EZE V AG RIVERS STATE

EZE V AG RIVERS STATE


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON FRIDAY, 20TH JULY, 2018


Appeal No: CA/PH/292/20 4
CITATION:

Before Their Lordships:

ISAIAH OLUFEMI AKEJU, JCA
CORDELIA IFEOMA JOMBO-OFO, JCA
BITRUS GYARAZAMA SANGA, JCA


BETWEEN

OBI EZE (BY ATTORNEY EMEKA EZE)

(APPELLANT)

AND

ATTORNEY GENERAL RIVERS STATE

(RESPONDENT)


PRONOUNCEMENTS


A. ACTION
1. Locus Standi – Meaning, nature and effect of locus standi

Meaning of locus standi; effect of locus standi on jurisdiction of court and when the issue of locus standi can be raised

“I have considered the submission by learned counsel on this issue and I am in agreement with learned counsel to the respondent that the issue of whether the respondent has locus standi to commence this suit which ought to be raised in limine was not done by the Appellant. Locus standi as the name connotes is the standing to sue or competence of a party to sue. An objection to a Claimant’s locus standi attacks his competence to sue as to whether he has any legal or equitable interest to protect. The rule about the locus standi was developed primarily to protect the Courts from being used as a playground by professional litigants, or, and meddlesome interlopers, busy bodies who have no real stake in the litigation. There are two tests in determining locus standi of a person. They are: (1) The action must be justiciable; (2) There must be a dispute between the parties. See TAIWO V ADEGBORO & ORS (2011) 5 S.C. {Pt. II} 179 at 197. Another aspect of locus standi is that it focuses on the party seeking to get its complaint heard before the Court. See NYAME V F.R.N. (2010) 3 S.C. {Pt. I} 78 at 132 – 133. It is therefore late in the day for the Appellant to be raising this issue at an appellate stage. This issue is therefore incompetent and is hereby struck out.”Per SANGA, J.C.A. read in context

B. APPEAL
2. Appeal as of Right – Whether appeal against a final order/decision of Court is as of right

“The first point of objection contained in the preliminary objection of the Respondent is that the grounds of appeal involved questions of facts and mixed law and facts thus the need for leave of this Court to be sought and obtained becomes imperative. In answer to this I considered the provisions of Section 241(1) (a) of the 1999 Constitution (as amended) which provides thus: – “241-(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following: cases: – (a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance”. The decision appealed against by the Appellant is the final decision of the High Court of Rivers State sitting at first instance, therefore the appeal before this Court by the Appellant is “as of right” and no leave is required irrespective of whether the grounds of appeal are of facts or mixed law and facts. This Court held in UBA PLC V SAMBA PETROLEUM COMPANY LTD (Supra) at page 278 thus: – “By virtue of Section 241(1) of the 1999 Constitution, appeals from final decisions of the High Court to the Court of Appeal including the Federal High Court sitting at first instance, whether on points of law, mixed law and facts or on facts alone are as of right. In the instant case the Appellant’s appeal is from a final decision of the Kaduna High Court. In the circumstance leave is not required to appeal on grounds of mixed law and facts as contended by the by the respondents. The preliminary objection on this point by the Respondent is hereby discountenance by me.”Per SANGA, J.C.A. read in context

