Akpasubi Omonfoman V. C. K. Okoeguale (1986)

LawGlobal-Hub Lead Judgment Report

AJOSE-ADEOGUN, J.C.A. 

The appellant herein was the defendant in a suit instituted at the Ubiaja Judicial Division of the High Court of Bendel State. In it, the claim against him by the plaintiff (now respondent), as slightly reframed in the Amended Statement of Claim, was for the following reliefs:-

“(a) A declaration that the Plaintiff is the person entitled to apply and be granted a customary and/or statutory right of occupancy in respect of the parcel of land known as and situate at No. 1, Agbor Road, Uromi a place within the jurisdiction of this Honourable Court which land is particularly delineated in Pink in survey Plan No. LSF 520 of 27/1/82 filed with the Statement of Claim.

(b) N1000.00 (One thousand Naira) being damages for trespass in that the defendant without the consent or authority of the plaintiff continued to remain in occupation of the said premises known as No. 1, Agbor Road, Uromi and collecting rents therefrom.

(c) An order of perpetual injunction restraining the defendant his servants and or agents from unlawful occupation of the said premises or doing anything inconsistent with the plaintiffs proprietary interest with respect to the said premises.

OR THE ALTERNATIVE

The plaintiff claims mesne profit from 1/4/81 until the date of judgment. ..

From the pleading as well as from the supporting evidence adduced at the trial, the case put forward by the plaintiff/respondent may be easily summarized. The property in dispute (No. 1, Agbor Road, Uromi) contains a main house abutting the main Road and a smaller second building at the rear with out – houses (kitchen and latrine). Although not given in evidence, it was pleaded that the land itself, before the buildings were erected on it, was acquired by one R. A, Uzodenma (now deceased) from the then Okojie I (Ogbidi – also now deceased) in accordance with the customary practice at the time for non Natives, namely, by “Kola Nut system”. After acquisition, the said Uzodenma developed the land by building on it. He and his family then lived there for many years before he died. It was further averred that after the death of Uzodenma, “the heir of his body sold the land (with) the house to one C. A. Chikwuelue”. Thereafter, the family of the deceased left for their town in the then Eastern Region of Nigeria (See paragraphs 4, 5 and 6 of plaintiffs Amended Statement of Claim).

I have deliberately referred to the above pleaded facts, even though no evidence was given thereon at the trial, because of the serious controversy between the counsel for both parties regarding the nature of plaintiff’s radical title and the lack of evidence thereon. Considerable arguments were advanced on the said issue in the court below and the learned trial judge decided it in favour of the plaintiff/respondent. Consequently, the same issue and the trial court’s decision thereon were vigorously pursued in this appeal by defendant/appellant counsel. It would appear that five of the total of ten grounds of appeal herein (original ground 2 and additional grounds 1, 2, 4 and 5) were devoted thereto. I shall return to this aspect of the case later when considering arguments on the relevant grounds of appeal.

It was further the plaintiff/respondent’s case that C. A. Chikwuelue, to whom the land with the front house was sold, lived there for many years until same was sold by him jointly to one F. I. Ezigbo (then a tenant therein) and A. O. Chikwuelue (a brother of the vendor). The two of them paid jointly and in equal shares for the main building. All three were said to be related. That was on 1st August, 1947. After the purchase, the two of them rebuilt the said front house and put tenants therein. They were sharing the rents equally. But it was their vendor, C. A. Chikwuelue, who built the second smaller house at the rear and he remained the owner thereof until his death when it passed on to his next-of-kin and brother, A. O. Chikwuelue. F. I. Ezigbo had no proprietory interest in the said second house.

According to A. O. Chikwuelue who testified in support of the plaintiffs case (P.W. 3), his co-owner, F. I. Ezigbo continued to live in part of the house bought by them until 1960when he left Uromi to settle in Enugu. But he left his family behind and his wife was collecting rents from the tenants. As a result of the civil war in 1967, Ezigbo’s family also left Uromi. The house in question and the second smaller one were subsequently taken over by the Rehabilitation Committee which put tenants therein and was collecting rents from them. The defendant/appellant was said to be one of the tenants so put in by the Rehabilitation Committee.

