I. P. D. Abaye V. Ikem Uche Ofili & Anor. (1986)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C. 

In this appeal the 1st respondent was the plaintiff in an action which he brought against the appellant in the Rivers State High Court, sitting at Port Harcourt. His claim as per the writ of summons reads as follows:

“(a) Declaration that the Plaintiff is the owner and entitled to the possession/occupation of a piece or parcel of land described as Plot 295 Oromineke Layout otherwise known as No. 5, Emekuku Street, Diobu – Port Harcourt by virtue of Deed of Lease dated 3rd January, 1979 and registered as No. 38 at 83 Volume 77 of the Lands Registry in the Office at Port Harcourt.

(b) Order for possession of the said property for the use and benefit of the Plaintiff.

(c) Injunction to restrain the Defendant, his family, agent and otherwise from further occupation of the said premises.

(d) N50,000.00 (Fifty Thousand Naira) being special and general damages for loss of use since 1st August, 1978.

(e) Any other reliefs the Court may deem fit to make in the circumstance.”

Pleadings were filed and exchanged. When the case came up for hearing before the learned trial judge it was agreed between learned counsel for the parties, that is the appellant and the 1st respondent that the issues joined in the pleadings could be tried without oral evidence being adduced. In consequence, therefore, 2 documents were admitted in evidence by consent of both the learned counsel for the said parties. These documents are a deed of lease and a letter written to the defendant from the Rivers State Ministry of Lands and Survey. The documents were admitted as exhibits A and B respectively.

The issues joined between the parties are contained in paragraphs 3, 4. 5, and 8 of the statement of claim and paragraphs 3, 4, 10, 11 and 12 of the statement of defence. Since oral evidence was dispensed with at the trial, I think, it is necessary to quote the paragraphs in question. Those from the statement of claim read thus:

“3. The Plaintiff is the Lessee and therefore owner of Plot 295 Oromineke Layout otherwise known as No.5. Emckuku Street, Port Harcourt by virtue of Deed of Lease dated 3rd January, 1979 and registered as No. 83-83-77 of the Lands Registry in the Office at Port Harcourt. The Deed of Lease aforesaid will be tendered in evidence and relied upon at the trial of the suit.

4. The defendant having been discovered to occupy the said plot being an abandoned property and affected by the Abandoned Property (Custody and Management) Edict 1969 of Rivers State Government was written to by the ministry of Lands and Survey. Lands Division, Port Harcourt informing him that the said property has been purchased by the Plaintiff and to pay rents to the Plaintiff as the Landlord thereof. The copy of the said letter will be founded upon at the hearing of this suit.
5. Inspite of the said letter from the said Ministry the defendant declined to acknowledge the Plaintiff as the Leasee and owner of the property aforesaid and has attempted to challenge the Plaintiffs ownership of the property.”
6. The Plaintiff will state in evidence at the trial of this suit that apart from the said letter from the Ministry of Lands and Survey. Port Harcourt, the Plaintiff addressed many letters to the defendant asking him to vacate the said premises for the use of the Plaintiff, in addition to personal appeal to the defendant. The defendants have always been as adamant to these requests and protests and have threatened violence to the body of the Plaintiff if plaintiff dared to move into the said property.”

And those from the statement of defence as follows:

“3. The Defendant denies paragraphs 3, 7 and 10 of the Statement of Claim and avers that the lease of plot 295 Oromineke Layout otherwise known as No.5 Emekuku Street, Port Harcourt had been cancelled by the Rivers State Government Notice No. 452 published in Volume 4 of the Rivers State of Nigeria Extra-ordinary Gazette, No. 56 of 1st of November, 1972 and it has not been de-acquired.

