thereafter until the defendant and his servants, agents or privies vacate the property …. N85,590.00.

Total …. N100,000.00”

Pleadings were ordered, filed, exchanged and amended. At the hearing, each of the parties called witnesses who testified in support of their respective pleadings and a number of documents were also tendered through those witnesses. The learned trial Judge also visited the locus-in-quo and after the address of counsel and in his judgment delivered on the 19/3/1996, the claims of the plaintiff were dismissed in their entirety. The plaintiff, according to the judgment, “failed to discharge the burden of proof placed on him”. One of the fundamental issues the learned trial Judge found against the appellant was the appellant’s failure to prove with certainty the identity of the land he was seeking the decree of declaration of title. The appellant felt unhappy with the turn of events, appealed to the Court of Appeal against the decision. In his brief for the appellant, the learned counsel identified, formulated and submitted “unnecessary proliferated” nine (9) issues for the determination of the appeal. The issues clearly and indisputably which were no more than variants or repetitive of each other, were:

“1. Whether the learned trial Judge was right (to have given) much weight to the measurement of the land as distinct from the house erected thereon being the subject matter of the plaintiff’s claim.

2. Whether the learned trial Judge was right to have used exhibit “A” for purposes other than the sole purpose for which it was tendered and received in evidence.
3. Whether the learned trial Judge was right to have relied on the purported traditional evidence by Mr. Lazarus Owhonda (DW2) the alleged vendor of the defendant’s father in dismissing plaintiff’s claims.
4. Whether the learned trial Judge was right in not giving any or much weight to the instrument of transfer (exhibit C) and other documents (exhibits B, D-D4, E9, Hand K) emanating from the Rivers State Government, which treated No. 34, School Road, Diobu, Port Harcourt the property in dispute as an “abandoned property” and confirmed the plaintiff as the owner of the said property.
5. Whether the learned trial Judge was right not to have declared exhibit J (defendant’s father’s purported Deed of Conveyance) null and void in view of the clear provisions of the Rivers State Abandoned Property (Custody and Management) Edict, 1969 as amended.
6. Whether exhibit J was not rendered invalid by the numerous inconsistencies in the date of its execution, date of survey plan, recital and other contradictions disclosed on the document.
7. Whether the learned trial Judge correctly evaluated the evidence tendered by the plaintiff in the case.
8. Whether the plaintiff proved his case and was entitled to all the reliefs claimed by him.
9. Whether the learned trial Judge was right in dismissing the plaintiff’s/appellant’s case in its entirety.”

The appellant’s appeal at the Court of Appeal was by a split of two to one unsuccessful. Ikongbeh and Akpiroroh, JJ.C.A dismissed the appeal while Nsofor, J.C.A. allowed the appellant’s appeal. This is a further appeal to this court by the plaintiff/appellant. In the briefs filed, exchanged and which at the hearing were adopted by the parties, the appellant identified and submitted the following two issues for the determination of the appeal by this court:

(1) Whether the lower court was right to have gratuitously raised the issue of identity of the disputed land when the same did not arise from the pleading. (Grounds 1 and 2)

(2) Whether the appellant established his claim of being entitled to the grant of statutory right of occupancy to the disputed plot as against the respondent.”

The issues formulated and submitted by the respondent though differently worded have more or less the same meaning and intendment. But before the discussion of the issues for determination in this appeal, it shall be convenient to firstly sketch out the facts.