3. Grounds of Appeal – Position of the court on inelegantly drafted grounds of appeal

Attitude of Court towards inelegantly drafted ground of appeal

“I have considered the grounds 1, 2, 4 and 5 of the Grounds of Appeal on pages 336 – 341 of the record of appeal together with their particulars. I also considered the submission by learned counsel to the parties on this point. I must admit that some of the grounds and their accompanying particulars were inelegantly drafted. But that does not mean they are not fully understood by this Court or the Respondent. Once the ground of appeal disclosed the complaint of the Appellant against the decision of the Court and the Respondent is not shown to have been misled, then the appellant’s right of appeal should be upheld. When faced with an inelegantly couched ground, the Courts will always make the best they can out of same in the interest of justice. In the Supreme Court case of DAKOLO & ORS V DAKOLO & ORS (2011) 16 NWLR {Pt.1272} 22 at 58 paragraphs G – H. GALADIMA JSC held thus: – “It is settled that this Court will make the best it can out of a bad or inelegant ground or brief in the interest of justice”. The law is also trite that even where the grounds of appeal are repetitive or argumentative, it cannot bar the Appellant from ventilating his argument and the appellate Court from giving him a listening ear in the interest of justice. In DAKOLO V DAKOLO (Supra) the apex Court also held, per ADEKEYE JSC thus: – “The fact that a ground of appeal is argumentative or repetitive is not sufficient to deny the appellant his right of appeal when on the face of the ground notable issues arise for consideration. As rightly observed by the appellant, the activists approach to adjudication of matters is to avoid technicality as the principal duty of the Court is to do justice”. In the circumstances it is my holding on this point that an inelegantly framed ground of appeal or an argumentative ground of appeal will not be discountenanced by this Court if the Respondent is not misled by the said grounds of appeal. I also hold that the grounds of appeal did not contain a new point not canvassed before the trial Court.”Per SANGA, J.C.A. read in context

C. LEGAL SYSTEM
4. Judicial Precedent – Meaning and nature of the doctrine of stare decisis

What the doctrine of stare decisis entails

“Upon considering my finding in issues 1 and 2 above compared with the finding of the learned trial Judge it is obvious that he did not properly evaluate the evidence adduced before him. The clearest example is the judgment of this Court in Appeal No. CA/PH/134/89 delivered on 11/03/2004 which categorically granted all the reliefs claimed by the Appellant, thus vesting on him the ownership of the property in dispute as contained on pages 60 – 75 of the record of appeal. This judgment was not challenged by the respondent thus it still subsists as it remains the law. For the learned trial Judge to vest title of the same land in dispute to the respondent indicates that the learned trial Judge did not evaluate the evidence before him. The fact that the respondent was not a party in Appeal No. CA/PH/134/89 is immaterial because that appeal emanates from Suit No. PHC/139/83 which the respondent was a party and the subject matter is the same. The judgment in Appeal No. CA/PH/134/89 emanating from Suit No. PHC/139/83 granted ownership of the land on the appellant. The learned trial Judge has no vires to vest ownership of the same land on the respondent. The respondent was a party in the lower Court and by necessary implication is bound by the decision of this Court that heard and determined the appeal from the lower Court. In NIGERIA AGIP OIL COMPANY LIMITED V CHIEF GIFT NKWEKE & ANOR (2016) LPELR – 26060 (SC) the Apex Court, per GALADIMA JSC while pronouncing on the doctrine of stare decisis held thus: – “The position of this Court on the principle of stare decisis raised by the Appellant, has been made clear in a number of authorities of this Court, that the lower Court is bound by the decision of a higher Court. The Court will hold itself bound by its previous decision except where it is satisfied that any of its previous decision is erroneous or was reached per incuriam. See DALHATU V TURAKI (2003) 15 NWLR {Pt. 843} 310; VEEPEE IND. LTD V COCOA IND. LTD (2008) 13 NWLR {Pt. 1105} 486.”Per SANGA, J.C.A. read in context

D. STATUTORY INTERPRETATION
5. Sections 10 and 28 of the State Lands Laws of the Eastern Nigeria and Section 15(1) and (2) (A) of the High Court Law of Eastern Nigeria –

Interpretation of Sections 10 and 28 of the State Lands Laws of the Eastern Nigeria and Section 15(1) and (2)(a) of the High Court Law of Eastern Nigeria, 1963 as it relates to recovery of possession of land

