Emmanuel Chijioke Orlu V Chief Mpakaboari Gogo-abite (2010)

LAWGLOBAL HUB Lead Judgment Report

A. FABIYI, JSC.

This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division (hereinafter referred to as the court below) which on 5th March, 2002 upheld the decision of Unigbuku, J. (as he the was) of the High Court of Justice, Port Harcourt dated 10th April, 1991 dismissing the Plaintiff/Appellant’s suit for failure to prove his case.

The claim of the plaintiff at the trial court as depicted in paragraph 13 of the Statement of Claim read as follows:-

“(1) A declaration that the plaintiff is entitled to the statutory right of occupancy over and in respect of the property known as No. 21 Nsukka Street Mile 1, Diobu Port Harcourt.

(2)A declaration that No. 21 Nsukka Street, Mile One Diobu was never an abandoned property within meaning of law and that the purposed sale or assignment of the said property to the defendant by the Rivers State Government or its agent is null and void

(3)A perpetual Injunction restraining the defendant by himself or agents or servants from interfering with the plaintiff’s use and enjoyment of the said property.”

It is pertinent to depict briefly the case put up by the parties based on their pleadings as filed and exchanged. The appellant, as plaintiff, maintained that the property in dispute was inherited by him as the first son of his father in accordance with Ikwere native law and custom. It was originally leased to James Orlu by the then Eastern Nigeria Government for seven years and when same expired, the said government gave him a new building lease and transferred it to him (plaintiff). The Ministry of Lands wrote Exhibit L to the tenants. Thereafter he started to collect the rents from the tenants. He renovated the house and also paid property rates.

The case put up by the respondent it that the area known as Mile 1, Diobu, Port Harcourt was originally called Rumuwijo Village. In 1956, the government of Eastern Nigeria cleared the village for the purpose of development. James Orlu, the plaintiff’s grandfather as one the original owners of the land was allocated Plot 15 block 220 otherwise called no. 21 Nsukka Street, Mile 1, Diobu, Port Harcourt for seven (7) years. When the duration of the lease was running out, James Orlu entered a building agreement with a contractor, Urum Kalu Ude to put up the building and collect rents from the house until his outlay was realized vide a building agreement Exhibit A dated 22nd March, 1961. James Orlu also donated an Irrevocable Power of Attorney, Exhibit F to Urum Kalu Ude on the same date.

James Orlu applied for government consent in October 1961 to assign the property to Urum Kalu Ude. Sunday Orlu, the original plaintiff, signed as a witness to the application for consent. The application was approved and James Orlu assigned the property to Urum Kalu Ude.

James Orlu realized that he could not pay back Urum Kalu Ude the cost of the outlay and so he agreed to sell the property. Necessary statutory consent was obtained with the knowledge of his son, Sunday Orlu who turned round to deny that his father sold the property to Urum Kalu Ude. He now claims ownership of the property by inheritance. When the head lease for seven (7) years expired the then Government of Eastern Nigeria renewed the lease to Urum Kalu Ude for another term of sixty (60) years from January 1964 as extant in Exhibit P the unexpired term of this lease was what Urum Kalu ude assigned to the Respondent after the necessary consent of the Government .

The learned trial judge applied the relevant laws to the facts garnered by him. He found that the plaintiff failed to prove his case and dismissed it on 10th April, 1991. The plaintiff felt unhappy with the decision of the trial court and appealed to the court below which on 5th March, 2002 dismissed same. This is a further appeal to this court by the plaintiff/appellant who desires to try his chance.

Briefs of argument were filed and exchanged by the parties in this court. On 26th October, 2009 when the appeal was heard, learned counsel adopted appellant’s amended brief of argument as well as amended appellant’s Reply brief both filed on 13/3/09 and urged that the appeal be allowed. Equally, learned counsel for the respondent adopted respondent’s brief of argument filed on 22nd April, 2004 and urged that the appeal be dismissed.

The two issues couched for the determination of the appeal by the appellant at page 5 of his brief of argument read as follows:-

“(i) Given the state of the pleadings and evidence, which of the parties, appellant or respondent, bears the onus of proof in his case