John Owhonda V Alphonsus Chukwumeka Ekpechi (2003)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

These are an appeal and a cross-appeal against the judgment of Court of Appeal, Port Harcourt Division, delivered on the 5th day of February, 1998, allowing the appeal of the respondent/cross-appellant herein against the judgment of the trial court delivered by Ndu, J., (as he then was), on the 10th of April, 1995, in a consolidated action wherein the respondent/cross-appellant was the plaintiff and the appellant/cross respondent was the defendant. In this judgment the parties will be described hereinafter as the plaintiff and the defendant just as they were described in the aforesaid consolidated suit.

Now, by the first suit No. PHC/275/76 filed by the plaintiff on the 22/7/1976 and in the Further Amended Statement of Claim thereof, the plaintiff prayed for the following reliefs against the defendant:-

“1. Declaration of title to all that piece or parcel of land being and forming part of the land locally called and known as “ONIMGBADA” land which is delineated and verged PINK in the plaintiff’s plan No. UN.D/02/87RS filed with this suit.

2. The sum of N1,000.00 (One Thousand Naira) damages for trespass.
3. An injunction restraining the defendant, his servants agents, and/or privies from further trespassing into the said piece or parcel of land without the plaintiff’s prior consent.”

The second suit No. PHC/75/77 which was filed by the defendant against the plaintiff on the 14/3/1977 claimed almost identical reliefs in respect of the same piece of land.

On the 10/4/1995, Ndu, J., (as he then was), who heard the consolidated suit, dismissed in its entirety the plaintiff’s claims in suit No. PHC/275/76 and found for the defendant in suit No. PHC/75/77. He found merit in the claim for declaration of title to the land in dispute and to the entitlement to a Statutory Right of Occupancy as claimed. He accordingly granted the prayer of the defendant in relation to the declaration of title to No. 36, Azikiwe Street, Diobu, Port Harcourt. The plaintiff felt unhappy with the turn of events and appealed against the dismissal of his suit No. PHC/275/76. He raised 12 grounds of appeal but formulated only the following issue for determination of the appeal by the Court of Appeal:-

“Whether the land in dispute, No. 36 Azikiwe Street, Mile 2, Diobu, Port Harcourt, shown in the litigation plans of both parties as Exhibits P2 and D1 respectively was the part of the RUMUENYIKA family land granted to the respondent by the family in 1948 as claimed by the respondent or part of the said land granted by the said family to Chief Abel Owhonda and Lazarus Owhonda to either of them and which Chief Abel Owhonda and Lazarus Owhonda later conveyed as joint vendors to the appellant by the Deed of Conveyance, plaintiff’s Exhibit P. I”

The defendant, as the respondent in the aforesaid appeal to the Court of Appeal simply put the issue for determination thus:-

“which party to this appeal proved by preponderance of acceptable evidence that he owned the land in dispute.”

Thus, the plaintiff prayed the Court of Appeal to set aside the declaratory relief granted the defendant and at the same to grant him the three reliefs claimed by him. In its determination of the issues submitted to it, the Court of Appeal, Katsina-Alu, Uwaifo, JJCA., (as they then were), and Nsofor JCA., allowed the plaintiff’s appeal and reversed the decision of the trial court. The claims of the plaintiff, dismissed by the trial court, were partially granted in that the claims for damages and injunction were granted while the claim to a statutory right of occupancy over the land in dispute was refused. The Court of Appeal also made a crucial finding in that the defendant’s claims ought to be dismissed because he failed to prove the grant to him by the Rumuenyika family to any defined or ascertained area of land. It is against this decision that the defendant appealed and the plaintiff cross-appealed to this court. It is necessary at this stage to set out the facts of the case before the consideration of the grounds of the appeals and the issues formulated therefrom for determination by this court.

The case of the plaintiff from the pleadings and the evidence, shows that in 1953, he purchased a piece of land from CHUKWUMA NWOBU who signed a purchase receipt for him (Exhibit P3). He took immediate possession of the land cultivating it unchallenged. In 1957 he commenced to build a bungalow on a portion of the land. He completed the building in 1958 and moved into it and lived therein and even put in tenants in part of the building without any challenge from anybody. The portion where the bungalow is erected is now designated as No. 32 Azikiwe Street. In or about 1964, he commenced a storey building on another part of the land now known as No. 34 Azikiwe Street. The building was completed in 1964, and the plaintiff moved and occupied a flat therein and let the other flats to tenants. He further claimed to have started foundation for the last portion now known as No. 36 Azikiwe Street, when or about 9/5/1967 one Chief Abel Ofonda (now spelt Ohwonda) instructed his solicitor Dr. J.I.J. Otuka to write to the plaintiff warning the plaintiff about trespass to Chief Abel Ofonda’s land which is the same land the plaintiff claimed to have purchased since 1953 from Nwobu. After due investigations, the plaintiff became convinced that the land in question did not belong to Nwobu but to Chief Abel Ofonda and his brother Lazarus Ofonda who claimed to be the true owners. The plaintiff renegotiated with Chief Abel Ofonda and his brother who subsequently sold the same land to him and executed in his favour a Deed of Conveyance, which was received in evidence at the trial as Exhibit P. 1.

After the Nigerian Civil War, when the plaintiff returned to Port Harcourt, the buildings on Nos. 32 and 34 Azikiwe Street were returned to him by the new Rivers State Government and he immediately discovered that the defendant had trespassed into the remaining part of the land conveyed to him as per Exhibit P1. He then filed the action against the defendant in respect of that portion of land (Exhibit P2).

On his part, the defendant claimed that the land comprised in the defendant’s litigation plan Exhibit D.1, now known as No. 36 Azikiwe Street, Mile 2 Diobu, Port Harcourt was not part of what was originally conveyed to the plaintiff by Chief Abel Ofonda and Lazarus Ofonda. That the land in dispute formed part of the family property of Rumuenyika Family. That the land in dispute was granted to him by the family in 1948. That he made a survey plan of what was granted to him in 1972 and that he commenced building on the land in 1972 and completed it in 1976. The defendant also pleaded that there was a deed of lease evidencing his grant by the family. It is necessary to emphasise that the defendant failed to produce the survey plan he claimed to have made in 1972 and the purported deed of lease granted to him by the family which he sought to tender was rejected as inadmissible.

It was on this state of the facts that the trial court dismissed the plaintiff’s claims in suit No. PHC/275/76 for the reasons stated in the judgment aforesaid, and declared the defendant, (the plaintiff in suit No. PHC/75/77) entitled to a statutory right of occupancy to the land in dispute.