“On 31st March, 1961 the then Government of Eastern Nigeria granted 40 years lease of the property in dispute to Messrs George Ezeikpe, Sunday Agwu, Anagha Ezeikpe and Agu Anagha, carrying on business in the name and style of George Ezeikpe Brothers and Sons. They in turn, with the consent of the Governor assigned the unexpired residue of the lease to the Appellant on 7th December, 1964. The Head Lease commenced from 1st January, 1959 and was registered at the then Enugu Lands Registry as No. 69 at page 69 in Volume 260 now kept at Port Harcourt Lands registry. The sublease granted the Appellant was registered as No. 36 at page 36 in Volume 380 of the Lands Registry, Enugu now kept at Port Harcourt Lands Registry. The Head Lease granted on 30th March, 1961 commenced on 1st January, 1959 and expired on 2nd January, 1999. It was never renewed by the Lessee or the sub-lessee. Thus the interest in the residue the basis of the suit filed by the Respondent on 23/09/2008, and the reliefs sought by the Claimant in paragraph 10 of the statement of claim which I quoted above. Copies of the head Lease dated 30/3/1961 which commenced on 01/01/1959 is on pages 18 – 20 of the records while the sub lease to the Appellant made on 7th December, 1964 is on pages 21-24 of the record of appeal. It would have been a simple issue of the lessor, (Rivers State Government) being entitled to the residue of the property in dispute since it was not renewed after the 40 years contained on the Head Lease. The Respondent as Claimant relied on the provision of Sections 10 and 28 of the State Lands Law Cap. 122, Laws of Eastern Nigeria 1963 which provides as follows: “10: In the absence of special provisions to the contrary in any lease under this law, all buildings and improvements on State Lands, whether erected or made by the lessee or not, shall on the determination of the lease, pass to the State without payment of compensation. Provided, however, that, in the lease, when land is leased for a term not exceeding thirty years, the lessee shall be at liberty within three months of the termination (otherwise than by forfeiture) of such lease to remove any buildings erected by him on the land leased during the currency of such lease, unless the Minister shall elect to purchase such buildings. In the event of the Minister and the lessee not agreeing as to the purchase price of such buildings, the same shall be determined by arbitration. The lessee shall make good any damage done to the land by any such removal”. Section 28 provides thus: – “28(1): When any person without right, title or lience or whose right, title or liecense has expired or been forfeited or cancelled, is in occupation of State Land, the Attorney-General, or the Principal Lands Officer, or some person appointed by the Attorney-General may enter a suit in the High Court to recover possession thereof.”

(2) : If, on the hearing of such suit the defendant does not appear, or appears but fails to establish an absolute right or title to the possession of the land, the Court shall order that the possession of the land sought to be recovered shall be given by the defendant to the plaintiff, either forthwith or on or before such day as the Court shall think fit to name, and shall issue such processes as may be necessary for carrying such order into effect”. As I stated above upon the expiry of the lease and failure to renew same by the lessee, the property automatically reverts back to the lessor, the Rivers State Government without compensation (Section 10). However if the lease does not exceed 30 years the lessee can remove any buildings erected by him on the land or the lessor can elect to purchase same. The instant lease was for 40 years so this proviso does not apply. The Respondent commenced this suit pursuant to Section 28(1) of the State Lands Law to recover possession. The crux of Appellants defence is that he is not in occupation of the property in dispute when this suit was filed for recovery by the respondent. That the Rivers State Government (Lessor) sub-leased the property in issue to one Mr. S. A. I. Ossai through a Deed of Lease dated 19th March, 1979 and registered as No. 99 at page 99 in Volume 79 of the Lands Registry Port Harcourt. This happened due to the fact that the Appellant abandoned the property during the Civil War when the Federal Troops captured Port Harcourt. The Rivers State Government categorized the property as abandoned property thus they reassigned same to Mr. Sylvester Amaechi Ifeanyi Ossai who took possession and exercised various acts of ownership including letting in tenants and collecting rents accruing from the property. The Appellant did not rest on his oars, he sued the respondent and Mr. Ossai in suit No. PHC/139/83 before High Court vide a statement of claim dated 10th February, 1984 seeking for the following reliefs: – “(a): A declaration that the purported sale of the Plaintiff’s building situate at Plot 2 Block 260 Wobo Layout Diobu known as No. 16 Oweri Road now Ikwerre Road and registered as No. 36 at page 36 in Volume 380 at the Land Registry, Enugu now kept at Port Harcourt by the Rivers State Government (1st Defendant) to the 2nd Defendant is unconstitutional and null and void”.

