Dr. Harry Ezim Vs. O. C. Menakaya

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

The appeal herein is against the judgment of the Court of Appeal (lower Court) Enugu Judicial Division delivered on 10th July, 2007 which dismissed the judgment of the trial High Court of Justice, Enugu of 19th March, 2004.

BRIEF STATEMENT OF FACTS

By diverse instruments witnessed and/or attested to by beneficiaries and/or descents of one Mr. Gabriel E Okiy, Appellant become vested of the disputed land in this appeal. The property was originally known as Plot 1, Workshop Avenue Layout, Enugu, later re-designated as No 14, John Nwodo Close, Enugu/No. 9, John Nwodo close, Enugu; but presently known and described as No 25/27, John Nwodo Close, G.R.A. Enugu. The original owner, Mr. Gabriel E. O. Okiy (Okiy) (now deceased) was a native of Sapele in the present day Delta State and the said land was granted to him by the then Eastern State Government when he was serving at the Ministry of Agriculture, Eastern Nigeria. The grant was consummated by a building lease dated 6/2/61 registered as No 12 at Page 12 in Vol. 259 of the Lands Registry Office of Enugu

While alive,

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Okiy put the Respondent on the said land as a Caretaker and the Respondent remained so until 21/1/81 when Okiy died. Okiy left a will bequeathing the said property to his children. It was the Respondent through his son, Obi who introduced the said property to the Appellant and through the Respondent, the Appellant entered into the transaction with the children/descendants of Okiy.

Pursuant to the execution of the Power of Attorney and a Deed of Assignment dated 16th December, 1998 registered as No. 4 of Page 4 in Vol. 1454 of the Lands Registry Office at Enugu, the entire Property together with all the improvements thereon were transferred for value to the appellant by the beneficiaries/descendants of Okiy, to wit, Beke, Robo, Ebun and Oguniya. Despite the transfer of title and in spite of protestations by the appellant, the respondent remained on the land after the sale purporting to be making some changes thereon.

Hence, the appellant instituted a civil action against the respondent at the High Court of Justice, Enugu; appellant was the Plaintiff at the trial Court, while respondent was the defendant. The Writ of Summons and Statement of Claim are

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dated 30th June, 2001 but filed on 3rd July, 2001.

The appellant, as Plaintiff before the trial Court, claimed the following reliefs against the Respondent (then Defendant):-

i. AN ORDER for immediate possession of the entire property originally known as Plot 1 Workshop Avenue Layout (now 25/27 John Nwodo Close Enugu).

ii. N68,000.00 Mesnse Profits for the use and occupation of part of the same at the rate of N10,000.00 per month from 1st December, 1995- 31st June, 2001.