4. In answer to paragraph 4 of the Statement of Claim the Defendant says that the property was not an abandoned property when he moved into it in October, 1974 as the Principal of the Government Teacher College Rumuokuta and it was allocated to him as a Government Staff quarters.
5. The Defendant will contend at the trial that the Deed of Lease referred to in paragraph 3 of the Statement of Claim is null and void, not having granted or conveyed any interest in land to the Plaintiff as it purported to have done.
6. The Defendant will further contend that the Plaintiff’s claim is misconceived in that assuming as it was being suggested in paragraph 4 of the Statement of Claim that the Defendant is the Plaintiff’s tenant (which is denied) the Plaintiff is still not entitled to possession or occupation of the property.
7. The Defendant will aver at the trial that the plaintiff’s claim in any case does not disclose any case for the award of possession, injunction and damages against Defendant, the plaintiff not having shown that he committed any tort or breach of contract known to law.”

In his judgment, the learned trial Judge found that although the property in dispute could have been at one time an abandoned property as defined under the Abandoned Property (Custody and Management) Edict 1969, it ceased to be so as from 1st November, 1972, by reason of the fact that it was shown in a Gazette Notice as having been acquired by the Rivers State Government for public purpose. The Gazette in question is the Rivers State Extraordinary Gazette No. 56 of 1st November, 1972. The learned trial Judge therefore came to the conclusion that since the property in dispute was not an abandoned property at the time it was sold to the Plaintiff by the Abandoned Properties Implementation Committee, the plaintiff did not acquire any title. He furthermore held that the content of exhibit B which indicates that the plaintiff purchased the property in question from the Abandoned Properties Implementation Committee is hearsay and cannot therefore amount to a proof of sale by the Committee. On the deed of lease, exhibit A, the learned trial Judge was of the view that the effect of the acquisition by the Rivers State Government is that the property must be put into use by the Government for a public purpose. The State Lands (Cancellation of Leases) Edict, 1972 which empowered the then Military Governor of Rivers State to acquire state land compulsorily did not define the words “public purpose”, but provided that they had the meaning assigned to them under Section 2 of the Public Lands Acquisition Law, Cap. 105 of the Laws of Eastern Nigeria, 1963. After examining section 2 of the Law, the learned trial Judge observed as follows:

“The position then in Law is that where a lease of land required for public purpose has been validly cancelled under the State Lands (Cancellation of Leases) Edict, 1972 by publication of such cancellation in the Gazettes by the Military Governor (now Governor) the property whose lease has been so cancelled reverts to the State who (sic) in turn must use it for a public purpose that falls within one of the above categories which appear in Section 2 of the Public Lands Acquisition Law.”

Relying on the decisions in Chief Commissioner Eastern Provinces v. Ononye, 17 N.L.R. 142 and Ereku & Ors. v. Military Governor, Mid-Western State of Nigeria, (1974) 10 S.C. 163, the learned trial Judge came to the following conclusion:

“The law then, I believe, is that unless the purpose of acquisition falls within one or the other of the provisions of section 2 of the Public Lands Acquisition Law defining “public purposes”, a land purported to be acquired by Government under this law, and for that matter, the State Lands (Cancellation of Leases) Edict, 1972 does not vest in the government and since it has not vested in the Government the powers of disposition afforded by the State Lands Laws (sic) cannot be validly exercised over such a parcel of land purported to have been acquired.

Applying this test to the land in question and the cancellation of its lease I fail to see how, without more, a purpose of sale just to an individual can fall within any of the public purpose enumerated,”

Finally, before dismissing the plaintiffs claim, the learned trial Judge rejected the argument that the provisions of Section I of the Abandoned Properties Act, 1979 would save the transfer of the land in dispute to the plaintiff. The rejection was based on the following grounds.

(a) That the words “abandoned property” were not defined by the Act.

(b) That the Act did not provide where and when the” Abandoned Properties Implementation Committee” mentioned therein “was legally constituted”.

(c) And that Exhibit A was not executed by the Abandoned Property Implementation Committee referred to in the Act.

