Deinma Mangibo V. Chief J.I. Oguide & Anor. (2009)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A.

This is an appeal against the judgment of Hon. Justice F.N.N. ICHOKU C.J. delivered on the 5th day of March 1998 in favour of the plaintiff (1st Respondent herein in this appeal). 1st Respondent as plaintiff in the trial court has claimed against the Appellant and the 2nd Respondent herein jointly and severally as follows:

“17(i) A declaration that the plaintiff is the Lessee of the Leasehold properties situate at and known as No.4 and 4A, Bishop Johnson Lane, otherwise known as plots 2 and 9 Block 204, Bishop Johnson Layout, port Harcourt.

In the ALTERNATIVE: A declaration that the plaintiff is entitled to have the lease of the properties renewed in his favour. And an order of court that the lease be renewed in his favour and granted a certificate of occupancy.

(ii) A DECLARATION that the purported sale of the properties to 1st Defendant by the 2nd Defendant is null and void in that the plaintiffs rights interests in and over the properties have not been finally and totally extinguished in accordance with the provisions of the law.

(iii) N2,000.00 damages for trespass.

(iv) A perpetual injunction, restraining the Defendants, their agents and/or servants from further acts of trespass to the properties.

IN THE ALTERNATIVE TO paragraph 17(i) – (iv), plaintiff claims to be entitled to compensation in that 2nd Defendant has deprived him of his properties”.

The parties settled pleadings by filing and service of their respective statements of claim and defence.

The main thrust of the plaintiffs (1st Respondent herein) case is to the effect that the property, the subject matter of the action, that is plots 2 and 9 (later known as No.4 and 4A) Bishop Johnson street Layout Port Harcourt was by a building Lease dated 25/9/63 demised to one Mr. G.I. Etumnu for a term of 3 years certain and that although the Building Lease of the property took effect from 1/1/63, and permission had in fact been granted to the said G.I. Etumnu to start development of the property sometime in 1962. The plaintiff further contended that the Lessee of the property Mr. G.I. Etumnu subsequently in 1965, donated an irrevocable power of Attorney to him which power was duly executed and registered. The said Etumnu also allegedly assigned the subject matter of the case to the plaintiff (now Respondent). The deed of Assignment was not tendered in evidence but the application for assignment which was in any event, not equally registered in the Lands Registry, in Port Harcourt.

The plaintiff claimed further that he let out the structures on the land to some tenants but later on was informed that 2nd Defendant instructed the tenants to be paying rents to a new landlord, being the 1st Defendant who upon the said instruction began collecting rents and was persisting in same before the action was instituted. He further gave evidence that Mr. G.I. Etumnu was dead, and that the lease was for a 3 year duration which had expired and no renewal had been made. In proof of his case plaintiff called 2 witnesses, himself as PW1 and another as PW2.

The main thrust of the 1st Defendant who testified in person, is that the plaintiff lacked the competence to institute the action as he did not plead nor adduce evidence of his title to the subject matter of the case save for the fact that a power of Attorney was made in his favour. He further contended that the Plaintiff never had any interest transferred to him by Mr. G.I. Etumnu or any other person for that matter. It is further contended that the property which lease had expired reverted to the Rivers state Government and the state Governor through the permanent secretary, Lands and Housing Bureau offered the property to the 1st Defendant. That the plaintiff fled Port Harcourt during the Nigerian civil war and in consequence lost physical possession of the property. He claims further that upon payment of the purchase price and due execution of a Sales Agreement between him and the 2nd Defendant, he subsequently took effective physical possession of the premises occupying same and collecting rents from tenants in a part of the property.

The 2nd defendant called 2 witnesses and defence was closed. Counsel addressed the lower court, and in its judgment delivered on 5/3/88 the learned trial Chief Judge entered judgment in favour of the plaintiff as per his statement of claim.

Dissatisfied with the judgment of the trial court, the 1st Defendant hereinafter referred to as the Appellant filed a Notice of Appeal containing 6 grounds of appeal against the said judgment; articulating his complaints from which 3 issues were formulated in the Appellant’s Brief of argument in accordance with the Rules of this court. The issues are as follows: