Madam Maggie Warigbelegha V. Silas Owerre (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

M. DATTIJO MUHAMMAD J.C.A. (Delivering the Leading Judgment)

Some twenty five years ago, the Respondent in this appeal, as Plaintiff, took out a writ against the Appellant and her husband as defendants claiming jointly and severally as follows:-

(i) A declaration that the plaintiff is entitled to statutory right of occupancy over all that piece or parcel of land with the building thereon known as, called and situate at No. 4 Christ Apostolic street Mile 3, Diobu, Port Harcourt.

(ii) Perpetual injunction restraining the Defendants, their agents and servants from further acts of occupation of the said property in dispute as owners.

(iii) N21,250 general and special damages as follows:-

(a) N10,000 general damages.

(b) N11,250.00 special damages being arrears of rent for 15 rooms from June 1979 to September 1985, that is, 75 months at the rent of N10 per room – per month = 75x 15×10.

With the death of the 2nd Defendant, his name was subsequently struck out.

Pleadings were ordered, filed and exchanged. The facts of the case from which the appeal emanated are recounted below. By his pleadings and the evidence, the plaintiff/Respondents case is that he bought the land and property in dispute from PW4 for Six Thousand Naira as evidenced by Exhibit A. PW4 had earlier bought the very property from one M. D. Okechukwu an indigene of Anambra State. The purchase price as evidenced by Exhibit B is one hundred and ninety pounds. PW4 was in possession of the land before the civil war. At the end of the war, PW4’s possession was restored to him by the abandoned Property Authority. Exhibit C is the instrument of transfer and restoration of PW4’s possession. Exhibit D is the Rivers State Government Gazette, a publication of the release to PW4 of the property in dispute at the end of the war. DW4’s name was however misspelt in Exhibit D. The Ministry of Lands and Survey Rivers State conveyed in Exhibit E the correction as to the spelling of PW4’s name. Exhibit F is the Ministry of Land’s letter to the Appellant notifying her of the correction effected on PW4’s wrongly spelt name in Exhibit D and D1.

It is Plaintiff/Respondent’s further case that his application for change of ownership over the land in dispute to the Port Harcourt City Council was effected in the presence of PW4 per Exhibit G. The Plaintiff/Respondent and Pw4 before him paid property rates in respect of the property. Exhibits J and K are receipts in that regard. Exhibit H is the valuation PW4 had prepared in respect of the property. The receipt in respect of the application for certificate of occupancy made by the plaintiff/Respondent to the Rivers State Ministry of land is Exhibit L. The house was in serious disrepair when the Respondent bought it. Exhibit M is the report of the Port Harcourt city council Health Department on the building’s state of disrepair Exhibit N is the permission granted to the Respondent to repair the building. The Defendant/Appellant, the Plaintiff further averred drove him away ensuring that he neither entered the premises nor carried out the repairs. He asked the lower court to declare him entitled to the land and building known as No 4 Christ Apostolic Street, Mile 3 Diobu, Port Harcourt.

Defendant/Appellant’s case, on the other hand, is that she bought the land and building in dispute, No 4 Christ Apostolic Street from one Chief Jumbo Ovunwo an Ikwerre man with whom they made an agreement. The Deed of conveyance dated 3rd March 1975 is marked Exhibit R. She and her late husband stayed in the house for more than twenty years. It is Defendants/Appellants further case that they repaired the house which was in acute state of disrepair per the estimates prepared by a contractor in August 1979 Exhibit S. Receipts of payment in respect of the repairs carried out by the very contractor and bearing dates which spanned between 5th March 1980 and 20th December 1981 are Exhibits S1, S2 and S3.

It is Defendant’s/Appellant’s case also that the land and house in dispute is not abandoned property as Jumbo Ovunwo is an indigene of Rivers State; that the plaintiff/Respondent had visited the land in dispute and requested them to vacate the house as same had been sold to them by one Alinonu. Plaintiff/Respondent had, with pw4 taken the Appellant to court per Exhibit Q whereat the Appellant won. The Appellant entered a caveat, Exhibit T, following Plaintiff/Respondent’s application to the Rivers State Ministry of Lands for a certificate of occupancy in respect of the land and building in dispute. Respondent’s application for the grant of the certificate of occupancy was published in a Newspaper, Exhibit T1. Exhibits U, U1, U2, V V1, W, W1, X X1, Y and Y1 are rates demand notes issued to the Defendant/Appellant by the Port – Harcourt town Council and paid for by her. Appellant never bothered to go to the Rivers State Ministry of Lands to verify the title of the Respondent.

The case having been fully tried, including addresses of counsel was decided by the lower court, Rivers State High Court, Ogbonna J. presiding, in favour of the Plaintiff/Respondent. Being dissatisfied with the court’s judgment delivered on 30 – 1 – 2004, the defendant at the lower court appealed to this court vide her amended Notice of Appeal containing seven grounds.

In compliance with the rules of court, the Appellant has filed her brief of argument and, with Respondent’s failure to do same, moved the court to hear and determine the appeal on her brief alone. Three issues have been distilled from Appellant’s seven grounds of Appeal as calling for determination in the Appeal. The issues read:-