“(b): A declaration that the Plaintiff is entitled to the grant of Statutory Right of Occupancy of the said premises”.

“(c): A perpetual injunction restraining the 2nd Defendant by himself, his servants and/or agents from dealing in the said property”.

“(d): An account of any monies received by the defendant as rents from the tenants of the said premises and payment over to the plaintiff any monies so found”.

OR IN THE ALTERNATIVE:

“(e): The Plaintiff claims against the Defendants jointly and severally a sum of THREE HUNDRED AND EIGHTY THOUSAND NAIRA (N380,000.00) as the market value of the property situate AT Plot 2 Block 260 Wobo Layout, Port Harcourt popularly called No. 61 Owerri Road now Ikwerre Road, Port Harcourt”. In a well considered decision contained in the judgment of D. G. Douglas C.J., delivered on 7th October, 1988, trial Court held thus: – “The Plaintiff has produced evidence of the assessment of his two buildings. There is not before this Court any other evidence to the contrary. I must hold therefore that the Plaintiff is entitled to succeed in his claim in the alternative, against the defendants jointly and severally for the sum of N380,000.00 as the market value of the property situate at Plot 2 in Block 260 Wobo Layout – the subject matter of this action. The claims in paragraphs 13
(a)-(b) of the Plaintiff’s Statement of Claim are hereby dismissed”. (See pages 45-59 of the record of appeal) The Appellant appealed against the award of the alternative claim by the trial Court to this Court in Appeal No. CA/PH/134/89. In the course of hearing his counsel applied to strike out the name of the Respondent as the 2nd Respondent which was granted, thus leaving Mr. Ossai as the only Respondent who also appealed against the award of the alternative claim. This Court delivered its judgment on 11th March, 2004 wherein it held thus: –
(1) That there is merit in this appeal and it is allowed.

(2) That reliefs 13(a) – (d) of the Appellant’s statement of claim are hereby granted.

(3) That the judgment of the lower Court in relation to the award of N380,000.00 in the alternative claim is hereby set aside.

(4) That the Respondent’s appeal is dismissed.

