Grace Madu Vs Dr. Betram Madu (2008)

LAWGLOBAL HUB Lead Judgment Report

ADEREMI, J.S.C.

This is an appeal against the decision of the court below (Court of Appeal sitting in Abuja) delivered on the 12th of April, 2002 allowing the respondent’s appeal, setting aside the judgment of the trial court delivered on the 24th March 2000 and in its place, entered an order dismissing the plaintiff/appellant’s claim in toto.

I shall preface the consideration of this appeal with the relevant facts leading to same. The plaintiff (hereinafter referred to as the appellant) and the defendant (hereinafter referred to as the respondent) got married sometime in 1976 and cohabited as husband and wife. They had four children. They ceased to live together as husband and wife from November 1993. By a Land Application Form dated 15th May, 1990, Ref. No. MFCT/LA/90/AN/2685, the Ministry of Federal Capital Territory, Land Administration Department, acting on the instruction of the Honourable Minister acknowledged the receipt of the application form for allocation of land duly completed by the appellant. Suffice it to say that the written response of the Minister dated 15th July, 1990 was addressed to the appellant. According to the appellant, the respondent, her husband then, and who was a staff of the Federal Capital Development Authority, was entrusted by her with the processing of the application and follow up towards obtaining the Certificate of Occupancy. She (the appellant) claimed she made available to her husband, the respondent, all the money needed to facilitate the allocation of the plot of land to her. The respondent however contended that he paid all the expenses on the land. He also claimed that he informed the appellant that he would apply for the land using the appellant’s name and that the appellant never raised any objection to the idea. It was at this stage that cohabitation between the husband and wife ceased. The respondent at this point in time went and collected the original Certificate of Occupancy. When the appellant realised that the respondent had collected the Certificate of Occupancy without her knowledge and consent; she demanded for the release of same to her. But the respondent refused to hand it over to her. And all entreaties for the release having failed, the appellant sought a redress from the court of law. She claimed from the defendant/respondent the following reliefs: –

“(1) A declaration that the plaintiff is the owner/allottee of the plot covered by Certificate of Occupancy No. FCT/ABU/AN.2685.

(2) A declaration that the plaintiff is entitled to immediate possession of the said Certificate of Occupancy.

(3) An order of perpetual injunction restraining the defendant from trespassing into the said plot.

(4) N5million general damages for trespass.

Alternatively: N5million general damages for waste.”

It should be noted that at the commencement of the suit, the plaintiff/appellant had in her writ of summons joined the Hon. Minister of the FCDA as the second defendant, but she later brought an application which was granted, striking out the name of the said Minister as the second defendant.

Pleadings were filed and exchanged between the parties. The case then proceeded to hearing at the end of which, in a reserved judgment, delivered on the 24th of March 2000, the trial judge found in favour of the plaintiff/appellant. In so doing, the learned trial judge reasoned: –

“Having listened to and watched the parties in the case, I have no doubt in believing and preferring the case made out by the plaintiff as against that of the defendant who seems like a drowning man holding on to a straw for survival. Accordingly, judgment is hereby entered for the plaintiff against the defendant. It is the finding of this court that the plaintiff is the rightful owner and allottee of Plot No. 237 covered by Certificate of Occupancy No. FCT/ABU/AN. 2685 and I accordingly hereby so declare; that it is hereby declared that the plaintiff is entitled to take possession of the said Certificate forthwith, which Certificate of Occupancy shall be deposited with the Registrar of this court within seven days of the judgment of this court. That the defendant is hereby restrained from further trespassing into the said Plot No. 237. The plaintiff claims the sum of N5million as general damages for trespass alternatively N5million damages for waste. The particulars of this claim were not stated nor convasses (sic) in court per the paroce evidence of the plaintiff…… No evidence was however led in expatiation (sic) of the said claim for damages. I am left with no choice than to award a nominal damage, since no materials have been placed before me to enable me even apply common sense or equity to make any reasonable deductions to be awarded. Accordingly, a nominal damage of N100,000.00 is awarded.”

Dissatisfied with the judgment of the trial court, the defendant who is now the respondent before us, appealed therefrom to the court below (Court of Appeal); which after listening to the addresses of their respective counsel, in a reserved judgment delivered on the 12th of April 2002, allowed the appeal, set aside the judgment of the trial court and in its place, entered an order dismissing the plaintiff/appellant’s claim in toto. In so doing, the court below had reasoned: –

“In the circumstances of this case, the respondent relied solely on the fact that the C of O was issued in her name. The appellant sought to show at the time he applied for the land there was a pending marriage between the parties, and with her agreement, applied for and paid for all fees chargeable on the plot in her name. The C of O and all receipts though issued in the name of the respondent, were in his custody. He built on the land and infact gave it out on rent to the people who are now in occupation.

It is only when the marriage soured that the respondent initiated this action.