Dr. Kwazeme Ofondu Vs S. E. Niweigha (1993)

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The plaintiff Dr. Ofondu sued at the High Court of Rivers State sitting at Port Harcourt for a declaration that he was the lawful holder of a right of occupancy by virtue of a lease to him by the Abandoned Property Authority. N10,000.00 damages for trespass and perpetual injunction against the defendant, his agent etc, from further trespass on the land. He further asks for account of rents collected. The land, on which a building stands, is variously referred to as No. 29 Ojoto Street or 56 Anozie Street, Diobu. Port-Hacourt. The defendant denied the claim but insisted that he was interested in 29 Ojoto Street, Diobu which he claimed he acquired by purchase and that he knew nothing about 56 Anozie Street, Diobu which according to him is different from his own building. After hearing evidence of the parties, learned trial Judge dismissed the plaintiff’s claim holding that there was no certainty as to the identity of the property in dispute.

On appeal the Court of Appeal reversed the trial Court’s decision and held that Exhibit E, the conveyance to the plaintiff and Exhibit D the surrender of the same to the plaintiff by the Abandoned Property Authority were sufficient proof that the plaintiff was the owner or holder of right of occupancy. The Court of Appeal, however, in reversing the decision of the trial Court failed to make consequential orders to wit:

1. Declaration that the plaintiff is the person entitled to right of occupancy over the disputed land.
2. Damages for trespass against the defendant.
3. Injunction against the defendant, his agents and servants from further trespassing on the land in dispute.
4. The defendant to render account for the rents he received on the said property. The defendant filed an appeal challenging the decision of the Court of Appeal and raised two issues in the Brief of Argument as follows:

“1. Under this issue, it is the submission of the Appellant that the identity of the land and the property in dispute was not the main issue canvassed for in the Court of first instance i.e. the trial High Justices of the Court of Appeal.

2. Looking at the Writ of Summons, the pleadings and the evidence adduced at the trial show that the main issue on which both the appellant and the respondent joined issues was the title to the land and the property on it or the property in dispute. The identity of the property is only an ancillary to the main issue of title. It was also one of the means or ways the Respondent was to prove his case or title to the said property.”

Thus the main issue is the argument as to the identity of tile land in dispute. There is on record clear evidence that the property can perfectly be said to belong to two streets. It is at the junction formed by the two roads- Ojoto Street and Anozie Street and it could be 56 Anozie Street or 29 Ojoto Street if numbering order is followed on each street. Thus the house No. 29 Ojoto Street is the same as 56 Anozie Street, Mile 2, Diobu, Port Harcourt. The Court of Appeal resolved this because the evidence was before the trial Court. The Court of Appeal in conformity with its powers under S.16 Court of Appeal Act ended its judgment abruptly as follows:

‘In the circumstances, this appeal succeeds. The respondent shall pay N250.00 costs to the appellant.” Thus the Court never adverted to the pleading of Plaintiff/Appellant before it as to the orders he asked for. Though it could easily be inferred that once the defendant’s victory at the trial Court was set aside the plaintiff was given judgment for his claim. It is this ambiguity that led the Plaintiff to appeal and ask this Court to make consequential orders in respect of his claim. The main appellant who was defendant at trial Court, never objected, he in fact never filed a Respondent’s Brief to cross-appeal. However, on the cross appeal, the appellant never disputed the authenticity of Exhibit E and Exhibit D – conveyance of title in 1956 and Notice of Release respectively. The stand of the appellant has always been that the house No. 29 Ojoto Street is a different property from the one called No. 56, Anozie Street. Thus the appellant’s contention was on the identity of the house and plot in dispute. Learned trial Judge held there was confusion and that was the reason for his dismissal of the Plaintiff’s case. Court of Appeal held that on the whole evidence the decision of trial Judge was wrong as the two numbers on the two streets refer to the same land and house on it. In the appeal, the Plaintiff as appellant asks that this Court make the consequential orders which the Court of Appeal inadvertently left out of awarding him the judgment.