The plaintiff appealed from the decision of the learned trial judge to the Court of Appeal. The decision of the trial court was reversed by the Court of Appeal which found that the facts of the present case are different from those relied upon by the learned trial Judge to dismiss the plaintiffs claim. In the words of the Court of Appeal (per Phil-Ebosie, J.C.A.) –

“In both cases it was held that the acquisition for granting a lease to commercial company was not for public purpose. The Position in the case before us seems different. The Rivers State Government has already acquired the plot. The certificate of title had been given to the Government. The purpose of the acquisition judging from the fact that the area is in a layout and there are several residential buildings on it, is for the Government to carve the said land into plots and lease them to individuals for the creation of their own personal houses. This purpose in my opinion falls within the definition of public purpose as defined in section 2 of the Public Lands Acquisition Law. That purpose is still subsisting and if the Rivers State Government after cancelling the original lease of one of the plot by virtue of section 3(1) of the State Lands (Cancellation of Leases) Edict, 1972, and subsequently leased the same plot to another individual, the second lease in my view will be within the original public purpose for which the Layout was originally acquired.”

The Court of Appeal considered further the view of the trial court that the defendant had a right to challenge the lease granted to the plaintiff since the plaintiff had put his title in issue. It then observed as follows (per Phil-Ebosie. J.C.A.)-

“It is pertinent however at this stage to ask what interest had the respondent (i.e. defendant) in plot leased to the appellant to entitle him to challenge the lease by the Rivers State Government. As pleaded by him the premise was only allocated to him as Staff Quarters. The allocation if there was one, has not conferred any other right in him other than the right to occupy the premises at Government pleasure. This does not confer any property right on the appellant to challenge the Government’s right to lease its property to anyone it wishes with respect. I disagree with the lower court’s view that the respondent had a right to challenge the lease since the appellant (i.e. plaintiff) had put his title in issue as this would amount to challenging the Government’s right to dispose of its own property.”

In the event, the Court of Appeal allowed the plaintiffs appeal. It is from that decision that the defendant has appealed to this Court. At the instance of this Court the Attorney-General of the Rivers State was joined as 2nd Respondent to the appeal.

The appellant originally filed three grounds of appeal with the notice of appeal. He had, however, abandoned two out of those, namely grounds 1 and 3. The remaining ground complains that the Court of Appeal took into consideration extraneous matters with regard to the acquisition of the property in dispute and by so doing, it came to the wrong conclusion.

With the leave of the Court, the appellant filed three additional grounds of appeal. These read:

“1. The learned Justices of Appeal erred in law in not affirming the Judgment of the High Court and dismissing the claim of the Plaintiff/Respondent for a different reason, having regards (sic) to the position of the law at all times relevant to the proceedings both at the High Court and the Federal Court of Appeal.

Particulars

(a) The State Lands (Cancellation of Leases) Edict 1972 under which the lease of Plot 295 Oromineke Layout otherwise known as No.5 Emekuku Street, Port Harcourt was cancelled by virtue of the publication contained in the Rivers State Government Notice No. 452 of Volume IV of the Rivers State of Nigeria Extra-ordinary Gazzette No. 56 of 1st November, 1972 is void for inconsistency with the provision of the 1963 Federal Constitution by virtue of Section 31 thereof.

(b) The purported cancellation of the lease or acquisition remains void and the property in question remains vested on the original lessee L.E. Egu or in the alternative on the Abandoned Property Authority established under the Rivers State Abandoned Property (Custody and Management) Edict, 1969.

(c) The lessor in Exhibit A had not got the property in question to pass to the Plaintiff/Respondents as it had purported to do. Nemo dat non quod habet. (sic)

(d) What the Federal Court of Appeal has to decide is whether the decision of the trial Judge was right; not whether his reasons were.

2. The learned Justices of Appeal erred in law in holding that with respect to the claim for possession the issue between the parties was purely one of trespass and not of rents.

Particulars

(a) There is no claim for trespass before the Court below.

(b) From the pleadings it was clear the Defendant/Appellant was in occupation of property.

(c) EXHIBIT ‘E’ relied on as notice to quit is not a proper notice emanating from the Plaintiff/Respondent as Landlord.

3. The learned Justices of Appeal erred in law in ordering the Appellant to vacate the premises in question when from the pleadings and submissions at the High Court, that Court had no jurisdiction to order recovery of possession.

