John I. Ogbu V. Best Wokoma (2005)

LAWGLOBAL HUB Lead Judgment Report

AKINTAN, J.S.C.

The appellant as plaintiff commenced this action at Port Harcourt High Court in 1982 as suit No. PHC/272/82 against the respondent as defendant. The claim was in respect of a dispute arising over the ownership of a house at 185 Ikwerre Road, Port Harcourt. The action was instituted by the appellant through his attorney, Nnanna Oji Ogbu, the administrator of the estate of Oji Ogbu (deceased).

The plaintiff’s claim as set out in paragraph 9 of the amended statement of claim is as follows:

“(a) N100, 000 special and general damages for the trespass committed by the defendant to the plaintiff’s premises situated at No. 185 1kwerre Road, Port Harcourt in September, 1982

(b) An account of all rents collected by the defendant from tenants of the said premises and payment over to the plaintiff of any amount found due.

Perpetual injunction restraining the defendant either by himself, his servants and/or agents from committing any further acts of trespass in respect of the premises aforesaid.”

Pleadings were filed and exchanged and the trial took place before Fiberesima, J. The plaintiff’s case at the trial was that the land in dispute originally belonged to Charles Nyeowa, Micheal Oguogbo and Clinton Nmereni. These original owners sold the plot to one John Emeafor and a deed of conveyance executed in favour of this purchaser dated 18th March, 1958 was registered as No. 58 at page 58 in volume 103 at Enugu Land Registry, but now at the Land Registry Port Harcourt. The purchaser, John Emeafor, in turn, sold to the late Oji Ogbu and a deed of conveyance dated 9th May, 1958 and registered as No. 79 at page 79 in volume 103 at the Land Registry, Enugu but now also at the Land Registry, Port Harcourt. The portion of the land sold to the late Oji Ogbu is shown in the survey plan attached to the conveyance and admitted at the trial as exhibit 3.

Oji Ogbu, after purchasing the land, cleared it and built three houses on the land. But he had to abandon the property during the Nigerian civil war and the property was then treated as one of the properties abandoned in Rivers State. The property was later known as No. 185 Ikwerre Road, Port Harcourt. After the civil war, Oji Ogbu, returned to Port Harcourt and the property was released to him. The release was published in the Rivers State Official Gazette No. 43, Vol. 6 of 17th October, 1974 and an instrument of transfer dated 5th November, 1974 (exhibit 5) was executed in his favour. Oji Ogbu thereafter continued to exercise all acts of possession and ownership over the property until he died on 3rd April, 1971. He rented the property to tenants and collected rents from the tenants, while he was alive. The administrators of his estate continued to collect rents from the tenants after his death.

In September, 1982, the defendant forcefully entered the said property and forced the tenants to start paying rents to him. He claimed to be the owner of the property. He also claimed that the land on which the houses in dispute were built was his father’s share out of a large parcel of his family land inherited from his said father. He contended that the vendors who sold to the plaintiff had no authority to sell the land.

The trial court accepted the defendant’s story and dismissed the plaintiff’s claim. The Court of Appeal also dismissed an appeal filed against the trial court’s judgment. The present appeal is against the decision of the Court of Appeal. The appellant filed 14 grounds of appeal against the decision and the parties filed their respective briefs of argument in this court. The appellant filed an appellant’s brief and a reply brief. The respondent, on the other hand, filed a respondent’s brief. The appellant formulated the following six issues as arising for determination in the appeal:

“1. Whether the court below was justified in affirming the trial court’s finding and conclusion that the plaintiff/appellant did not show any nexus between exhibit 3 and No.185 Ikwerre Road in dispute and did not prove the identity, ownership and possession of same to warrant the dismissal of his appeal.

2. Was the court below right to affirm the trial courts decision/findings that the appellant failed to convincingly establish by evidence that his principal had any buildings on No. 185 Ikwerre Road, Port Harcourt
3. Whether the court below was right to affirm the trial court’s decision/finding that the appellant did not show where the property was advertised before it was released to him and that the said release, was surrounded in uncertainty
4. Whether the failure of the court below to adjudicate and make pronouncement on the appellant’s issues Nos. 1 and 5 for determination occasioned miscarriage of justice against the appellant
5. Was the court below right to affirm the trial courts decision that the defendant did not trespass into the plaintiff/appellant’s property in dispute
6. Whether from the totality of admissible evidence before the court below, the pleadings and peculiarities of the property in dispute as an abandoned property, the plaintiff/appellant failed intoto, to prove his case.”

The respondent, on the other hand, formulated a single issue as arising for determination in the respondent’s brief. The single issue is:

“Whether the Court of Appeal was wrong in affirming the judgment of the trial court.”

It is submitted in the appellant’s issue 1 that where a survey plan is attached to a document of title showing the land conveyed, the identity of the land cannot be said to have been undefined. Reference is made in this respect to the deed of conveyance with an attached survey plan No. E.C. 126/58 by which Oji Ogbu acquired the property in dispute (exhibit 3). It is argued that the contention of the learned trial Judge, which the court below affirmed, that the appellant failed to properly identify the property being claimed was therefore out of place. The survey plan attached to the said survey plan (exhibit 3) is said to contain more than three buildings built thereon by Oji Ogbu in 1958. The identity of the property and the houses built on it were therefore said not to be in dispute.