J. C. Nzelu V. African Continental Bank Ltd. & Ors (1974)

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S. SOWEMIMO, J.S.C. 

In this appeal,another unsavoury aspect of the Nigerian civil war is revealed in which resort is made to the court seeking for a relief against one of its unfortunate consequences. The court may appear helpless when in the exercise of its jurisdiction it has to uphold some legal consequence arising out of some transaction which may be morally questionable.

The appeal herein is against the judgment of the High Court of the Benue-Plateau State sitting at Jos, delivered by Bate, S.P.J. (Senior Puisne Judge) in suit No. JD/1/1972, dismissing the Plaintiff’s claim in that suit. The relevant writ of summons reads:

“The plaintiff’s Claim is

1. Against all the defendants jointly and severally for

(a) The purported sale of the Plaintiff’s house or immovable property known as an called No.1 Yola Avenue, Jos, valued at 2,500 (two thousand five hundred pounds) to be declared null and void owing to serious irregularities preceding the purposed sale. The said house or immovable property is situated at Jos within the jurisdiction of this Honourable Court and was unlawfully attached and purportedly sold on or about the 15th day of May 1968 by the 2nd defendant to the 3rd defendant under writs of attachment alleged to have been taken out by the 1st defendant, while the plaintiff was in East Central State of Nigeria during the crisis in the country.

(b) The purposed sale of the house or immovable property to be set aside on grounds of the said serious irregularities committed by the defendants before they were issued.

(c) The said writs of attachment to be set aside because of the serious irregularities committed by the defendants before they were issued.

2. Against the 2nd and 3rd defendants jointly and severally for 200 (two hundred pounds) damages for trespass in that on or about the 15th day of May 1968 the 2nd defendant in purported execution of the alleged writs of attachment unlawfully broke and entered the Plaintiff’s aforesaid house or immovable property and unlawfully sold the same to the 3rd defendant who thereupon unlawfully broke and entered the same and commenced to exercise acts of ownership in and over the same.
3. Against the 3rd defendant for (a) An account of all monies collected and rents by him from the time of the purported sale in May 1968 and that such monies be paid over to the Plaintiff injunction restraining the 3rd defendant by himself his servants, agents, workmen or otherwise from continuing or repeating the acts of trespass aforesaid.”

The facts, as found by the learned trial judge, were that sometime in 1950, the appellant obtained the lease of a parcel of land from the then Jos Local Authority. A right of occupancy for the lease was obtained from the Local Authority in 1950 and was renewed from time to time until it expires in November 1966. The plaintiff did not renew it until he left Jos for the then Eastern Nigeria. Before he left, however, he was indebted to the African Continental Bank Ltd., Jos, who had obtained judgment for 1,211:17s:1Od. and 52:1Os:Od. costs against the appellant in suit JD/45/62 on 20th July, 1962. Towards the settlement of this debt, the 1st respondent, the African Continental Bank Ltd., obtained by garnishee proceedings the sum of 90:5s:4d. being an amount standing in favour of the appellant in the Bank of West Africa Ltd. as on 10th October, 1962. On the application of the 1st respondent, the immovable property of the appellant, 1 Yole Avenue (Road), was ordered to be attached by the Jos High Court. It was also ordered that the property by sold by public auction by the 2nd respondent who was expressly named. The orders dated 29th July, 1966, were made by Reed S.P.J. (as he then was).

The writ of execution was issued but, as the sale was not made within the year, by an order made by Bate, J. (as he then was) dated 26th April, 1968, a new writ of execution was obtained by the 1st respondent. The property was eventually sold at a public auction by the 2nd respondent to the 3rd respondent. A certificate of purchase was issued from the High Court Registry by the 2nd plaintiff’s witness in favour of the 3rd respondent. The certificate of purchase is Ex. 2. A copy of the proceedings leading to the attachment and sale of the immovable property of the appellant was tendered as Ex. 1.

The 1st and 2nd respondents did not file any defence in the lower court. The 3rd respondent filed a statement of defence but, at the close of case for the appellant, he elected not to call evidence.

The learned trial judge in his judgment stated thus:

“The plaintiff’s own evidence is that the right of occupancy over the premises at 1 Yola Avenue or Road was granted to him in 1950, and that he renewed it in November, 1962 for 4 years but did not renew it in 1966.

In the latter year he left Jos and did not return until the war was over. I see no reason to doubt the plaintiff’s account of his connection with these premises. It is supported by a letter from the Jos Local Authority Exhibit 4, I conclude that after the right of occupancy expired in November 1966, the plaintiff ceased to have any right, title or interest in the premises and that he had no such right, title or interest when the house was sold in execution in or after 1968.

Since the plaintiff had not title to the house in dispute, his suit must for this reason alone fail. He was not in possession or entitled to possession at or after the date of the sale and is therefore not entitled to damages for trespass. Since the plaintiff has not proved any title, the 3rd defendant is not liable to account for rents. Whether or not the sale was irregular, the plaintiff cannot be heard to complain, with regard to the sale of property to which he had not title.