Chief Sunday N.A. Uzor (Suing By His Attorney, Mr. Solomon Iwebuzor) V. Delta Freeze Nigeria Ltd & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SULEIMAN GALADIMA, J.C.A. (Delivering the Leading Judgment)

The Appellant as the plaintiff initiated this case by a writ of summons in the High court of Rivers State in the Port Harcourt Judicial Division. After the writ was duly served on all the Respondents then Defendants, only the 1st Respondents entered appearance by filing a Memorandum of Appearance. The other Defendants namely the second and the third did not enter any appearance and filed no pleadings in his suit. In the 1st Respondent defended the action.

Pleadings were duly filed and exchanged between the Appellant and the 1st Respondent.

Appellant’s claims in this suit stated in paragraph 26 of the statement of claim and reproduced on pages 10 – 11 of the record are as follows:

“26, WHEREFORE the plaintiff has suffered loss and damage and claims from the Defendants as follows.

(a) A declaration that the purported sale of the property known as and called 33 Okoroji Street D/Line Port Harcourt to the first Defendant is unfair, unjust, null and void and of no effect whatsoever and should be set aside.

(b) A declaration that the plaintiff is entitled to the Right of Occupancy in the said property, the same having been first allocated to the plaintiff before the property sale to the first Defendant.

(c) A perpetual injunction restraining the first Defendant, his servants agents or otherwise from disturbing the peaceful possession of the said property by the plaintiff and/or the tenants lawfully put in by the plaintiff or in any way interfering with the plaintiff’s possession of the same.

(d) In the alternative, the sum of N31,500.00 (thirty-one thousand, five hundred naira) being the amount spent in building up, remodeling and completion of the building together with interest at the prevailing bank rate from October, 1974 till judgment is, given in this suit, the value of the Naira as against International currencies as it was in 1974 being taken into consideration at the time of Judgment. ”

The case of the plaintiff as revealed from his pleadings and the records, simply put, is that the property in dispute that is No. 33 Okoroji Street D/Line Port Harcourt belongs to the Rivers State Government which subsequently, in response to his application for allocation of same, was duly allocated to him vide allocation letter from the then Rivers State Military Governors office dated 10th July, 1974. The original, not a photocopy of the allocation letter, was tendered and admitted in evidence and marked Exhibit “B”. The Appellant also tendered in evidence a letter dated 5th June, 1974 by which he applied for allocation of the property to him. After the allocation of the property to the plaintiff to the appellant, he took possession and expended huge funds in renovating and improving the standard and quality of the property. That the plaintiff enjoyed peaceful possession until the 1st Defendant emerged in 1987 claiming ownership of same property by virtue of purchase from the Rivers State Government.

On the other hand, the 1st Defendant’s case is that it bought the property in dispute from the Rivers State Government and was issued with a building lease which was executed on 16/3/79, tendered and admitted in evidence and marked Exhibit “F1”. That there was no revocation of the said allotment.

Trial commenced with the plaintiff testifying as PW2. His evidence was in accordance with facts pleaded in the amended statement of claim that the property in dispute was duly and properly allocated to him by the Rivers State Military Governor pursuant to his application for such allocation. PW2 further testified that he carried out extensive renovation works on the property.

The 1st Respondent counter-claimed against the plaintiff for declaration of title to the said property; N600,000 for use and occupation and/or loss of rents on the subject matter and possession. The 1st Respondent has contended that at all material time, there was no demand for payment of any sum for the purchase of the property from the Rivers State Government neither was there any form of payment by the plaintiff for the subject matter in furtherance of any sale or lease. That the subject matter was not conveyed to the plaintiff in any manner. In short the case of the 1st Respondent was that it purchased the subject matter from the Rivers State Government which issued it a building lease dated 16/3/1979, registered in the land Registry as 90/90/79 and admitted in evidence as Exhibit F.

At the end of the trial, the learned trial Judge dismissed the Plaintiff s claims on 17/1/2002. As regards the 1st Defendant’s counter-claim, for the sum of N600,000 for use and occupation and/or loss of rent in respect of the one duplex it was dismissed.