Inna Akubo V. Mrs. Joanna D. Braide & Anor (2009)

LawGlobal-Hub Lead Judgment Report

EJEMBI EKO, J.C.A.

The Appellant was the Plaintiff at the High court of Rivers State where he had gone claiming, as per his amended statement of claim the following reliefs

(i) A declaration that the plaintiff is the lease holder, owner or lessee of the piece or parcel of land together with the building thereon situate or lying at No. 43 Bishop Johnson Street, Port Harcourt, otherwise known as and called Plot ‘O’ Block 196, Port Harcourt

(ii) N5, 500. 00 being special and general damages for trespass.

(iii) Perpetual injunction restraining the 1st defendant, her servants or agents and all other persons claiming through or under them from committing further acts of trespass on the said property.

The learned trial judge heard evidence of the parties and the submissions of their respective counsel. In his considered judgment the learned trial judge dismissed the case of the Appellant, as the plaintiff, on 8th June, 2004. Hence this appeal.

The undisputed facts of the case are – the Appellant, by lease dated 24th February, 1951, was granted a non-European lease of plot No ‘O’ Block 196 otherwise known as No. 43 Bishop Johnson Street, Port Harcourt for 20 years commencing on 17th May, 1948. The lease was granted by the then Government of Eastern Nigeria. Upon the execution of the lease, the Appellant erected a building on the plot of land. He lived in the building with his family. During the civil war, the Appellant left Port Harcourt to his home community in old Owerri province, now Imo State. He left Port Harcourt in 1967. The civil war lasted fro 1967 to 1970. He came back to Port Harcourt upon the Cessation of the Civil war. The property was treated as an abandoned property during the civil war. After the civil war the Appellant returned to Port Harcourt and resumed his occupation of the house No. 43 Bishop Johnson Street, Port Harcourt (hereinafter referred to as “the disputed property”). In the meantime Rivers State upon its creation in 1968 became the successor to Eastern Nigeria, and therefore the grantor of the Appellant’s non-European lease in respect of the disputed property.

In 1973 by an Instrument of Transfer, dated 5th April, 1973 pursuant to section 18 of the Abandoned Property (Custody and Management) Edict No.8 of 1969 of Rivers State the Abandoned Property Authority of Rivers State formally transferred to the Appellant “the control and management” of the disputed property. This Instrument is in evidence as Exhibit B. The return of the disputed property to the Appellant as the “owner” of the land by the Governor of Rivers State was published earlier in the official gazette of Rivers State No. 56 of 1st November, 1972 (Rivers State Government Notice No.451). The gazette is in evidence as Exhibit C.

By its tenure of 20 years, the Non-European Lease” Exhibit A”, was executed for the period of 1948 to 1968. After Exhibits B and C the Appellant applied to the Government of Rivers State for the renewal of the lease vide letter dated 5th April, 1973. He received no replies to the letter. However, by letters dated 26th April, 1978 and June 1978 (respectively Exhibits D and E) from the Ministry of Lands and Survey the Appellant was directed to pay his outstanding arrears of the ground rents in respect of the disputed property Appellant paid the arrears of ground rents on 5th July, 1978. Thereafter Appellant requested the said Ministry of Lands and Survey to give him “Rates Payment Demand” to enable him pay land or ground rents from 1979 to 1984. He paid property rates to the appropriate Local Government of Rivers State from 1977 to 1983.

In 1981, precisely on 18th August, 1981, out of premonition that the Rivers State Government might sell the disputed property the Appellant caused a warning notice to both the Government and prospective buyers to desist from buying or selling the property. The publication was in the Nigerian Tide of 18th August, 1981 – Exhibit H. The Government of Rivers State, now represented by the 2nd Respondent, eventually sold the disputed property to the 1st Respondent and issued her with certificate of occupancy over the same. Their defence is that with the expiration of the lease, the plot reverted to ‘the Government of Rivers State and that the Appellant’s interest in it had been extinguished upon the expiration of the lease. The Respondents contend that the certificate of occupancy issued to 1st Respondent by the Government of Rivers State was proper and valid. Appellant at the trial court argued that he had an interest in the disputed property that is constitutionally protected or guaranteed.

The learned trial Judge (Justice E.N.T. Ebete) held in his considered judgment, delivered on 8th June, 2004 inter alia that

i. Once the lease expired on the 16th May, 1968 the land automatically passed on to the State in accordance with section 10 of the State Lands Law Cap. 122 of the Laws of Eastern Nigeria.

ii. The authority of UDE v. NWARA ([1993] 2 SCNJ 47,[1993] 2 NWLR [pt.278] 638 which laid down the principles that where the leasee continues to pay rents and the landlord continues to accept the rents a new lease under the Law Cap. 122 has been created does not apply in the instant case because of the certificate of occupancy, Exhibit V, issued to the 1st Respondent by the 2nd Respondent.

iii. Though the instrument of Transfer was not a registrable instrument, it made no valid transfer since the lease had expired and was not renewed because at the time of the transfer the property no longer belonged to the Appellant. On this ground the learned trial judge distinguished the case of JOSEPH IGBONGIDI v. JOHNSON UMELO (1993) 8 NWLR [pt)310] 130.