After the civil war, the first son of Mr. F. I. Ezigbo, who was only three years old in 1947 when his father and A. O. Chikwuelue jointly bought the front house, returned to Benin and went to see their house at Uromi. According to the said son, Dr. F. I. C. Ezigbo, a lecturer in Zoology at the University of Nigeria, he left Uromi in 1965 to study in the same University. When he returned there in January 1970, he found tenants therein and spoke D to them. It was then he learnt that the house was under the management of the Rehabilitation Committee of the then Midwestern State. He returned to Enugu and informed his father about the condition of the house and its management by the Rehabilitation Committee. Thereafter, his father and the co-owner, A. O. Chikwuelue, proceeded to Benin City to demand from the Rehabilitation Committee the return of their own house and that of late C. A. Chikwuelue. The two houses were released – the front one to Ezigbo and A. O. Chikwuelue as per the letter and Certificate of Repossession (Exhibits “B” and “B1”) from the Ministry of Community Development and Rehabilitation, Benin City. The smaller back one was allegedly released to A. O. Chikwuelue also with a Certificate of Repossession which was said to have got lost when his bag was allegedly stolen at Onitsha. The certificate (Exhibit “B1”) in respect of the front house was issued on 11th April, 1970. One important aspect of the plaintiff/respondent’s case touched the question of defendant/appellant’s connection with the entire property now in dispute. According to Dr. Ezigbo (P.W. 2) and A. O. Chikwuelue (P.W.3), the defendant/Appellant approached the two co-owners immediately after the two houses were released by the Rehabilitation Committee, asking to be appointed a caretaker thereof. He was so appointed. As consideration for the duty to be performed by him, defendant/appellant was allowed to remain in the portion already occupied by him, rent free. Printed receipt books were allegedly issued to him. He was said to be collecting rents and paying same over to F. I. Ezigbo and A. O. Chikwuelue from 1970 to 1979 when the former died.

But defendant/appellant continued from 1979 until 1981 to render accounts and pay all rents collected by him to Dr. Ezigbo and A. O. Chikwuelue. It was in March that year (1981) that the two of them decided to sell the entire property in question, consisting of the two buildings and out houses, to the plaintiff/respondent. The front house was sold for N18,000.00 (Eighteen thousand naira) while the smaller rear one was sold for N2,500.00 (Two thousand five hundred naira). Two separate agreements in respect of both sales were tendered in evidence as Exhibits “C” and “F”.

Soon after the aforesaid sale of the property in question to the plaintiff/respondent, the vendors (Dr. F. I. Ezigbo and A. O. Chikwuelue) instructed their solicitors, Messrs Sador & Co., to write to the defendant/appellant informing him about the sale and asking him to give up possession of same to the purchaser. A copy of the said Solicitors letter, dated 31st March, 1981, was tendered in evidence as Exhibit “D”. In a reply dated 29th May 1981 (Exhibit “E”), the defendant/appellant’s Solicitor (J. S. Ehichoya Esq.) stated inter alia, “that the two buildings and the land upon which they are built (belong) to (his) client”. It was further alleged that the defendant/appellant built the said two houses and that F. I. Ezigbo as well as other Ibos were his (defendant’s) tenants before the Nigerian Civil War. “Many reasonable, responsible, respected and honest people at Uromi” were also alleged to know that defendant “built the two buildings and that they are his bona fide property”. Finally the plaintiff respondent himself testified that he bought the property in question and that defendant/appellant had not been paying to him the rents collected from tenants therein and even rents in respect of the two stores and two rooms occupied by him (the appellant) in the main building. Hence this action by the plaintiff/respondent.