(5) That the appellant is entitled to cost assessed at N10,000.00 against the Respondents. (See pages 60 – 76 of the record of appeal) However, the decision by this Court on 11/3/2004 in favour of the Appellant turn out to be the proverbial pyrrhic victory as it was gained at a staggering loss to the victor. He did not apply to renew the lease which
expired on 2nd January, 1999, neither did Mr. Ossai who was in possession and occupation of the property in dispute at that time. That is why the respondent commenced this suit under Sections 10 and 28 of the State Lands Law, Cap. 122, Laws of astern Nigeria 1963 to recover possession since the lease expired. I have carefully considered the Supreme Court decision in GREGORY OBI UDE V CLEMENT NWARA & ANOR (1993) LP LR- 3289 (SC) where Sections 10 and 28 of the State Lands Laws of Eastern Nigeria 1963 and Section 15 of the High Court Law of Eastern Nigeria 1963 were considered and interpreted by the apex Court. In that case the facts are similar to the instant appeal except that the original lease was for 7 years which is below 30 years provided by the proviso to Section 10 (Supra). In this appeal the lease is for 40 years but it was not renewed by the lessee or the sub-lessee. By the time this Court entered judgment in favour of the Appellant the lease has expired on 2/1/1999. It is beyond doubt that the Respondent leased the property in dispute under the Abandoned properties (Custody and Management) Edict No. 8 of 1969 to Mr. Ossai on the basis that the property fall under that category. In GODWIN NSIEGBE & ANOR V OBINNA MGBENA & ANOR (2007) LPELR – 2065 (SC) the Supreme Court defined “abandoned property” in context of Section 2 of the Abandoned Properties Edict of 1969 thus: – “According to the said Section 2, an abandoned property is any property movable or immovable belonging to a person whose home town or place of origin is not situate in Rivers State of Nigeria which in the opinion of the Military Governor or the Authority has been abandoned by the owner thereof as a result of the civil war in Nigeria or the disturbances in the country leading to it, and is at the time of making of the Edict not in the physical occupation or under the personal control of the owner”. Per OGUNTADE JSC. As I noted above the lease in issue was for 40 years and it expired on 02/01/1999 therefore the Appellant’s sub lease does not come within the proviso to Section 10 of the State Lands Law Cap. 122, Laws of Eastern Nigeria, 963. The law is trite that where a valid lease has expired without being renewed the lessee no longer has a valid interest. However in the instant suit the property was vested on the Appellant by this Court five years after the lease expired. When the Respondent leased the property to Mr. Ossai on 19/03/1979 the lease had about 10 years and Mr. Ossai took over the unexpired residue and was in possession up to 02/01/1999 when it expired. Since the Appellant lost possession during the civil war he never recovered possession up to the time the lease expired on 2nd January, 1999. So the question still begging for an answer is: What is the fate of the Appellant in regard to his claim since he was not in occupation of the property when the lease expired? Does he have remedy to pursue his right over the property in dispute? I have searched for legal authorities that can aid the Appellant but in vain. Then I noted that the Supreme Court authority of GREGORY OBI UDE V CLEMENT NWARA & ANOR (Supra) is in respect of abandoned property under the Abandoned Properties Edict No. 8 of 1969. This Court delivered its judgment in respect to the property in dispute on 11th March, 2004 in Appeal No. CA/PH/134/89 wherein it vests on the Appellant title to the said property. This Court cannot reverse that decision. The Supreme Court in UDE V NWARA (Supra) when faced with a similar dilemma where Mr. Ude (suing by his Attorney S. E. Anusionwu) sued Mr. Nwara and the Attorney-General of Rivers State before the Rivers State High Court claiming a declaration that he is the owner of a leasehold property situate at No. 2 Ekpeye Street Diodu, Port Harcourt which was sold to the 1st Respondent by the Rivers State Government as abandoned property, under the Abandoned Properties Edict of 1969. The trial Judge dismissed the Appellant’s claim for declaration of title but found in his favour his claims for trespass and injunction. The Respondent was aggrieved with the decision, so he appealed to this Court. This Court allowed the appeal and the Appellant’s claims were dismissed in its entirety. Dissatisfied with the decision of this Court, the appellant appeal to the Supreme Court. Among the issues formulated by learned counsel to the parties are: For the Appellant: – 1: Is the Court of Appeal right that on the determination of appellant’s lease, the buildings and improvements on the said land automatically belongs to the Rivers State Government and by operation of law without complying with Section 28 of the State Lands Law?

2: Is the Court of Appeal right when it said that Sections 10 and 28 of the Lands Law are not in conflict? The 1st Respondent formulated the following issues, among others: –
2: Whether the respondents can be liable in trespass when the appellant’s lease on the property has since expired by operation of Law and the 2nd defendant has since transferred his interest in the property to the 1st defendant by virtue of Exhibit ‘M’…”
3: Whether Section 10 is in conflict with Section 28(1) and (2) of the State Lands Law as to entitle the appellant to compensation for the building on the demised premises after the expiration of the lease by effluxion of time? In allowing the appeal the apex Court per NNAEMEKA-AGU JSC held as follows: – “The conclusion I feel bound to reach is that on the 16th of August, 1983, the date when the 2nd Respondent purported to have sold the land in dispute to the 1st Respondent as fee simple absolute in possession, the appellant was in possession of the land in dispute as a lessee who lease had expired but who was holding over, the purported sale to the 1st respondent was invalid. So the appellant is still in possession even though his lease which expired on 31st of January, 1971, has not been renewed”. In conclusion, my finding on this issue is that this Court in its judgment delivered on 11th March, 2004 vests title of the property in dispute to the appellant even though his lease which expired on 2nd January, 1999 has not been renewed. The Supreme Court did likewise in UDE V NWARA (Supra) when it vested title on the appellant after nullifying the sale of the property to the 1st Respondent even though his lease which expired on 31st January, 1971 has not been renewed. Therefore the learned trial Judge was not right when he reached the conclusion that the respondent is entitled to the possession of the property known as Plot 2 in Block 260 Wobo Layout Port Harcourt, Rivers State.”Per SANGA, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY SANGA, J.C.A.


