Chief Appolos N. Amadi V. Felix Chinda & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, JSC 

The plaintiff, who is now the appellant based his claim for the land in dispute in this appeal on a deed of conveyance registered as No. 140 at page 140 in Vol. 5 of the Deeds Register kept at Port Harcourt, on which the plaintiff was issued with a Certificate of Occupancy. The appellant bought the land, which he developed, from the Ahorlu family of Rumuokokwu, Nkpolu Oroworukwo, and went into physical occupation, constructed some buildings thereon and farmed on the undeveloped parts. In 1983, one Ebikabena Tantua instituted an action against the appellant, in respect of the land but it was struck out. In 1989, the Chinda-Nwoke family, of which the defendants in this suit belong, sued Anebo Ahorlu, original owners of the land in dispute in the Obio Customary Court. On hearing this, the appellant instructed his lawyer to inform the Customary Court of the plaintiff’s interest in the land, but it nevertheless proceeded to give the plaintiffs in that case judgment. The respondents thereafter trespassed on the land and went on a wanton destruction of the property, to wit the appellant reported the matter to the police, who came to his aid. The appellant instituted an action against the respondents jointly and severally claiming the following reliefs:-

“(a) A DECLARATION that the plaintiff is the holder of a statutory Right of Occupancy over the piece of land variously known as “Ekwuodor or 59 Webo/49 National Street, Mile III, Diobu, Port Harcourt within the Jurisdiction of the Honourable court and more particularly described in certificate of Occupancy No. 69 at Page 69 in Volume 116.

(b) Special Damage :-

… … … … … N424,200.00

… … … … … N472,500.00

General Damages N500.000.00

Total N972,500.00.

(c) Perpetual Injunction restraining the Defendants by themselves, servants or agents from further trespass to the said property.”

After filing the statement of claim and the defendants/respondents/appellant refused/neglected to file their statement of defence, the plaintiff filed a motion on notice for an order entering judgment in his favour in default of the defendants filing a Statement of Defence within the time limited by law. Thereafter the defendants/respondents filed and moved a motion on notice for an order of extension of time to file the statement of defence. They were granted the order as prayed. In their statement of defence, the defendants/respondents denied most of the plaintiffs/appellant’s claims to the effect that the land purchased by the plaintiff does not belong to the Ahorlu family as they are not members of the Chinda-Nweke family, but have boundary with it. According to the respondents the Certificate of Occupancy issued to the appellant was not in respect of the land in dispute, so the plaintiff has never been in possession of the land. The respondents averred that the plaintiff visited the defendants family in company of some persons with a view to buying the land in dispute, and they offered to sell for the sum of N250,000.00, but the appellant offered only N25,000.00.

Parties adduced evidence which were appraised by the learned trial judge, who in the final analysis found the plaintiff/appellant’s case proved and gave judgment in his favour. The respondents were not satisfied with the judgment, hence they appealed to the Court of Appeal. The judgment of the trial court was set aside, and judgment was given in favour of the defendants, who are now the respondents in this appeal, which the plaintiff as appellant has filed in this court. In compliance with the rules of this court the appellant filed his brief of argument which was adopted by his learned counsel at the hearing of the appeal, the respondents having refused/neglected to file their brief of argument. The appellant obtained an order to hear the appeal on the appellant’s brief of argument only; hence this judgment will be based on the appellant’s brief only. The issues raised for determination in the appellant’s brief of argument are as follows:-

“1. Whether the learned Justices of the Court of Appeal were justified when they, suo motu, raised very vital issues on which they based their judgment in favour of the Defendants/Appellants/Respondents……….

Whether the learned Justices of the Court of Appeal were wrong in subtly nullifying the Plaintiff/Respondent/Appellant’s Certificate of Occupancy in respect of this property when the Defendants/Appellants/Respondents did not make such a claim.”

The argument of the learned counsel for the appellant under issue (1) supra revolves around pleadings of the parties and the principles of law that govern them, particularly the decision of the lower court that the plaintiff/appellant did not plead special damage, and therefore no evidence ought to be led on that, and so the evidence goes to no issue. I will reproduce the relevant averments in the original statement of claim to determine whether the special damage was pleaded. These averments are:-