Owakah V. Rshpda & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

TIJJANI ABUBAKAR, J.S.C. 

This appeal is against the judgment of the Court of Appeal Port Harcourt Division delivered on the 24th day of November, 2010. The Court of appeal gave judgment in favour of the 2nd Respondent but held that the Appellant be paid the sum of N250,000 by the 1st Respondent as compensation for the purchase price paid by the Appellant.

At the trial Court, the Appellant got judgment, the trial Court held that there was valid sale between the Appellant and the 1st Respondent, it therefore ordered for specific performance. 2nd Respondent’s counter-claim was dismissed.

At the trial Court, by the second amended statement of claim of 16th November, 1994, the Appellant claimed as follows:

a) A declaration that the purported sale of the property No. 38 Elechi Street, Mile 3, Diobu, Port Harcourt to the 2nd Defendant, Mrs. Grace Anum. After the executed sales agreement with the claimant registered as No.50 at page 50 in volume 140 in the Lands Registry Part Harcourt is irregular, null and void.

b) An order of specific performance by the Housing and Property Development Authority of Clause 2(v) of the Sales Agreement dated 23rd August, 1988, the claimant having paid the balance of the purchase (money) or ALTERNATIVELY

The sum of N1 million as special and general damages as follows:

a) Deposit N36,800.00

b) Interest at 5% per annum until judgment.

GENERAL DAMAGES: N936,200.00

After service of the writ of summons, the defendants now Respondents in this appeal filed their separate statements of defence, the 2nd Respondent filed a counter-claim as follows at page 70 of the records of appeal:

1. A declaration that the 2nd defendant is the lawful owner and as such entitled to the statutory right of occupancy in and over the parcel of land with building situate at No. 38 Elechi Street mile 3 Diobu Port Harcourt.
2. The sum of N200,000.00 being and representing general damages for the trespass committed on the property before and during the pendency of this suit.
3. Perpetual injunctions restraining the plaintiff, his agents, privies, assigns or anybody purporting to claim through or in trust for him from tempering with or otherwise disturbing the peaceable ownership and possession of the property in disputeby the 2nd defendant/counter-claimant.

The land in dispute is located at No. 38 Elechi Street, Mile 3 Diobu, Port Harcourt. At the lower Court, the claimant/Appellant’s case was that he purchased the property in dispute from the 1st Respondent, (Rivers State Housing and Property Development Authority), and that he paid the amount which the 1st Respondent fixed for the property, and that he entered into an agreement which was eventually registered.

The property in dispute is one of the abandoned properties vested in the 1st Respondent to sell to members of the general public. The case of the 1st Respondent at the lower Court is that as a Government agency with the responsibility to sell the abandoned property, it caused publication to be made in the National Newspapers that the abandoned properties were offered for sale, and that the 2nd Respondent following the publication, purchased the property. On the part of the 2nd Respondent, at the trial Court, her argument was that at all material times, she lived in the property in dispute with her family as tenant paying rent to the 1st Respondent, and that she later became the owner in possession.

After pleadings were filed and exchanged, the parties called witnesses and tendered various exhibits. At the conclusion of trial, the learned trial judge gave judgment in favour of the plaintiff. Aggrieved by the decision of the trial Court, the two Respondents filed their appeal at the Court of Appeal, Port Harcourt Division. The lower Court in its judgment partly allowed the appeal and held that the 2nd Respondent is the lawful owner of the property in dispute. Dissatisfied with the decision of the lower Court, the Appellant filed a notice of appeal to this Court containing 5 grounds of appeal on the 2nd day of February, 2011.