This Suit No. PHC/1696/2008 was filed by the Respondent as Claimant on 23rd October, 2008 against the Appellant as Defendant via a Writ of Summons and a Statement of Claim. The Claimant seeks against the Defendant the following: –

1: A declaration that in the absence of any renewal in favour of the defendant of the 40 years lease dated 30/03/61 granted Messrs. George Ezeikpe, Sunday Agwu, Anagha Ezeikpe and Agu Anagha carrying on business in the name and style of George Ezeikpe Brothers and Sons by the government of Eastern Nigeria in respect of Plot 2 in Block 260 Wobo Layout at Port Harcourt in the then Port Harcourt Provice of Easter Nigeria, which commenced from the 01/01/59, expired on 02/01/99.

2: A declaration that upon the creation of the Rivers State from the Eastern Nigeria in 1967, the Rivers State Government automatically became the lessor of the said property, Plot 2, Block 260 Wobo, Layout and are therefore entitled to the reversionary interest therein.

3: A declaration that being the lessor the Claimant pursuant to Sections 10 and 28 of the State Lands Law Cap 122 Laws of Eastern Nigeria 1963, is entitled to apply to Court for possession of the property, the 40 years lease granted having expired.

4: An order of Court granting the Claimant possession of the said property in accordance with Sections 10 and 28 of the State Lands Law Cap 122 Laws of Eastern Nigeria, 1963.

5: A perpetual injunction restraining the defendant, his Agents, tenants or servants, from further entering or interfering with the property in issue. (page 11 of the record of appeal).

The Defendant filed a Statement of Defence on 21/11/2008 containing 18 paragraphs. (pages 28 – 31 of the Records). They also filed an Amended Statement of Defence dated 27th September, 2012 (pages 207 – 210 of the record of appeal). The Claimant filed a Reply to the Statement of Defence (pages 89 – 90 of the Records). The matter went to trial. During trial the Claimant called one witness who tendered two documents in evidence which were marked as follows: –

(1) The Original Lease Agreement granted to Messrs. George Ezeikpe, Sunday Agwu, Anagha Ezeikpe and Agu Anagha carrying on business in the name and style of George Ezikpe Brothers and Sons on 31st March, 1961. – Exhibit ‘A’.

(2) Sub Lease granted to the Defendant (Obi Eze) on 7th December, 1964 by a Deed of Lease for the unexpired residue of the Original Lease. – Exhibit ‘B’.

Copies of the two documents are on pages 18 to 24 of the record of appeal.

C.W. 1 testified that the Claimant instituted this suit praying the Court to declare that the reversionary right of possession in the leased property known as Plot 2 Block 260 Wobo Layout, Port Harcourt has matured and ought to be reversed to the interest of the Rivers State Government. That the lease was originally granted by the then Government of Eastern Nigeria to Messrs. George Ezikpe, Sunday Agwu, Anagha Ezikpe and Agu Anagha who trade under the name and style of George Ezeikpe Brothers and Sons, on the 31st March, 1961 for a period of 40 years. That the Head Lease was registered as No. 69 at page 69 in Volume 260. That on 7th December, 1964 the said Messrs George Ezeikpe, Sunday Agwu, Anagha Ezeikpe and Agu Anagha assigned the unexpired residue of the said property to the Defendant/Appellant by a Deed of Assignment Registered as No. 36 at page 36 in Volume 380 at the Lands Registry of the then Eastern Nigeria. That the interest in the subject property sought to be recovered reverted back to the Rivers State Government since 20/01/1999. That the Claimant brought this action in compliance with the statutory provisions for the recovery of the State Property subject to expired leases so as to formally takeover possession.

