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.”