Isaac Ogualaji V. Attorney-General Of Rivers State & Anor (1997)

LAWGLOBAL HUB Lead Judgment Report

O. ADIO, J.S.C.

In the High Court of Justice, Port Harcourt Judicial Division of the Rivers State of Nigeria, the appellant, as plaintiff, sued the respondents. The appellant claimed against the respondents the following reliefs:-

“(1) A declaration that the plaintiff is the owner of the building known as and called Plot 18 Block 256 Orije Layout, Port Harcourt or No. 67 Sangana Street. Port Harcourt or No. 61 Ikot Ekpene Street, Port Harcourt.

(2) A declaration that the purported sale of the said property by the Ministry of Housing and Environment, Port Harcourt to the 2nd defendant without the consent of the plaintiff is unconstitutional, null and void and of no effect whatsoever.

(3) An injunction restraining the 2nd defendant from entering, trespassing or doing anything whatsoever on the said property which is against the proprietory interest of the plaintiff in the said property. ”

The evidence led by the appellant was that the parcel of land on which he built a house, which is now in dispute, was assigned to him by one Mr. Briggs who got an original lease of it from the then Government of Eastern Nigeria. According to the appellant, when war broke out in Nigeria in 1967, he (appellant) left Port Harcourt. After the end of the civil war the house was returned to him by an instrument of transfer dated 17/1/93 by the Abandoned Property (Custody and Management) Authority of the Rivers State Government. The appellant took possession of the property, renovated it and put some persons there as his own tenants.

The 1st respondent led evidence that the lease of the said property was originally granted to one Mr. Briggs who assigned his residual interest in the lease to the appellant. The residual interest assigned to the appellant expired on 31/12/68. It was contended for the 1st respondent that on the expiration of the original lease on 31/12/68 the land reverted to the Government of the Rivers State. It was also contended for the 1st respondent that the land did not really become an abandoned property and that the Government of the Rivers State eventually sold it to the 2nd respondent.

The 2nd respondent led evidence that the land in dispute belonged to him. He purchased it from the Rivers State Government.

After consideration of the evidence led by the parties and of the submissions of their learned counsel, the learned trial Judge dismissed the appellant’s claim. He held that on the expiration of the lease granted to Mr. Briggs, which was subsequently assigned to the appellant, the appellant ceased to have any interest in the land in dispute or in the building thereon. He also held that, in the circumstance, the Government of the Rivers State was perfectly entitled to sell the land in dispute to the 2nd respondent.

Dissatisfied with the judgment of the learned trial Judge, the appellant lodged an appeal against it to the Court of Appeal. The Court below dismissed the appeal. The court below affirmed the decision of the learned trial Judge that at the time that the Government of Rivers State sold the land in dispute to the 2nd respondent, the appellant no longer had any interest in the land in dispute as the lease granted to one Mr. Briggs which was subsequently assigned to the appellant had expired. It also held that the property in dispute was not really an abandoned property.

Dissatisfied with the judgment of the court below, the appellant has lodged a further appeal to this court. The parties duly filed and exchanged briefs. The appellant filed an appellant’s brief and each of the respondents filed a brief. The appellant filed a reply brief to the brief of each of the respondents. When the appeal came before us, the learned counsel for each of the parties made oral submissions to us. Several issues for determination were raised by the parties in their briefs.

In my view, most of them were minor issues because the resolution of them in favour or against any of the parties would not necessarily result in this appeal being determined in favour of that party. For example, there was a complaint against the rejection of an alleged instrument of transfer of the property in dispute to the appellant as an abandoned property. Altogether four issues were raised in connection with that aspect of the appeal, namely, issues No. 1,2,3, and 5 in the appellant’s brief. Be that as it may, the issues raised by the appellant in his briefs will be used for the determination of this appeal. They are as follows:-

“(1) Was the Court of Appeal right in holding that the rejection of the instrument of transfer by the court of trial is no longer appealable being that the appellant consented to it.

(2) Did the refusal of the Court of Appeal to consider the issue of the rejection in evidence of the instrument for transfer and did the rejection of the instrument of transfer in evidence by the trial court occasion a miscarriage of justice to the appellant