The Defendant/Respondent never opposed this and this Court can make the order by virtue of S.22 of Supreme Court Act 1960 as amended by Decree No. 42 of 1976 and also under Order 8 Rule 12(2) Supreme Court Rules 1985. The curious aspect of this appeal is that whilst the Defendant/Cross Appellant does not oppose the Plaintiff’s appeal as to consequential orders he nonetheless filed an appeal contesting the main decision of the Court of Appeal. It is not right for the appellate court to interfere with the trial Court’s finding of fact unless the finding is not supported by evidence, or it is perverse or is based on legally inadmissible evidence or is fraught with error in law whereby it could lead to a miscarriage of justice (Nnajifor v. Ukonu (1986) 4 N.W.L.R (Pt.36) 505; Ibodo v. Enarofia (1980) 5-7 S.C. 42; lzokoyi v. Olojo (1983) 8 S. C. 61 (1983) 2 S.C.N.L.R. 127 Ogunbiyi v .Adewunmi (1988) 5 N.W.L.R. (Pt. 93) 215, 216, 217. In the instant case the plaintiff has proved a better title by virtue of Exhibits D and E and his possession to the land in dispute is better Amakor v. Obiefuna (1974) 3 S.C.67. The defendant attempted to demolish the rights of the plaintiff by a purported conveyance merely two days older than Exhibit D, the Notice of Release to the plaintiff by the Abandoned Property Authority, whereas Exhibit E, a conveyance dating to 30th October 1956 exists in favour of the plaintiff in respect of the same land. There is no attempt by defendant to challenge the validity of Exhibit D, rather the defendant contends that it only referred to a different land. I find no merit in the cross-appeal and it is hereby dismissed with N1,000.00 costs to the respondent as costs in this Court and N500.00 as costs at the trial Court.

The main-appeal succeeds as I make the following consequential orders that the Court of Appeal inadvertently left out:

1. Judgment is entered for the Plaintiff/Appellant as claimed that he is declared the rightful holder of right of occupancy over the land situate at 56 Anozie Street otherwise referred to as 29 Ojoto Street, Diobu, Port Harcourt.
2. N5,000.00 is awarded against the Defendant for trespass onto the same land.
3. Perpetual injunction against the Defendant, his agents or servants from further trespassing into the land in dispute as aforementioned.
4. The Defendant to render account of the rents he has been receiving in respect of the building on the said land in dispute; and in giving effect to this order the Defendant/Respondent shall within sixty days from today render account of all rents collected from the property from 1st day of August, 1975 to today and a copy of such account which will be served on Chief Registrar. High Court of Rivers State shall be served on the Plaintiff/Appellant.

KAWU, J.S.C.: I have had a preview of the lead judgment of my learned brother, Belgore, J.S.C. which has just been delivered. I entirely agree with his conclusion that there is no merit in the cross-appeal. It is accordingly dismissed with N1,000.00 costs to the respondent. For the reasons set out in the lead judgment, I too will allow the main appeal. I abide by all the consequential orders made in the lead judgment.

OMO, J.S.C.: The Claim of the appellant in the Rivers State High Court (Port Harcourt) against the respondent was for-

(a) Declaration that the property known as 56 Anozie Street, or 29 Ojoto Street Mile 2 Diobu Port Harcourt is the property of the Plaintiff.

(b) N10,000.00 damages for trespass.

(c) Order of Court compelling defendant to account to the plaintiff or the rents received on the said property from August 1975 till judgment is given in this case.

(d) Perpetual injunction restraining the defendant, his agents and servants from further interference with the rights and interests and ownership of the property aforesaid. After pleadings were duly filed, the court heard evidence of the parties and address of counsel on their behalf.

In a reserved judgment it dismissed the appellant’s claim solely on the ground that the identity of the property in dispute had not been established. Specifically, that the appellant had not satisfied him that 56 Anozie Street is the same property as 29 Ojoto Street; the respondent having claimed he only knows about 29,Ojoto Street, which belongs to him. On appeal to the Court of Appeal, the judgment of the High Court was set aside, the Justices of the Court below holding that the main issue before the Court is identity of the property in dispute which the appellant had, on the evidence, succeeded in establishing. It however failed to make any consequential orders with reference to the plaintiffs claim. Both parties are therefore aggrieved with the judgment of the Court of Appeal, and have appealed to this court against same. The respondent has appealed against the whole judgment and the appellant against the failure to make necessary consequential orders.