Joseph Igbongidi V. Johnson Umelo (1993)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.S.C.

The respondent, Mr. Johnson Umelo, instituted this action in the Port Harcourt Judicial Division of the High Court of Rivers State, by a writ of summons, endorsed with the following claim:

‘The plaintiff’s claim against the defendant is as follows:

1. N8,942.00 (Eight thousand nine hundred and forty-two naira) being special and general damages for trespass in that between January, 1970 and August, 1975 the defendant entered the Plaintiff’s house at No. 1, Nsu Street, Diobu Port Harcourt and falsely represented himself as the landlord whereupon the defendant wrongfully collected rents from the tenants within the period aforesaid.
2. Perpetual injunction restraining the defendant and or his agents or servants from further acts of trespass to the plaintiff’s property situated at and known as No. 1, Nsu Street, Diobu Port Harcourt within the jurisdiction of this honourable Court.”

The case of the respondent, in brief, is that he purchased a piece of land from one Reuben Njoku, in 1963 and built a house therein, in 1964. He then put in tenants and was collecting rents until 1968 when, due to the outbreak of Nigerian Civil War. He abandoned the property

and fled from Port-Harcourt. After the Civil War, Mr. Umelo returned to Port Harcourt and applied for the release of the property to him. The property was eventually released to him in 1974. The instruments of transfer signed by the Rivers State Abandoned Property Authority and the Rivers State Government Gazette No.43, Volume 6, of 17/10/74 both as evidence of release of the house to the respondent, were admitted as Exhibits during the trial.

Mr. Umelo took possession of the property soon after it had been released to him. He then identified himself to the tenants that he was the owner of the property and their landlord. The tenants ignored him and refused to pay rents to him. In order to convince the tenants that he was the real owner of the property he got the Abandoned Property Authority to paste the release notice on the wall of the house.

This suit is based on the demand for payment of rents collected by the appellant from 1970 to 1975. Witnesses were called by both parties, including the vendors from whom each party claimed to have purchased the land originally. In a well considered judgment, the learned trial Judge entered judgment for the plaintiff/respondent, but with a reduced award for general and special damages.

On appeal against the judgment, the Court of Appeal found no merit in the appeal and dismissed it.

Dissatisfied with the decision of the Court of Appeal, the appellant came to this court on five grounds of appeal. The learned counsel for the appellant formulated the following four issues for the determination of the appeal:

“(a) Whether the Court of Appeal was right in declaring Exhibit “G” void suo motu by virtue of Section 15 of the Abandoned Property (Custody and Management) Edict 1969 when none of the parties raised that issue.

(b) Whether the Court of Appeal was right by holding the property in issue as abandoned property.

(c) Whether the Instrument of Transfer issued under the Abandoned Property (Custody and Management) Edict 1969 is a registrable instrument.

(d) Whether in the totality of the evidence the respondent was able to prove his title to the property in issue,”

Similar issues were raised by the learned counsel for the respondent. In his argument in support of the first issue, Mr. Aseh, learned counsel for the appellant, submitted that the Court of Appeal was in error to suo motu declare that Exhibit “G” was void being contrary to the provisions of section 15 of the Abandoned Property (Custody and Management) Edict, 1969. The learned counsel argued that throughout the trial the respondent was aware that Exhibit “G” was the foundation of the appellant’E2’80’99s case. He had every opportunity of raising the issue that the Exhibit was contrary to Section 15 of the Abandoned Property (Custody and Management) Edict and therefore void, but he did not do so.