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