Mrs. Vidah C. Ohochukwu V. Attorney-general Of Rivers State & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

ALOMA MARIAM MUKHTAR, J.S.C

The appellant in this appeal was initially one of two plaintiffs in the High Court of Rivers State who sought the following reliefs against the defendants/respondents:-

“1. A declaration that the certificate of Occupancy registered as No.76 at page 76 in volume 93 in the Lands office Port Harcourt in respect of Plot A27 G.R.A. Phase I Port Harcourt property of the Plaintiff is correct, valid and subsisting.

2. A declaration that the purported sale of the said property to the 3rd defendant by the 1st and 2nd defendants is unconstitutional null and void and of no legal effect.
3. N50,000.00 special and general damages for unlawfully purporting to sell the said 1st plaintiff’s property.
4. A perpetual injunction restraining the defendants by themselves, their servants, agents or privies from further unconstitutionally interfering with the 1st plaintiff ‘s ownership or possession of the said property situate lying and being at Plot A27 G.R.A. Phase 1, Port Harcourt.”

The history of the property is that the plaintiff applied for allocation of the plot in controversy from the Rivers State Government, and he was allocated the plot vide letters, and after complying with the conditions of allocation i.e payment, the plaintiff was issued with a Certificate of Occupancy. The plaintiff erected a building on the plot, and he has since been paying ground rents in respect of the said property. A commission named the Sanomi’s commission was set up by the Rivers State Government to look into sales of landed properties in the state. In its report the property was listed among plots that had reverted to the Government of Rivers State, and it was agreed that the land in controversy be assigned to his common law wife (the appellant) to enable him raise money to defray the bank loan used in erecting the building on it, and a deed of assignment was prepared and executed, and forwarded to the Secretary to the Government requesting for consent of the Military Governor. When the property was included in the list of properties seized, the plaintiff lodged a protest and when the plaintiff applied for assignment, the Commissioner of land, replied that the property had reverted to the Rivers State Government, hence the application for assignment could not be processed. The plaintiff pleaded that the Rivers State Government is estopped from revoking the Right of Occupancy after they had expended so much money on erecting a building on it, and any such revocation is ultra vires null and void.

The defendants in their various statements of defence denied most of the allegations in the plaintiffs’ statement of claim, stating that the revocation was justified as the plaintiff was in breach of the covenant contained in the certificate of occupancy for non-payment of ground rent.

The 1st defendant denied that the proposed deed of assignment between the plaintiff and the appellant sent to the Secretary to the Government was not approved. The 3rd defendant in his statement of defence contended that he is a bona fide purchaser for value without notice of the property in dispute, and that the plaintiffs have no cause of action against the 3rd defendant. The action is frivolous, speculative, incompetent and must be dismissed. The name of the 2nd plaintiff was struck out, but on the demise of the 1st plaintiff, the 2nd plaintiff was substituted as an appellant.

At the close of pleadings parties adduced evidence which was appraised by the learned trial judge, who at the end of the proceedings gave judgment in favour of the plaintiff and granted all the reliefs sought.

Dissatisfied with the judgment, the defendants appealed to the court of Appeal, Port Harcourt Division. The Court of Appeal, allowed the appeal, concluding thus:-

“In the result I am of the view that this appeal succeeds and it is allowed. The judgment of H. George J, given on 7th January 1994 is hereby set aside. The claim of the respondent in suit No. PHC/557/86 in the lower court fails. It is accordingly dismissed with costs assessed at N3,000.00 in favour of the appellants and N5,000.00 costs in this appeal also in favour of the appellants.”

The appellant after substitution appealed to this court. In compliance with the rules of this court, the parties exchanged briefs of argument, two briefs of argument were filed by the learned counsel for the appellant, but at the hearing of the appeal he adopted the brief filed on 13/3/2009. A brief prepared by the Director of Civil Litigation department, Rivers State, Mrs. Minakiri, had as its heading 1st and 2nd Respondent’s brief of argument, but at the hearing of the appeal, Mrs. Minakiri informed the court that the brief was in respect of the 1st respondent only, and she accordingly adopted it.

The 2nd and 3rd respondents briefs of argument were also adopted at the hearing of the appeal, Three issues for determination were raised in the appellant’s brief of argument, which read as follows:-

“1. Whether the decision of the court of Appeal that the trial court did not appreciate and consider the issues raised in the suit is right and supported by the evidence on Record.

2. Whether the Court of Appeal was right in dismissing the suit of the Plaintiff/Appellant.
3. Whether the Court of Appeal was right when it dismissed the Plaintiff ‘s claim instead of ordering a retrial.”

The learned counsel for the 1st respondent is of the view that a lone issue which reads as follows will suffice for the determination of the appeal.

The issue is:-