Particulars

(a) The Defendant/Appellant having been in occupation of the premises before the issue of EXHIBIT ‘A’ becomes Plaintiff/Respondent’s tenant if EXHIBIT ‘A’ was valid.

(b) Appellant is entitled to 30 days notice and 7 days notice under Sections 17 and 18 of the Rivers State Rent Control and Recovery of Residential Premises Edict No. 1 of 1979. No such notice was issued to the Appellant.

(c) By Section 15 of the 1979 Edict every Court in the Rivers State was enjoined to conform to the provisions of the Edict.”

Now I propose to deal first with additional ground 1. This ground of appeal has given a new complexion to the case. The issue of the inconsistency or invalidity of the State Lands (Cancellation of Leases) Edict, 1972 vis-a-vis the 1963 Constitution of the Federal Republic of Nigeria was not raised in the Court of Appeal or the High Court; so that neither the decision of the High Court nor the Court of Appeal was based on the point. Similarly the question of the lease remaining vested in Mr. L. E. Egu or in the alternative the Abandoned Property Authority by reason of the invalidity of the State Lands (Cancellation of Leases) Edict, 1972 was not raised before nor considered by the lower courts. Chief Ofodile, learned counselor the 1st respondent and Mr. Addai-Mensah for the 2nd respondent have submitted that the appellant should not be allowed to argue the ground of appeal because the particulars thereof mark a departure from his pleadings. They cited in support of their arguments Ejiofodomi v. Okonkwo (1982) 11 S.C. 74 at pp. 113-116 and Enang v. Adu, (1981) 11 S.C. 36. For his part, Mr. Olukole learned counsel for the appellant contended that the ground of appeal has raised substantial points of law which are within the scope of the general issue in the case. He cited Ejiofodomi’s case (supra) and Akpene v. Barclays Bank & Anor., (1977) 1 S.C. 47 at pp. 58-9 to buttress his contention and added that no new evidence need be adduced to support the points raised by the ground of appeal.

It is now settled that this Court, as a Court of last resort, will allow a fresh point of law to the raised before it, even if such point was not taken in the courts below – see Stool of Abinabina v. Eyimadu, 12 W.A.C.A. 171 at p.173; Djukpan v. Orovuyovbe & Anor., (1967) All N.L.R. 134 at pp. 136-139;Fadiora v. Gbadebo & Ors. (1978) 1 L.R.N. 97 at pp.108-9, and Ejiofodomi’s case (Supra) at pp. 113-6.

However such leave is subject to the conditions that – (1) We have before us all the evidence which is needed to completely support the new contention and (2) no satisfactory explanation could have been given by the respondents in the lower courts to counter the contention; see Fadiora’s case (supra) on pp.108-9. In the present case it is clear from Gazette Notice No. 452 which was published in the Rivers State Extraordinary Gazette No. 56 of 1972 that Mr. L.E. Egu was previously the lessee of the property in dispute but his lease was compulsorily acquired with effect from 1st November, 1972, by virtue of the State Lands (Cancellation of Leases) Edict, 1972.

Mr. Olukole is relying on the decision of this Court in Peenok Investments Limited v. Hotel Presidential Limited, (1982) 12 S.C. 1 to show that the 1972 Edict is null and void and to contend that the lease granted to the 1st respondent subsequent to the acquisition of the land in dispute by Rivers State Government is void. In other words, the lease granted to Mr. L. E. Egu remains extant. On the face of these facts, we thought the appellant could argue the additional ground of appeal and hence our reason for allowing him to do so.

