C D. Olale V. G. O. Ekwelendu (1989)

LawGlobal-Hub Lead Judgment Report

CRAIG, J.S.C. 

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.
16. 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.
17. 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.

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SC.54/1988