David Itauma Vs Friday Jackson Akpe-ime-2000

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

The appellant herein as plaintiff sued the defendant (respondent) at the Eket High Court claiming the following reliefs:

(a) A declaration that there is no valid and/or any lease agreement between the plaintiff and the defendant whereby any grant was made to the defendant of the land called “Anyankana” or any part thereof.

(b) A declaration that the defendant is a licensee whose licence to occupy the said land or site was determined either by notice or breach of condition under a parol agreement.

(c) Order of ejection.

(d) Injunction.

The plaintiff’s case as stated in his amended statement of claim and his evidence in court is that first, he is an illiterate. Secondly, that he granted the defendant a mere permission to erect a temporary stall in the forecourt of the land at an annual rent of #4 (four pounds) in 1962. See paragraphs 7-9 of the amended statement of claim. He denied ever granting the defendant a 99year lease over the land in dispute.

The case of the defendant is that in 1962, he approached the plaintiff for a lease of the piece of land in dispute. The plaintiff granted him a 99 year lease at an annual rent of #4 (Four Pounds). Lease agreement tendered as Exhibit B was thereafter prepared and executed. He said he was let into possession by the plaintiff. The learned trial judge in a reserved judgment dismissed the plaintiff’s claim. The plaintiff’s appeal to the Court of Appeal was dismissed. He has now further appealed to this court upon a number of grounds.

Counsel for the plaintiff formulated three questions for determination in this appeal. These are:

1. Did the courts below advert their minds to the onus and burden of proof and did the respondent discharge the burden of proving that appellant granted him a lease of a portion of his land in Exhibit B
2. Whether the courts below considered that it was not a part of the defendant/respondent’s case as pleaded that he was granted the land in equity or according to the customary law of the people.
3. Having regard to the fact the appellant’s illiteracy was admitted, did the courts below consider clear provisions of Section 3 of the Illiteracy Protection Ordinance Cap. 88 which was in force in 1962

The defendant has adopted the issues for determination formulated by the plaintiff.

I shall consider the three issues raised together. To appreciate the case of each party, it is necessary to have a recourse to their respective pleadings. The plaintiff, in paragraphs 1,2,3,4,5,6,7,8 and 9 of the amended statement of claim averred as follows:-

“1. The plaintiff is a night watchman and an illiterate working for the Ministry of Works and Transport Eket and is a native and resident of Usung Inyang, Eket in the Eket Local Government Area within jurisdiction of the Honourable Court.

2. The plaintiff is the owner and in possession of the land known and called “Anyankana” situated along Eket-Oron Road, Eket.
3. The plaintiff lives and has a house and shop situated on part of the said “Anyankana” land.
4. The said “Anyankana” land with three buildings situated thereon is more particularly delineated and edged pink on the plan No. RIM/3425 attached to this statement of claim.
5. In this statement of claim the word “premises” or site means part of the “Anyankana” land occupied by the defendant and the word “land” means where the con permits the “premises” or “site”.
6. The plaintiff lives in the rear building marked “A” indicated in the said plan and lets out building “C” as a watch repairer’s shop and restaurant which situates to the far right and the land and building marked “B” situated nearest Eket-Oron Road presently in the occupation of the Barclays Bank Nig. Ltd. Eket, is a subject matter of this action against the defendant.
7. In or about the year 1962 on a date uncertain, the defendant approached the plaintiff requesting that he (defendant) be given permission to erect a temporary shed in the fore court of the plaintiff’s land (the said Anyankana land) for use in selling provisions and drinks. The plaintiff was not agreeable to this proposition.
8. However, after much persistence by the defendant and the promise of the defendant that his stay will be temporary and that he will vacate the site whenever requested to do so by the plaintiff, the plaintiff succeeded (sic) to the request of the defendant but not without stressing to the defendant that in the near future the plaintiff intends to erect a permanent building on the site.
9. For the use of the site by the defendant, the plaintiff charged the defendant an annual rent of four pounds which by conversion is N8 (Eight naira).

In his response, the defendant pleaded in paragraphs 2,3,4,5,6,7,8,9,10, 11 and 12 as follows:

2. The defendant admits paragraph 1 of the plaintiff’s amended statement of claim. The said land is also known to the plaintiff as “Anyankana Okukwot Usung Inyang.”
3. The defendant denies paragraph 2 of the plaintiff’s amended statement of claim and adds that the plaintiff is only in possession of a small portion of the land and not the land which is the subject matter of this suit. The other portion were (sic) the Barclays Bank building is situate is in the possession of the defendant by a lease agreement for 99 years executed between the plaintiff and the defendant on 19th March, 1962. The said agreement and the survey plan of the land No. IN/5805 drawn by a Licensed Surveyor Mr. I. O. Inyang will be founded upon at the trial.
4. The defendant admits paragraph 3 of the plaintiff’s amended statement of claim.
5. The defendant is not in a position to deny or admit paragraph 4 of the plaintiff’s amended statement of claim and will put the plaintiff to the strictest proof of the allegations therein contained.
6. The defendant is not in a position to admit or deny paragraph 5 of the plaintiff’s amended statement of claim.
7. The defendant is not in a position to admit or deny paragraph 6 of the plaintiff’s amended statement of claim and will put the plaintiff to the strictest proof of the allegations therein.
8. The defendant denies part of paragraph 7 of the plaintiff’s amended statement of claim but admits that in or about 1962, the plaintiff with full consent, granted a lease of the portion of land on which the Barclays Bank building situates to the defendant for a term of 99 years at the rent of four pounds now N8.00 (eight naira) per annum, which the defendant paid regularly yearly and for which receipts dated 19th January, 1967 thumb impressed by the plaintiff, 25th January, 1964 signed by the plaintiff’s son, one Samuel David, January, 1965, 25th January, 1966, 1st April, 1967, 17th April, 1968 and 4th April, 1969 all signed by the plaintiff’s son, one Etuk Itauma, will be relied upon by the defendant.
9. The defendant further adds that when the plaintiff granted the said lease, he was an adult and was fully aware of the implications thereof.
10. The defendant further adds that the lease granted him by the plaintiff was not for the building of a temporary shade for selling provisions and drinks but for any purpose whatsoever.
11. The defendant denies paragraph 8 of the plaintiff’s amended statement of claim to the extent which it alleges that the defendant’s lease was “Temporary and that he will vacate the site whenever requested to do so by the plaintiff.” However, in further answer to paragraph 8 of the amended statement of claim, the defendant says that the plaintiff granted him a lease for 99 years renewable every ten years at the rent of four pounds now N8.00 (eight naira) and that the plaintiff was only entitled to the reversionary interest at the end of the ninety-nine years. In further answer to paragraph 8 of the plaintiff’s amended statement of claim, the defendant adds that the plaintiff has never at anytime stressed to the defendant that in the near future he, the plaintiff, would like to put a permanent building on that site.
12. The defendant admits paragraph 9 of the plaintiff’s amended statement of claim.

From these averments, certain facts emerge. First, that the radical title to “Anyankana” land was in the plaintiff. Secondly, that whereas it is conceded that the plaintiff made some form of grant of the portion of the land, the subject of this suit, to the defendant in or about 1962, the issue is whether what was granted was a determinable right to erect temporary sheds as the plaintiff claims or a lease for 99 years as the defendant maintains. Thirdly, it was not a part of the defendant’s case as pleaded that he was granted the land in equity or according to the customary law of the people.