Ejike I. Ugoji V. Eze (Dr.) A.i. Onukogu (2005)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

At the Owerri High Court of Imo State, the respondent as the plaintiff, claimed against the appellant, as the defendant, for (a) Declaration of tight to statutory certificate of occupancy; (b) Ten thousand Naira as general and special damages for trespass and (c) a perpetual injunction. The claims were in respect of a parcel of land described as Plot No. 287 Ikenegbu Layout, Owerri.

The parties filed and exchanged pleadings after which the suit was tried by Chianakwalam, J. who, on 20th November, 1985, granted the reliefs claimed by the plaintiff save that two thousand Naira was awarded as damages instead of the ten thousand Naira claimed. The defendant was dissatisfied with the judgment. He brought an appeal against it before the Court of Appeal sitting at Port-Harcourt (hereinafter referred to as ‘the court below’). The court below on 16/3/93 in its judgment, affirmed the judgment of the trial court. Still dissatisfied, the defendant has brought a further appeal before this court. In the appellant’s brief filed on behalf of the defendant, the issues for determination in the appeal were identified as the following:

“1. Whether the respondent discharged the onus of proof on him as a plaintiff seeking a declaration of title to the land in view of the pleadings, facts and evidence led in the case.

2. Whether the respondent established that exhibits “L” and “N” relate to the land in dispute.
3. Whether by virtue of the provisions of the Land Use Act and having regard to exhibit “P”, the respondent could in law be declared the owner of the land in dispute.
4. Whether having regard to the pleadings and evidence led, it was right to hold that exhibit “P” was fraudulent and spurious.
5. Whether the Court of Appeal was right to have failed or neglected to consider the issue of the decision of the trial court to exclude from evidence, the document relating to the lease between the appellant and Gordon A. Njemanze.
6. Whether the document relating to the lease between the appellant and Gordon A. Njemanze is admissible in law.
7. Whether the Court of Appeal was right in enchasing the damages for trespass awarded against the appellant.”

The respondent in his brief of argument adopted the issues for determination as formulated by the appellant. It is necessary that I examine briefly the facts leading to the dispute from which this appeal arose, as pleaded by parties before the trial court.

As the claims of the plaintiff convey, this was a land dispute. It is in respect of a plot of land at Ikenegbu Layout along Whetheral Road, Owerri described as Plot No. 287. The plaintiff pleaded that the land was allocated to him in 1970 after he had paid the requisite fees. It was pleaded that two plots of land in the same Ikenegbu Layout, that is, Plots 287 and 288 were also allocated to plaintiff. At a time the Military Governor of Imo State had directed that no one should be allocated more than one plot in the layout. One of the plaintiff’s two plots, that is, Plot 288 was withdrawn from him. The policy was later reversed and the plaintiff got back the aforesaid Plot 288. The plaintiff had a lease agreement in respect of the land and had been in possession of the land. In 1977, the plaintiff commenced the development of Plot 288, which is adjacent to the plot in dispute. In 1981, the defendant came on the land and erected thereon a ‘batcher’. The plaintiff challenged the defendant. The defendant later commenced the erection of a concrete fence on the land in an attempt to enclose it. The plaintiff destroyed a part of the concrete fence. He later brought his suit claiming as earlier stated in this judgment.

The defendant’s case in his statement of defence was that he obtained a certificate of occupancy on 24/11/81 over the land in dispute. The defendant described the land as Plot 288 and not 287 as the plaintiff described it. The defendant stated that the confusion, in the manner the plots of land in the layout were numbered, could have been the result of a mistake by the officials of the State Ministry of Lands and Survey. The defendant pleaded that ownership of land in the Ikenegbu Layout was vested in individual land owners, who upon a sale of the land to people executed deeds in their (the people’s) favour. It was pleaded that the Owerri Town Planning Authority, through whom the plaintiff claimed, did not own any land in the layout. The defendant further pleaded that he acquired the land in dispute in 1961 from one Gordon A. Njemanze. The land was then known as ‘Nwankwuosa’. The said Gordon A. Njemanze confirmed in writing the transfer of the land to the defendant. The defendant had since been in possession of the land. In 1981, the plaintiff trespassed thereon. The defendant resisted this but the plaintiff begged the defendant to allow him (the plaintiff) keep the building materials, which he needed in developing a structure on the adjoining Plot 288, on defendant’s land. The defendant reluctantly agreed. The defendant pleaded that he had erected the ‘batcher’ on the land in dispute about 12 years before the plaintiff came on the land in 1981.

It was on this state of pleadings that the suit was tried. A few observations may be made on the parties’ pleadings. Although the plaintiff pleaded that the land was allocated to him by Owerri Town Planning Authority, nothing was pleaded as to how the Owerri Town Planning Authority became entitled to allocate the land to the plaintiff. The defendant in his pleading did not fare much better. He pleaded that he had a certificate of occupancy from the Imo State Government and that a land owner Gordon A. Njemanze who testified before the trial court as D.W.2 had sold the land to him. The defendant however did not plead how Gordon A. Njemanze derived his title to the land in dispute.

I now consider together appellant’s issues one and four. In paragraph 7 of his statement of claim, the plaintiff pleaded:

“7. The plot in dispute was originally allocated to the plaintiff following the advertisement sometime in 1970 by the Owerri Town Planning Authority, (predecessor in title to the present Owerri Capital Development Authority) to allocate plots at Ikenegbu Layout area to successful applicants.”

The defendant in paragraphs 6 and 10(a) of his statement of defence pleaded:

“6. The defendant denies as false and misleading paragraphs 7,8,9,10, l0b, 11, 12and 13 of the statement of claim which paragraphs have been cleverly and mischievously dressed to suit the plaintiff’s purpose. The land in dispute was never allocated to the plaintiff but to the defendant.

The defendant further states that if at all payments were made by the plaintiff, it was for one plot only and not two. The Owerri Town Planning Authority and the Owerri Capital Development Authority each has no title in the Ikenegbu Layout. The layout belongs to the Ikenegbu Land owners of Owerri who allocated and signed the deeds of transfer, save in the case of existing leases of original owners in possession before the inception of the layout whose leases are left untouched and unharmed. The defendant comes under this exception.

10(a) The defendant denies as false, the assertion in paragraph 16. The defendant further states that Owerri Capital Development Authority is not in any lawful position to release any plot to anybody, save as transferred by the Ikenegbu Land Owners.”