Victor Manyo Ndoma-egba V. Nnameke Chikwukeluo Chukwuogor & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C.

The High Court, Calabar, in a considered judgment, dismissed the plaintiff’s claim on 7 December, 1992. On 11 December, 1997, the Court of Appeal, Enugu Division, by majority decision, reversed that judgment and granted the reliefs claimed by the plaintiff. It all started when the plaintiff’s landed properties at Ikom in Cross River State were sold under the label of “abandoned properties.” The evidence that emerged was that the arrangement to sell the properties was made in 1978 while the plaintiff was present and was protesting that his said properties were not abandoned. He therefore, brought this action in October, 1980 claiming the following reliefs:

“1. A declaration that the two deeds of lease in respect of two adjacent pieces of land at the junction of Ikom- Obudu Road and Abakaliki-Mamfe Road, popularly known as Four Corners, Ikom, Cross River State, made in each case between Chief Emmanuel Nkang Abang, Chief Oga Assima,and Chief Ofu for themselves and on behalf of the people of Etayip quarter of Ikom town and the plaintiff, and dated, in each case, the 8th day of June, 1959, and registered respectively, as No. 16 at page 16 in Volume 48, and as No. 17 at page 17 in Volume 48, of the register of Deeds formerly kept in the Lands Registry in the office at Enugu but now kept in the Lands Registry in the office at Calabar, are existing leases and have not been invalidated despite the operation of the Deserted Property (Control and Management) (South-Eastern State) Edict, 1970;

2. A declaration that the plaintiff by reason of these two leases, aforesaid, is the person entitled to the grant of a statutory right of occupancy to the lands comprised in the two leases to the extent of his leasehold interest;
3. A declaration that the lands comprised in the two deeds of lease, aforesaid, were never abandoned or deserted by the Etayip people, the owners of those lands at all material times, and, therefore, the lands were outside the purview of all laws, rules and regulations relating to abandoned or deserted property, and, therefore, can never be sold as abandoned or deserted property, and any purported sale of the said lands, or any part thereof, by any person or persons other than the Etayip people is null and void and of no effect;
4. An injunction restraining the defendants, their servants or agents, from interfering with the plaintiff’s right to the possession of the lands comprised in the said two deeds of lease;
5. An injunction:

(a) restraining the 2nd, 3rd and 4th defendants, each and everyone of them, from applying, or further prosecuting any application, for a grant of the statutory right of occupancy to the said lands comprised in the said two leases, either for themselves or for anybody else;

(b) restraining the government of the Cross River State of Nigeria from treating or granting, any such application for a grant of the customary right of occupancy to the 2nd, 3rd and 4th defendants, or any of them, or anybody else through them.”

I consider it necessary to state more facts of the case very briefly. The plaintiff, a former civil servant and an Ibo man, lived in Ikom before the Nigerian Civil war which started in May, 1967. He acquired by lease from the natives of Etayip in Ikom two parcels of land known as plots 127 and 128. They were covered by deeds of lease dated 8 June, 1959 and registered as No. 16 at page 16 in volume 48 and No. 17 at page 17 in volume 48 respectively in the lands registry office in Calabar. He developed the plots by erecting a number of houses thereon. He became a trader in farm produce after he resigned in 1956 from the post of assistant conservator of forests. He said he left Ikom on 11 August, 1967 for Agbani on a business trip with a view to returning the following day. But on his way back he found that the bridge at Yahe had been blown off as a result of war activities. He could not return to Ikom until March, 1970 after the cessation of war in January of that year. In the meantime, the then South-Eastern State government promulgated the Deserted Property (Control and Management) (South-Eastern State) Edict No. 10 of 1970. Section 3 of the said Edict provided thus:

“For the purpose of this Edict, every movable or immovable property within the State held or reputed to be held in any estate, right or interest by a person of non-South-Eastern State origin who fled or remained away from the said property at or following the outbreak of the late rebellion is deemed to be deserted and is hereinafter referred to as ‘deserted property.’”

In coming to the conclusion that the plaintiff was caught by the above-stated provision of the Edict No. 10 of 1970, the learned trial Judge, Ecoma C.J, observed thus:

“For plaintiff’s statement in his statement of claim also his testimony in court is that he left Ikom for Agbani in order to check his produce store and had hoped to return to Ikom on the following day. He said he could not return because the Yahe bridge was blown off. This was in 1967. He did not return to Ikom until the civil war ended in 1970. This is a substantial evidence for me to hold that he ‘remained away’ from Ikom and from the property and that he is a person of non-South-Eastern State origin.”

The learned Judge, following from this conclusion, later held that as soon as the plaintiff’s properties were taken into custody by the designated Custodian under Edict No. 10 of 1970, they became abandoned properties. But the Court of Appeal, although agreeing that the plaintiff was “physically not in touch with the properties,” held that he did not desert them, per Tobi, JCA. The court allowed the appeal against the judgment of Ecoma, C.J.

As a result of that holding and others related to it, leading to the judgment of the trial court being set aside, the 2nd defendant (now appellant) has appealed against the judgment of the court below and raised the following issues for determination:

“(i) Whether the properties identified as ICC 127 and 128 were abandoned properties within the contemplation and operation of Edict No. 10 of 1970.

(ii) Whether the transactions between the Abandoned Properties Implementation Committee and the appellant were secured and assured by the Abandoned Properties Decree No. 90 of 1979 now Abandoned Properties Act, Cap 1, Laws of the Federation, 1990.

(iii) Whether the 1st respondent’s suit at the trial court was competent.”