Chief Michael O. Okonyia V. Nnamdi Ikengah & Anor (2000)

LawGlobal-Hub Lead Judgment Report

BA’ ABA, J.C.A.

This is an appeal against the judgment of the High Court, Asaba, in suit No. A/9/86, brought by the defendant who is now the appellant. The plaintiffs who are now the respondents initially instituted this action against one Edwin O. Okonkwo now deceased and the appellant and claimed as per paragraph 17 of their joint statement of claim as follows:-

“17 (i) Declaration that the plaintiffs are entitled to Statutory Certificate of Occupancy in respect of a piece of land being situated and lying on the Okpanam/Asaba Road in Asaba Urban and shown verged pink on survey Plan No.VLD/BDI/90.

(ii) Recovery of the said land from which the defendants have ejected the plaintiffs since about three years ago.

(iii) Perpetual injunction restraining the defendants, their agents, servants, workmen, heirs and successors and persons claiming through them from any or further or interference over the plaintiff’s enjoyment of the said land”.

Pleadings were ordered, filed and duly exchanged. The original statement of claim of 17 paragraphs dated 10/1/86, was filed on 15/10/86. The original statement of defence of 14 paragraphs dated 7/1/87 was filed on 16/1/87. The record shows that on being served with the statement of defence, the plaintiffs sought and obtained leave to file a reply to the statement of defence. Accordingly, a reply to the statement of defence dated 5/6/87 was filed on 13/7/87, the day leave was granted.

Thereafter, there were few amendments to the original pleadings by both parties.

However, the amendments to the statement of claim were effected by hand on the body of the original statement of claim. The final amended statement defence dated 25/1/91 was filed on 14/3/91.

At the trial, the 1st respondent testified for both respondents and they jointly called six witnesses. For his part, the 2nd defendant testified on Oath and called five witnesses.

The respondent’s case was that the plaintiffs are the administrator and administratix of the estate of late George Onyechi Ikengah, of Aboh in Ndokwa Local Government Area of Bendel State of Nigeria, who died at Onitsha on 4/11/76. The first Plaintiff is the son, and the second plaintiff the widow of late George Onyechi Ikengah. Letter of Administration, without will of the estate of late George Onyechi lkengah was granted to the Plaintiffs on 7/11/79. The plaintiffs sued the defendants as administrators of the estate of George Onyechi Ikengah.

The land which the plaintiffs seek to recover from the defendants, referred is along Okpanam-Asaba Road, in Asaba, within the jurisdiction of Delta State High Court. Late George Onyechi Ikengah, until his death in 1976 was the owner of the land in dispute which he acquired by purchase from Joseph Iloba Ogbotobo of Ogba, Onishe Family of Asaba who were the absolute owners. At the time of the purchase in 1967, late George Onyechi Ikengah was working for the Asaba ile Mills Ltd. The purchase price for the land in dispute was paid by late George O. Ikengah by two instalments. Consequent upon the purchase, the late George Onyechi Ikengah went into possession of the land and planted economic trees and melina trees and planted annual crops on the land in dispute without interruption from any person whatsoever. Late George Onyechi Ikengah got the unregistered deed stamped by the Commissioner for Stamp Duties at Benin City as Document No.ML 8845. After the Nigeria civil war, Late George Onyechi Ikengah continued to plant and reap economic crops on the land in dispute without let or hindrance from anybody whatsoever. In June, 1971, he got the services of Mr. G.O. Obianwu, a Licensed Surveyor to take a survey of the land in dispute and produce a plan. After the death of George Onyechi Ikengah, the plaintiff stepped into the shoes vis-a-vis the land in dispute. The plaintiffs reap the economic fruits on the land in dispute, plant seasonal crops and let the first defendant to plant crops on a portion of the land in dispute upon payment of a token tribute or in consideration of looking after the land in dispute for the plaintiffs. Sometime in 1982, the defendants broke into and entered the land in dispute and without the permission and consent of the plaintiffs removed two of the beacons on the land in dispute, cleared portions of the land in dispute. As time went on, they enclosed a large portion of the land in dispute with concrete walls upon which they fixed an iron gate. They then proceeded to construct two structures on portion of the land in dispute removing some economic crops planted by the late George Ikengah and the plaintiffs. It took a long time for the plaintiffs to seek out the defendants. In the mean time, the plaintiffs reported the incident to the police at Asaba while still looking for the trespassers. When the plaintiffs sought out the first defendant, he at first denied knowing anything about the trespass. Later, the plaintiff sought out the second defendant who admitted in the presence of Dr. Ogeah that, it was the first defendant who sold the land in dispute to him and that it was the second defendant and the first defendant who are erecting the structure on portions of the land in dispute. Neither the plaintiffs nor late George Onyechi Ikengah sold the land in dispute or portion of it to the first defendant. The first defendant has no title in the land in dispute to convey to the second defendant nor has the second defendant acquired any title in the land in dispute, hence the institution of the action.

The appellant’s case was that on the 5th day of January, 1977, the first defendant in accordance with the native law and custom of Asaba, sold the land in dispute to the appellant. Before purchasing the land in dispute, the appellant made all necessary inquiries from many people at Asaba including members of the Ogba-Onishe family of Umuagu Quarters, Asaba and they confirmed to the appellant that the first defendant was then the owner of the land in dispute. On purchasing the land in dispute, the appellant immediately went into possession of the said land on the 5th day of January, 1977, bulldozed the same, fenced the same, round with concrete cement blocks and installed an iron gate at the entrance of the said land.

From 1977 to 1981, the appellant farmed on the land in dispute, by planting yams and pawpaw plants thereon. In 1983, 1984 and 1985, the appellant planted yams on the unbuilt up portions of the land in dispute. Early in 1982, the appellant deposited various building materials including cement blocks, stones, sand, timber etc. on the land in dispute and as soon as the appellant’s building plan in respect of the land and dispute was approved, the appellant started the erection of a storey building and a bungalow house on the land in dispute. By December 1982, the storey building had reached the wall plate level of the first and each of the floors, the ground floor and the first floor consists of two three-bedrooms flats. The bungalow house had in December, 1982, reached the wall plate level; the building consists of two bedroom flats. The appellant connected pipe-borne water to the land in dispute in 1982. From 1977 to 1985, nobody interferred with the appellant in the exercise of his acts of ownership and possession over the land in dispute. On the 11th day of March, 1986, the respondents damaged part of the appellant’s rear wall on the land in dispute and caused some damage to the iron gate and the padlock with which the appellant locked up the gate on the land in dispute. The appellant reported the matter to the Nigeria Police, Asaba, and the respondent was charged to court but as there was a pending suit in the High Court, Asaba, on the issue as to the ownership of the land in dispute, the charge was struck out by the Chief Magistrate.

The learned trial Judge, Edah, J. on 4/3/93, delivered his judgment in favour of the respondents when he held: