Overseas Construction Company Nigeria Ltd. V. Creek Enterprises Nigeria Ltd. & Anor (1985)

LawGlobal-Hub Lead Judgment Report

C. A. OPUTA, J.S.C.

The Plaintiff, now Appellant, originally sued one Defendant – Creek Enterprises (Nig.) Ltd. claiming special and general damages for trespass and an injunction. The writ of Summons dated 15/1/76 was filed on 16/1/76.

On an application, the Plaintiff was on the 9th February 1976 granted leave to join a further Defendant, namely Nelphinco and Company Ltd. Pleadings were then ordered and a Statement of Claim and a Statement of Defence were accordingly filed on the 23/4/76 and 27/5/76 respectively. The case was however not tried on these original writ of Summons and Statements of Claim and Defence.

An Amended writ of Summons was filed on 15/4/77. In that writ, the Plaintiff sued Creek Enterprises (Nig.) Limited as the 1st Defendant and the Abandoned Property Authority as the 2nd Defendant and claimed as follows:-

AMENDED WRIT OF SUMMONS

The Plaintiff’s claim against the 1st Defendant is for N50,000.00 damages for trespass to the land and premises situate at No.6 Aba Road, Port-Harcourt and known as Plot 3 in Block 241 Orije Layout, Port-Harcourt belonging to the plaintiff and wrongfully occupied by the 1st defendant as trespasser from January 1971 to March, 1975.

2. A declaration against the 2nd Defendant that the property at No. 6 Aba Road, Port-Harcourt, otherwise known as Plot 3 in Block 241 Orije Layout, Port-Harcourt, the subject-matter of this action was never abandoned by the Plaintiff and therefore not an abandoned property under the Abandoned Property (Custody and Management) Edict 1969. Amended the 4th day of April 1977 pursuant to the order of Court made on the 28th day of March, 1977.

(Signed)

C.J. Okoli, Esq.,

Plaintiffs Solicitor

After due trial on relevant evidence, the court of first instance found at pp.94/95 of the Record of proceedings:-

“That the property Plot 3, Block 241 Orije Layout, Port-Harcourt was not an abandoned property under the Abandoned Property (Custody and Management) Edict 1969. This head of claim succeeds.

Dealing with the issue of trespass against the 1st Defendant, the trial court relied on a proposed sublease of the premises by the Plaintiff to Messrs. Wiedemann & Walters tendered as Ex. N as evidence of the fact that the Plaintiff had already let the property concerned to Wiedemann & Walters by 4th January, 1971, when the 1st Defendant was alleged to have committed the trespass and found at p.91, lines 26 to 32 of the Records of proceedings:

It is my finding therefore….that as from 1st January 1971 the property concerned was in the possession of Wiedemann & Walters as tenants and that as such the right of action for any trespass on it on 4th January, 1971 was not in the Plaintiff but in Wiedemann & Walters.

Concluding his judgment on the issue of trespass, the learned trial judge observed:-