Chief Effanga Itaken V. MR. Effiong Ekpenyong Offiong & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of the High Court of Cross River State, Calabar Division Coram Hon Justice Obojor A. Ogar, J., delivered on September 28, 2012, in which the learned Judge dismissed the claims of the Appellant.

The Appellant was the claimant before the lower Court. The subject matter of this appeal is a parcel of land situate at Itaken Street by Itaken Lane, Ikot Effanga Mkpa, Calabar Municipality. The land in issue was part of a large expanse of land owned by the Appellant, described as an illiterate. In 1979, the Appellant expressed his intention to lease out of the large expanse of land an area of 100 feet by 50 feet (450 squaremetres), to the Respondents, for term of 99 years and at the annual rent of N40.00 (forty Naira), being N3,960.00 (three thousand nine hundred and sixty Naira) only for the said term of 99 years.

In furtherance of that intention, on November 14, 1979 the Appellant received the sum ofN520.00 from the Respondents as an amount to cover thirteen years,being 1980 – 1993 and issued a receipt. The parties also executed a Lease Agreement, which was

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to take effect from January 1, 1980.

Part of the terms as agreed between the parties was that the Appellant shall have the land revert to him in the event that the Respondents are in arrears for a year after demand or non-observance of the terms of the Lease Agreement. It was alleged by the Appellant that the said Lease Agreement did not reflect the terms as agreed by the parties. Instead of 99 years, it stated the lease would be for 90 years. The executed Lease Agreement had no annexed survey plan delineating the expansion of the100 feet by 50 feet as agreed on.

The Appellant alleged that the Respondents unilaterally altered the Lease Agreement from reading that the dimensions of the land would be 100 feet by 50 feet to 100 feet by100 feet, thereby increasing the dimensions of the land by an extra 50 feet. The Appellant denied that the alteration was either made by him or sanctioned by him. He also alleged that the Respondents further expanded the dimensions of the land to 100 feet by 109.65 feet (985.96 square metres) without his consent.

In addition to the encroachment on the land, the Respondents refused to pay the balance of the land rent for the remaining 86 years,

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which amounted to N3,440.00 (three thousand four hundred and forty Naira).

As at the time the suit leading to this appeal was instituted in 2009, the Respondents had stayed on the property for an upward period of 16 years (1993 – 2009) after the expiration of the 13 years they paid for. The land rent for those 16 years amounted to N640.00 (six hundred and forty Naira).

The Appellant, in view of these breaches, began to confront the Respondents, demanding that the Respondents vacate the land in issue,but they refused to do.

The Appellant alleged that the Lease Agreement was flawed in that it had no illiterate jurat as required under the Illiterate Protection Law of Cross River State in force as at 1980; and secondly, it was not registered under the Land Instrument Registration Law of Cross River State inforce as at 1980. The receipt dated November 14, 1979, issued for the payment of N540.00 for 13 years also had no illiterate jurat on it.