Now it is true that this Court decided in Peenok’s case (supra) at pp.28-31, that the State Lands (Cancellation of Leases) Edict, No. 15 of 1972 was null and void, because it was inconsistent with the provisions of section 31 subsection (2) (a) and (b) of the 1963 Constitution of the Federation, Act No. 20 of 1963. The question then is: can the appellant rely on that decision to defeat the claim of the 1st respondent At this stage it needs to be pointed out that at the time this case was instituted in the High Court and up to the 2nd April, 1980 when the judgment of the High Court was given, the State Lands (Cancellation of Leases) Edict, 1972 had not been declared null and void. So that the point now being raised by the appellant was not available to him in the High Court. Also on the date the 1st respondent was granted lease of the property in dispute, which is 1st January, 1978, the Edict in question was operative. It was whilst the 1st respondent’s appeal was pending in the Court of Appeal that our decision in Peenok’s case was delivered. Through out the argument of the appeal before that court no reference was made to the decision and when the Court of Appeal came to give its judgment it did not advert to it. In the circumstances, has the decision any bearing on the present case

It is settled that there are five ways in which the ownership of land can be proved – see Idundun v. Okumagba, (1976) 9-10 S.C. 227 at pp.246-250; Piaro v. Tenalo & Anor. (1976) 1 F.N.R. 229 at p.234 Mogaji v. Cadbury Nig. Ltd., (1985) 2 N.W. L. R. 393 at p.431. One of such ways is by the production of authenticated documents. The 1st respondent produced exhibit A which showed that the land in dispute had been leased to him for 50 years with effect from 1st January, 1978. The lease was granted by the Military Governor of Rivers State on behalf of the Rivers State Government. Surely this is a sufficient proof of ownership for the purpose of the declaration sought by the 1st Respondent for the possession of the property in dispute. The appellant in his defence did not claim ownership of the-property, rather, he claimed that the property was allocated to him as Government Staff Quarters, and drew the red herring that the lease granted to the 1st respondent by the Government of Rivers State was not valid as it was not granted for a “public purpose” as provided under section 2 of the Public Acquisition Law Cap. 105, Laws of Eastern Nigeria, 1963. As if that in itself is not enough, the appellant is now even challenging the validity of the ownership of the land by the Government of Rivers State that allocated the property in dispute to him to occupy. He is doing so, by fighting the cause of Mr. L. E.Egu even though he has no mandate from Mr. Egu.

I think it will be a dangerous precedent, capable of resulting in chaos, to hold that if a case is contested on the basis of the applicability of a particular statute, when the statute is operative, then, if at a later date the Statute became repealed, the right acquired under it also becomes extinguished. It is to avoid such absurdity and preserve the certainty and predictability of law that section 6 subsection (2) of the Interpretation Act, 1964 provides that when an enactment expires, lapses or ceases to have effect, the provisions of subsection (1) thereof should apply, as if the enactment remains operative.

The provisions in paragraphs (b)(c) and (e) of the subsection read thus:

“6. (1) The repeal of an enactment shall not-

….

(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment;

(c) affect any right, privilege, obligation, or liability accrued or incurred under the enactment;

(e) affect any investigation, legal proceeding,. or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture, or punishment may be imposed, as if the enactment had not been repealed. ”

It follows, therefore, that the appellant cannot rely on the decision in Peenok’s case to contend that the grant of lease made to the 1st respondent by the Government of Rivers State is null and void since the States Lands (Cancellation of Leases) Edict, 1972 was declared void in December, 1982. To my mind any action rightly taken under the Edict before the 3rd December, 1982, when the decision of this Court in Peenok’s case was given, remains valid at all time by virtue of the provisions of section 6 of the Interpretation Act, 1964; unless of course, it is specifically declared invalid by a competent court of law in any proceedings where the validity of the Edict is directly in issue as in the Peenok’s case. In Kay v. Goodwin, (1830) 6 Bing. 576 at p. 582, Tindal C.J. said:

“The effect of repealing a statute is to obliterate it completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law.”

See also the decision in Hamilton Gell v. White, (1922) 2 K.B. 422 and Free Lanka Insurance Co. Ltd. v. Ranasinghe, (1964) A.C. 54 at pp. 550-553. Additional grounds 2 and 3 may be considered together. Mr. Olukole has argued that the appellant was a statutory tenant of the 1st respondent and if the 1st respondent wanted to regain possession of the property in dispute he would have to bring his claim before a Rent Tribunal which was set up under the Rivers State Rent (Control and Recovery of Residential Premises) Edict, 1979, and not in the High Court.