The Defendant testified and stated that pursuant to the assignment of the property to him, he developed the land in accordance with the requirement of the lease and leased some part of it, while he lived with his family on the other part. That he left the building during the civil war in 1967 when the Federal troops took over Port Harcourt. That the Rivers State Government categorized the property as abandoned property and illegally re-assigned the same property to one S. A. I. Ossai through a Deed of Lease dated 19/03/1979 and registered it as No. 99 in Page 99 in Volume 79. That the said Mr. Ossai continued in possession of the property in dispute and has been collecting rent in the property to date. That he sued the Claimant and Mr. Ossai before the High Court of Rivers State in Suit No. PHC/139/83 praying the Court to declare the purported sale to Mr. Ossai unconstitutional, null and void or in the alternative for Mr. Ossai and the Claimant to pay him N380,000:00. The Court granted the alternative prayer for payment of the N380,000.00.

The Defendant appealed that decision to this Court in Appeal No. CA/PH/134/89 and sought for a grant of the main reliefs. This Court found in favour of the Defendant by granting the main prayers. However the Claimant’s name was struck out at the behest of learned counsel to the Defendant as it refused to file its brief of argument or participate in the proceedings. That Mr. Ossai appealed against the decision of this Court to the Supreme Court in Appeal No. SC 122/2005, but the appeal was dismissed for want of diligent prosecution. That throughout the hearing of the suit and appeal the property remained in the possession of Mr. Ossai. That the Claimant refused to comply with the orders of this Court to restore the Defendant into the property. That the Claimant refused to change the name of Mr. S. A. I. Ossai on the property card kept at the Lands Registry to reflect the lease in favour of the Defendant inspite of the decision of this Court. The Defendant tendered the following documents in evidence: –

1. Building Lease of 19/03/1999 Registered as No. 99 page

99 Volume 79 – Exhibit ‘C’.

2. Statement of Claim in Suit No. PHC/139/83 – Exhibit ‘D’.

3. Judgment of High Court in Suit No. PHC/139/83- Exh. ‘E’.

4. Judgment of this Court in Appeal No. CA/PH/134/89– Exh. ‘F’.
5. Copy of letter dated 31/3/2004 written by counsel to the Defendant to The Registrar Deeds – Exhibit ‘G’.
6. Ruling of the Supreme Court in Appeal No. SC. 122/2005

– Exhibit ‘H’.

7. Power of Attorney issue to the Defendant – Exhibit ‘K’.

Under cross examination however the Defendant admitted that he did not renew the lease after its expiration on 2nd January, 1999, and that the Claimant was not a party in Appeal No. CA/PH/134/89 because the Claimant’s name was struck out of the appeal. He also admitted that the Claimant was not a party in Appeal No. SC. 122/2005 before the Supreme Court.

In his judgment on pages 306 – 335 of the record of appeal delivered on 25/10/2013 the learned trial Judge reviewed the evidence proffered before him and the address of counsel. He held as follows: –
“In my considered view, the 40 years lease granted to the defendant and his predecessor having expired, the claimant is entitled by the provisions of Sections 10 and 28 of the State Lands Laws to recover possession. Since the fact is established that the lease has expired and it was not renewed, claimant is entitled to the Judgment in this case as follows:…….”

The learned trial Judge then granted all the reliefs sought by the Claimants.

The Defendant was aggrieved by this decision. He filed a Notice of Appeal containing 5 grounds of appeal on 21/10/2014 which, shorn of their particulars, reads thus: –

GROUNDS OF APPEAL

1: ERROR IN LAW:

The Learned Justice of the High Court of Rivers State (sic) sitting in Port Harcourt erred in law when he erroneously misinterpreted the law and reached a conclusion that the Claimant/Respondent is entitled to possession of the property known as Plot 2 in Block 260 Wobo Layout Port Harcourt, Rivers State when the possession is not with the Defendant/Appellant, a conclusion which cannot reasonably be drawn from the facts as founded in this case.

2: ERROR IN LAW:

The Learned Justice of the High Court Rivers State (sic) sitting in Port Harcourt erred in law when it (sic) failed to appreciate that he is bound by the judgment of the Court of Appeal in Appeal No. CA/PH/134/89 in respect of the subject matter and wherein the Court ordered that the Appellant is entitled to the grant of statutory right of occupancy in the property and deviation from this order amounts to judicial rascality.

