Obi Eze V. A.G. Rivers State (2001)

LAWGLOBAL HUB Lead Judgment Report

S. U. ONU, J.S.C.

This is an appeal against the Ruling of the Court of Appeal (Port Harcourt Division) hereinafter referred to shortly as the court below, dated 24th May, 1995, refusing the Plaintiff/Appellant’s application to argue new points of law not hitherto argued in the High Court.

The facts of this case which are straight forward enough, may be summarised briefly as follows:

The Plaintiff/Appellant claimed in Suit PHC/139/83 in the Port Harcourt (Rivers State) High Court among other reliefs, a declaration that the purported sale of his buildings situate at Plot 2, Block 260 – Wobo Layout, Diobu known as No. 61 Ikwerre Road, and registered as No. 36 at page 36 in volume 280 at the Lands Registry, Enugu now kept at Port Harcourt, to the 2nd Defendant (herein 2nd Respondent) is unconstitutional, and null and void, and an account of any monies received by the 2nd Respondent as rents from the tenants of the premises and payment over to the Appellant or in the alternative, N380,000.00 as the market value of the said property.

By his 13 paragraph Amended Statement of Claim, he (Appellant), averred that by a deed of lease dated 30th March, 1961 and registered as No. 69 at page 69 in Volume 260 of the Lands Registry, Enugu now Port Harcourt, Messrs George Ezeikpe, Sunday Agwu, Anagha Ezeikpe and Agu Trading under the name and style of George Ezeipke Brothers and Sons, were granted lease of the property in dispute by the then Minister of Town Planning, Eastern Nigeria. Further, that by a deed of assignment dated 7th December, 1964 and registered as No. 36 at page 36 in Volume 380 in the same registry the lessees assigned the unexpired term to the Appellant, who took possession of the same, erected a building thereon consisting of two buildings of three floors in front of the premises and another house of three floors behind. Further still, that on completion of the building, he and his family resided in part of it and let the other rooms between 1965 and 1968 though forced to flee Port Harcourt in the wake of the Nigeria civil war.

On the cessation of the Nigerian civil war, the Appellant said he returned to Port Harcourt and tried to regain possession of the buildings but was informed that 1st Respondent had acquired the premises with all the buildings thereon. He thereupon stated that on 25/8/80, he discovered that the 2nd Respondent in Suits No. PMC/62/80, PMC/63/80 and PMC/64/80 had sued all the tenants occupying the premises for recovery of the premises. Wherein he also applied and was on 3/10/90 joined as co-defendant in a suit adjourned sine die by the Chief Magistrate Court. On a further inquiry at the Lands Office and Abandoned Property Office in Port Harcourt, the Appellant stated that he discovered that the 2nd Respondent had paid a deposit of six thousand Naira for the land, house and premises sold to the 2nd Respondent for a consideration of Sixty thousand Naira. Appellant then averred that as he had not been paid any compensation for the land, buildings and premises, hence he brought this action.

The 1st Respondent countered by a 10 paragraph Amended Statement of Defence wherein he admitted that the property in dispute is State land and that the lease of 30th March, 1961 was for a term of 40 years commencing from 1st January, 1959 and registered as No. 69 at page 69 in Volume 260 of the Land Registry Enugu. He averred that the partners trading under the name and style of Ezeikpe Bros & Sons indeed granted an irrevocable power of attorney registered as No. 73 page 73 in Volume 255 of the Lands Registry to the Appellant which was effected without the prior consent of the Governor. Further, the 1st Respondent admitted the deed of assignment of the unexpired lease of 10 years in favour of the Appellant registered as No. 36, page 36 in Volume 380 of the Lands, but stated that the same was without the prior consent of the Governor. In further answer, the 1st Respondent averred that by virtue of the provisions of the Abandoned Property (Custody and Management) Edict 1969), the property became abandoned property lawfully leased to the 2nd Respondent and the same registered as No. 99, page 99 in Volume 79 of the Lands Registry, Port Harcourt. Finally, the 1st Respondent averred that by virtue of the Public Officers Protection Law, and the Abandoned Properties Decree, No. 90 of 1979 Laws of the Federal Republic of Nigeria, the action is statute-barred, and the court has no jurisdiction to entertain the Suit.

