Albert Ebenogwu & Anor V. O. O. Onyemaobim (2007)

LawGlobal-Hub Lead Judgment Report

ZAINAB ADAMU BULKACHUWA, J.CA.

By a writ of summons and a statement of claim dated and filed on the 10/10/95, the respondent commenced this action initially against the 1st appellant alone before the Plateau State High Court. Later by an amended writ and statement of claim, the respondent was granted leave to join the estate of one 2nd Lt. Godwin Idoko as a defendant in the matter. Whereupon the respondent as the plaintiff claimed against the 2nd defendant now appellants the following reliefs:

(1) A declaration that the plaintiff is the lawful owner and landlord of that building and premises together with the appurtenances thereto lying and situate at V.39. Mallam Kure Street. Jenta (otherwise called V.39, Jenta New Layout) and that the plaintiff is entitled to lawful possession of and rent on the aforesaid building and premises (V.39, Mallam Kure Street, Jenta. Jos).

(2) A declaration that the plaintiff is entitled to possession of all that piece/plot of land known as (No. V., Jenta New Layout Jos) and a right to be granted a statutory Right of Occupancy over same.

(3) A declaration and/or order that the defendants are trespassers to and are not in lawful possession and/or occupancy of that building and premises lying, being and situate at No, V.39 Mallam Kure Street. (Jenta New Layout) Jos and has (sic) no right to collect and/or use rent collected therefrom.

(4) An order on the defendants to quit and deliver up immediate vacant possession of the building and premises including the appurtenances thereto to the plaintiff.

(5) An order of injunction perpetually restraining the defendants from further dealing in any manner whatsoever with the landed property.

(6) An order for account from the defendants of all arrears of rent/mesne profits on the said building and premises together with the appurtenances thereto at N300.00 per month for each of the three stores and N150.00 per month for each of the eight rooms from October, 1979 until possession of the building and premises together with appurtenances thereto are delivered up to the plaintiff; and payment by the defendants to the plaintiff all money collected by defendants in respect of the said property, inclusive of all such sums due on the four rooms occupied by the defendants.

(7) One Million Naira damages for trespass and/or unlawful possession, and collection or rents on the building and premises together with appurtenances thereto without rendering account, and/or for detention/retention of same.

(8) Costs of this suit.

The respondent case as plaintiff before the lower court was to the effect that he acquired the property in issue as an empty plot from one Dung Jah, the customary owner for the sum of ? 190 pounds on the 26th April 1962. Exhibit A is the sale agreement. That he thereafter applied to and received the approval of the Jos Native Administration to build on the said land. By agreement with two building companies, a building was erected on the land. He tendered the agreements before the court as well as receipts of payments he made to the two building companies. When the ground floor of the building was completed, the respondent obtained the approval of the Jos Native Authority Administration to occupy the building, which he did on connecting electricity to the building. At the onset of the Nigeria Civil War in 1966, the respondent had to leave Jos for Western Region. After the Biafran War, he returned to Jos and went to the Abandoned Properties Committee for the house, which being satisfied of his ownership handed over the property to him.

On going there, he found that the property was completely occupied by the Nigerian Army. On contacting them, they confirmed being B on the property, expressed their desire to remain on same as tenants and paid him his arrears of rent for the time they had been in possession and occupation. He applied for and was granted a new Certificate of Occupancy in respect of the premises.

He left for the East and as a result of sickness and series of misfortunes could not return to Jos till 1979. On going to the Army to collect arrears of rent, he was informed that the army had vacated the propet1y and was no longer interested in renting same.

He went to the property and found a number of civilians including the 1st appellant and the army in occupation. The 1st appellant challenged his ownership of the property and told him that the house belonged to an undisclosed person and that, he was the caretaker. The Army, the State Security Service and the Police tried to intervene in the matter but the 1st appellant was adamant that he was caretaker for an undisclosed owner.