His contention is based on the premise that section 36 subsection (4)(1) of the Rent (Control and Recovery of Residential Premises) Edict 1979 vested the Tribunal with jurisdiction to the exclusion of all other courts, including the Court of Appeal, to determine issues of recovery of residential premises between landlord and tenant. I am unable to agree with the submission. The issue joined on the pleadings is whether the property in dispute was allocated to the appellant by the Government of Rivers State for his occupation. Paragraph 7 of the Statement of Claim averred –

“The defendant is resident at Ndele where he is occupying the principal’s quarters provided for him by the Federal Government of Nigeria and has unlawfully obstructed the plaintiff from the occupation of the said property to which the plaintiff is entitled by virtue of paragraph 3 above.”

The appellant traversed as follows in paragraphs 3 and 9 of the Statement of defence –

“3. The defendant denies paragraphs 3, 7 and 10 of the Statement of Claim.”

“9. In further answer to paragraph 7 of the statement of claim, the defendant says that he is not resident at Ndele but lives with his (sic) members of his family at No.5 Emekuku Street, Port Harcourt from where his wife who is a teacher goes to her school at Holy Rosary Girls’ Secondary School and from where his children as day students attend Secondary and Teacher Training College in Port Harcourt. ”

As no evidence was led by either party in proof of the averments in the pleadings, the issues of fact joined were not resolved by the trial court. The appellant did not therefore prove that he was in occupation of the property in dispute as a tenant of the Government of Rivers State. Secondly, in paragraph

11 of his statement of defence, the appellant categorically denied that he was a tenant of the 1st respondent. The paragraph reads –

“11. The Defendant will further contend that the plaintiffs claim is misconceived in that assuming as it was suggested in paragraph 4 of the statement of claim that the Defendant is the Plaintiffs tenant (which is denied), the plaintiff is still not entitled to possession or occupation of the property.”

In view of the denial, the appellant cannot now argue in utter disregard of his pleadings. It is trite law that parties are bound by their pleadings and they will not be allowed to deviate from them – George & Ors. v. Dominion Flour Mills Ltd., (1963) 1 All N.L.R. 71 at p. 77 and Enang & Ors. v. Adu, (supra) at p.36. Since the appellant denied that he was a tenant of the 1st respondent, and there was no finding by the lower courts confirming that he was his tenant, he cannot now be heard to say that he is such a tenant in order to be able to argue that the Court of Appeal, in making the order for him to vacate the property in dispute, lacked jurisdiction. The order which the Court made was consequential to its finding that the 1st respondent proved his case against the appellant. For this is what the Court said (per Phil-Ebosie, J.C.A.) –

“In respect of the first three reliefs, judgment will be and is hereby entered for the appellant in the terms of his writ. It is hereby ordered that the respondent (now appellant) do vacate the premises at plot 295 in Oromineke Layout otherwise known as No.5 Emekuku Street, Diobu, Port Harcourt forthwith or with immediate effect.”

There is no doubt that the Court of Appeal, being a superior court of record under the 1979 Constitution of the Federation of the Republic of Nigeria, has sufficient powers to make the consequential order. These powers are derived from different sources. The provision of section 6 subsections (3) and (6) (a) of the Constitution read:

“(3) The courts to which this section relates established by this Constitution for the Federation and for the States specified in subsection (5)(a) to (f) of this section shall be the only superior courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or the House of Assembly of a State, each court shall have all the powers of a superior court of record.”