The 2nd Respondent, a policeman, in his 19 paragraph Amended Statement of Defence, whilst admitting the property in dispute to be 61 Ikwerre Road, Port Harcourt, averred that the property was not assigned to him but leased to him by Rivers State Government under the State Land Law as per Deed of Building Lease dated 19th March, 1979 and registered as No. 99 at page 99 in Volume 79 of the Lands Registry, Port Harocurt further stated that the property being State land subject to State Land Law, on 18th July, 1979, the Abandoned Properties Implementation Committee (APIC for short) offered and he accepted, to buy the property in dispute by paying a purchase price of N6,800.00 after securing a loan of N61, 200.00 from the Federal Mortgage Bank for its development. He further stated that upon completion of the purchase, the Rivers State Government granted him a lease of the property per Deed of Building Lease dated 19th March, 1979 and registered as No. 99 at page 99 Volume 79 of the Lands Registry, Port Harcourt. Finally, he admitted that he told the tenants to attorn tenant to him and that he had been collecting rents from them. He relied on Section 1 (1) of the Abandoned Properties Decree (No. 90) of the 1979 by contending that any interest the Appellant has in the property is compensation as advertised in the Nigerian Tide Publication of Monday 15th July, 1985. Except where necessary, little will be said henceforth about the 1st Respondent in the rest of this judgment.

Be that as it may, first attempt was made by the 1st Respondent to abort, rather prematurely, the Appellant’s claim by the plea that the latter’s action commenced in 1983 was statute-barred since both Respondents are public officers having regard to the Public Officers Protection Law Cap. 106, Laws of Eastern Nigeria, applicable to Rivers State. After arguments were proferred before the trial Court (Coram D.G. Douglas, C.J.), that court ruled by dismissing the application.

The case then commenced with the evidence of the Appellant through whom Exhibit A (power of attorney) and the proceedings of the Magistrate Court in Suits PMC/62/80, PMC/63/80, and PMC/64/80 respectively vide Exhibit B, were tendered and received in evidence. Also tendered through the Appellant were the Deed of assignment between Ezeikpe & Bros and Obi Eze vide Exhibit D, tax receipt and assignment of lease etc. (Exhibit C) and the Valuation Report of the house (Exhibit E).

For the defence, the one and only witness called on 1st Respondent’s behalf was the Chief Lands Officer in the Ministry of Lands and Housing, Port Harcourt, namely DW. 1. Through this witness the lease granted to the 2nd Respondent was received as Exhibit F. Thereafter DW. 2, the Estate Surveyor of the 2nd Respondent, testified. He tendered Exhibit G., the Valuation Report. Next, he testified through his Attorney, a brother-in-law as DW.3. The latter tendered the power of attorney – Exhibit H, Followed by Exhibit J – the letter of offer from APIC, and Exhibit K – the receipt for the purchase price of the property paid for in 1983 for N61, 200.00 while DW. 4 was the Librarian attached to the Rivers State Newspaper Corporation who tendered the Nigerian Tide of 15/7/88 which was later received and marked as Exhibits M. and H. respectively before 2nd Respondent addressed the trial court.

In his judgment dated 7th October, 1988, the learned trial Chief Judge dismissed the claims in paragraph 13 (a) – (d) of the Amended Statement of Claim, holding that by virtue of Section 1 of the Abandoned Properties Decree 1979, the APIC has the right to sell every abandoned property and vest a good title in a purchaser. The learned trial Chief Judge however granted the alternative relief, to wit: N380,000.00 as market value of the property in dispute. Thus, while both the 1st and 2nd Respondents have appealed against the alternative relief, the appellant has cross-appealed against the order dismissing the reliefs claimed in paragraph 13 (a – d) of the Amended Statement of Claim.

Sequel to the foregoing, on 29th July, 1994 the Appellant brought an application before the Court below to argue fresh points of law not argued or canvassed in the trial court and to incorporate same in the Appellant’s Brief of Argument in the following terms:

“(i) To argue points of law not argued nor canvassed in the court below captioned as “Additional Grounds of Appeal” and marked as Exhibit A.