Benjamin Onwughamba Ezenwa V. Okpara Oko & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, holden at Enugu in appeal no. CA/E/102/79 delivered on the 11th day of November, 1999 in which the court dismissed the appeal of the appellant against the judgment of the High Court of Imo State holden at Afikpo Division in suit no. HAF/13/78 delivered by that court on the 18th day of June, 1979 in which it dismissed the appellant’s claim for statutory right of occupancy, trespass, injunction and specific performance, but awarded the sum of N500.00 (Five hundred naira) damages in lieu of specific performance.

On the 26th day of May, 1978, the appellant, as plaintiff, caused a writ of summons to be issued against the respondents, as defendants, claiming the following reliefs:-

“(i) A declaration that plaintiff is the person entitled to a statutory right of occupancy to a parcel of land near Eke Market, Afikpo and which is part of a larger area of land situate at Amachi village, Afikpo in Afikpo Local Government Area of Imo State within Judicial Division, the annual value which is N10.00 (ten naira).

(ii) N500.00 (Five hundred naira) being general damages for trespass upon the said land.

(iii) Injunction perpetually restraining the defendants, their servants, agents and workmen from further entry upon or interference with the land.

(iv) Specific performance against the defendants in respect of the contract and for lease agreement made on the 26th day of January, 1965 in connection with the renewal of the lease.”

The facts of this case are very simple and straight forward just as they remain undisputed. The original 1st defendant granted a lease of the property in dispute to the appellant on the 26th day of January, 1965 for 10 years as evidenced in exhibit A. Exhibit A was therefore to expire on 26th day of January, 1975, with an option for renewal. In 1966, appellant took possession of the land and laid foundation for a concrete building thereon up to the floor level before the Nigerian civil war forced him to flee Afikpo to his home town, Achina from where he returned in 1971 to find motor mechanics in occupation of the property who atoned tenancy to him as appellant continued with the leasehold.

Sometime in February, 1975, the appellant approached the original 1st defendant/respondent for the renewal of the lease who refused to allow appellant exercise the option and refused to collect further rents from the appellant on the ground that the original 1st defendant/respondent has made a gift of the land in dispute to the 3rd respondent.

On his part, the 3rd defendant/respondent knew of the lease to the appellant and the fact that the mechanics on the land were the sub-tenants of the appellant. In 1978, the 3rd respondent peacefully quitted the mechanics from the land and surveyed same after which the land was formally conveyed to the 3rd respondent by the 1st respondent and he commenced building thereon in April, 1978. In May, 1978, when it finally dawned on the appellant that the 1st respondent had no intention of changing his mind on the option of renewal of the lease, the appellant instituted this action claiming the reliefs earlier reproduced herein.

Learned counsel for the appellant, Chief H. B Onyekwelu in the appellant’s brief filed on 30th day of September, 2007 and adopted and relied upon at the hearing of the appeal on the 29th day of October, 2007, formulated the following issues for the determination of the appeal, to wit:

“3.1 Whether specific proformance of the appellant’s equities cannot be enforced against the 3rd respondent whose ostensible interest over the land is that of a mere volunteer, but is the alleged successor in-title of the 1st respondent;

3.2 Whether on the facts of the case, the appellant was guilty of delay at all or such delay as in the circumstances could deprive the appellant, enforcement of specific performance against the 1st respondent or the 3rd respondent or their successors-in-title;

3.3 Whether fraud or unconscionable behaviour should be specifically pleaded as against setting out facts in support thereof;