“(6) The judicial powers vested in accordance with the foregoing provisions of this section –

(a) shall extend notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;”

Section 16 of the Federal Court of Appeal, Act, 1976 provides in part-

“16. The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal “

And Order 3 rule 23 of the Federal Court of Appeal Rules, 1981 states:

“23. The Court shall have power to give any judgment or make any order that ought to have been made, and to make such further or other order as the case may require “

Learned counsel for the appellant complained that the Court of Appeal was wrong in holding that the dispute between the Appellant and the 1st respondent was based on trespass and not a claim of rent. With respect, I do not, after carefully reading the judgment of the Court of Appeal, see where the Court of appeal made such a finding. The only occasion when the Court made reference to trespass was when it was considering the appellant’s submission in the High Court that the jurisdiction to hear the claims of the 1st respondent was vested in the Rent Tribunal. This is the remark made by the Court of Appeal:

“Before I allow this appeal it may be necessary to touch briefly the second arm of the defend, (sic), which was that the provisions of the Rent Restrictions and Recovery of Premises of the Rivers State (sic) were applicable in this case and so the appellant’s action was brought in the wrong court. With respect I also do not agree. As the learned counsel for the appellant rightly submitted in his address the issue between the parties here was purely one of trespass and not of rents. Besides the plot was no longer an abandoned property, that law was inapplicable. In conclusion I hold that the defence is of no merit.”

That is the con in which the Court of Appeal made the remark. It did not specifically find, nor do I understand it to say that the claim of the 1st respondent was founded on trespass. This view is strengthened by the fact that in allowing the appeal the Court granted the first three reliefs sought by the 1st respondent in the High Court. These are – (1) a declaration that the plaintiff was the owner of the property in dispute and that he was entitled to possession and or occupation of it; (2) an order for possession of the property by the plaintiff; and (3) injunction to restrain the defendant, his family or agent from further occupation of the property. The 2nd additional ground of appeal therefore fails.

It remains now to deal with the only original ground of appeal argued by Mr. Olukole. The ground complains that the learned Justices of the Court of Appeal took extraneous matters into consideration with regard to the acquisition of the property in dispute and therefore came to the conclusion. This may well be so, but the question is: has the appellant suffered any mis-carriage of justice as a result of the misdirection In his brief of argument learned counsel quoted parts of the lead judgment of the Court of Appeal to which the complaint in the ground of appeal relates. The first extract reads:

“It was not shown in the pleadings who allocated the quarters to him (defendant) nor was any document containing the allocation by any authority of the Rivers State pleaded or tendered. It is (sic) therefore not be unlikely that the Respondent (defendant) could have commandeered the premises for his own use.”

and the second states:

“The position in the case before us seems different. The Rivers State Government had already acquired the plot. The certificate of Title had been given to the Government. The purpose of the acquisition judging from the fact that the area is a layout and there are several residential buildings on it, is for the Government to carve the said land into plots and lease them to individuals for the creation of their own personal houses. ,.

The submission in respect of the first quotation is that the defendant pleaded the allocation of the premises to him and that no reply was filed by the plaintiff in rebuttal of the averment. It is true that the defendant averred the allocation, but as I have earlier indicated in this judgment, the fact remains and it must be remembered that the plaintiff joined issue with the defendant on the averment in question, and it was not proved, since no evidence was adduced by the defendant at the trial. Although the observation made by the Court of Appeal may not be correct. it was justified in drawing the inference from the conflicting pleadings of the parties and no miscarriage

of justice is shown to have resulted from the inference. ”

As regards the second quotation, learned counsel complained that it was not supported by the pleadings and Exhibits A and B. It is clear that the Rivers State Government acquired the property in dispute. It was the appellant that produced the Gazette Notice that established that fact.

But there was no evidence whatsoever or any averment in support of the rest of the observation made by the Court of Appeal. The misdirection clearly relates to the nature of the action brought by the 1st respondent. The distinction as to whether it was an action in trespass or a claim for arrears of rent, is only relevant for the determination of the forum which had the jurisdiction to hear the case. As it has already been shown that it is the High Court and not the Rent Tribunal that had the jurisdiction, I do not think that the appellant had suffered any miscarriage of justice by reason of the misdirection.

On the whole, I am of the opinion that this appeal has failed and it must be dismissed. It is hereby dismissed with N300.00 costs to the 1st respondent. The decision of the Court of Appeal is therefore confirmed and the case is remitted to the High Court for the assessment by Okara, J. of the quantum of damages which the 1st respondent is entitled to.

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SC.49/1984