Godwin Nsiegbe & Anor V. Obinna Mgbemena & Anor (2007)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO, J.S.C

In the Rivers State High Court, Port Harcourt Judicial Division, the appellants as plaintiffs claimed against the respondents for-

“(i) A declaration that the plaintiffs are persons entitled to the rights or certificate of occupancy of the piece or parcel of land lying, situate and being at No. 43 Ikwerre Street, Diobu, PortHarcourt which is verged YELLOW on survey plan No. CABR/35LDI79 of 31st January, 1979.

(ii) A declaration that the instrument of transfer purported to have been issued by the Abandoned Property Authority to the defendant in respect of the building on this land is null and void and of no effect whatsoever and is hereby revoked;

(iii) An injunction to restrain the defendant whether by himself or his servants or agents or otherwise howsoever from interfering with the plaintiff’s rights of occupancy of the said land.” Pleadings were ordered, filed and exchanged between the parties who thereafter called witnesses in proof of their respective claims and/or defences at the trial. The learned trial Judge Dappa, J. delivered a considered judgment on 30th March, 1984 dismissing the claims of the plaintiff/appellant. The plaintiff/appellant then appealed to the Court of Appeal, Port Harcourt Division which also heard the appeal and dismissed it on 21st of May, 1991. Still dissatisfied, the appellant appealed to this court.In this court, the parties filed and exchanged their written brief as required by the rules of court. In their joint brief, the appellants formulated 3 issues for determination of this court as follows:-

Whether the Court of Appeal was right to uphold the judgment of the trial court on the ground of acquiescence

Whether from the pleadings and evidence in this case, the respondents are in possession of the land in dispute.

Whether the respondents are the owners of the land in dispute.The respondents in their joint brief also raised only 2 issues to be determined in the appeal. They read:-

(i) Was the Court of Appeal light to uphold the judgment of the trial court on the ground of acquiescence,

(ii) Was the Court of Appeal right when it held that the respondent was in constructive possession of the land in dispute.From the above, it is very clear to me that the two issues of the respondents are the same as issues (i) and (ii) of the appellants. Both issues are properly distilled from the 1st and 2nd grounds of appeal filed by the appellants. Issue (iii) of the appellants talks about the ownership of the land in dispute. The substance of ground 3 is to challenge the finding of the Court of Appeal to the effect that by virtue of the registrable instruments i.e. exhibits ‘B’ and ‘J’ the respondents did not get any legal interest in the land in dispute. This is clearly relevant to the ownership of the said land. It is therefore my view that issue (iii) is properly distilled from ground of appeal 3 of the appellants and will be considered in the appeal. I now consider the issues raised by the appellants in the appeal.

Issue 1. This issue asked “whether the Court of Appeal was right to uphold the judgment of the trial court on the ground of acquiescence”. In this issue the main grouse of the appellants is that the learned trial Judge decided the case on acquiescence which was not pleaded by the respondents in their statement of defence without giving the appellants the opportunity to address the court on the matter, and the Court of Appeal brushed this aside and held that acquiescence was raised by the respondents at the trial.

Let me begin by defining “acquiescence”. “Acquiescence” means assent to an infringement of rights either express or implied from conduct by which the right to an equitable relief is lost. It takes place when a person with full knowledge of his own rights and of any acts which infringe them, has, either at the time of infringement or after infringement by his conduct led the persons responsible for the infringement to believe that he waived or abandoned his rights”. (See Dictionary of English Law by Earl Jowitt, 2nd Edition, 1965, page 36).

In this case, the learned trial Judge after reviewing the facts of the case in his judgment came to conclude thus:-

“Save for the evidence by the 2nd plaintiff that the defendant came measuring the land, that Dandeson Owhonda Nsiegbe asked him to stop measuring it, but that he refused which evidence, however is not based on pleadings, there is no iota of evidence that Dandeson Owhonda Nsiegbe made any protests at all during the time the building was erected by the defendant….