3: ERROR IN LAW:

The judgment is unreasonable unwarranted and cannot be supported having regards to the weight of evidence of the witnesses in this case.

4: ERROR IN LAW:

The Learned Justice of the High Court of Rivers State (sic) sitting in Port Harcourt erred in law when it (sic) failed to appreciate that an appeal is a continuity of an action on a cause of action (sic) and that a party who is aware of the appeal, either through service of process or not, but remain indolent and fails to participate in the appeal he is bound by the judgment of the Court of Appeal.

5: ERROR IN LAW:

The Learned Justice of the High Court of Rivers State (sic) sitting in Port Harcourt erred in law when it ( s i c ) f a i l e d t o a p p r e c i a t e t h a t t h e Claimant/Respondent has no locus to commence this suit.

The records of appeal was compiled and transmitted to this Court on 7th April, 2014 but deemed as properly compiled and transmitted on 22nd September, 2014. The Appellant’s Brief of Argument was filed on 2nd October, 2015 but deemed as properly filed and served on 22/9/2016. It was prepared by C. IKE INEGBU Esq. Learned counsel formulated 4 issues out of 5 grounds of appeal as follows: –

1: Whether the Learned Trial Judge was right when he reached a conclusion that the Claimant/ Respondent is entitled to the possession of the property known as Plot 2 in Block 260 Wobo Layout Port Harcourt Rivers State.

2: Whether the Learned Trial Judge and the Respondent are bound by the judgment of Court of Appeal in Suit (sic) No. CA/PH/134/89 in respect of the subject matter of this suit wherein the Court ordered that the Appellant is entitled to the grant of statutory right of occupancy in the property.

3: Whether the Learned Trial Judge properly evaluated the evidence adduced at the trial and gave a judgment supported by the law and evidence adduced at the trial.

4: Whether the Claimant/Respondent has locus standi to commence this suit.

The Respondent’s Brief of Argument was filed on 9th November, 2015 but deemed as properly filed and served on 8th February, 2016. It was settled by UZOR IKENGA Esq. Principal State Counsel, Ministry of Justice, Port Harcourt. Learned state counsel included a Notice of Preliminary Objection in his brief of argument. His objection is based on the following: –

1: The Appellant’ grounds of appeal do not involve questions of law alone and leave of Court was not sought before it was filed.

2: The Appellant’s grounds of appeal involve issues not delivered by the trial Court.

Learned counsel argued the preliminary objection on pages 5 to 8 paragraphs 5.0 to 5.11 of his brief. The Appellant replied the preliminary objection in the Appellant’s Reply Brief filed on 8th February, 2016.

In his submission while arguing ground one of the Notice of Preliminary Objection learned counsel to the respondent submitted that the Appellant’s grounds of appeal do not involve questions of law alone and leave of this Court was not sought and obtained before formulating issues from them. That grounds 1, 2, 4 and 5 are of fact or at best mixed facts and law. That a ground of appeal should be precise, clear, unequivocal and direct statement of the defect in the decision being attacked. Learned counsel cited the authority of METAL CONSTRUCTION (W.A. LTD) V MIGLIORE (1990) 1 NWLR {Pt. 152} 299 at 311. That the Court have power to strike out a notice of appeal when the appeal is not competent or for any other sufficient reason. Order 6 Rule 6 of this Court 2011 (Order 7 Rule 6 of the Rules of this Court, 2016). That the grounds of appeal listed above has no nexus with their particular. That in ascertaining the nature of the grounds of appeal the grounds and its particulars must be read together. Cited: –

ORAKOSIM -V- MENKITI (2001) 87 LRCN 1536 AT 1538 where the Apex Court held that: “the body of the ground is not to be considered in isolation of its particulars”. Also cited IKEM V EZIANYA (2002) 4 NWLR {Pt. 757} 245. That in NWADIKE V IBEKWE (1987) 4 NWLR {Pt. 67} 718 at 279 the Court held thus:

“A decision on the point whether a ground of appeal raises question of law alone does not depend on the label an Appellant gives to the ground in question. Such a decision involves an examination of the ground as framed together with the particulars thereof before resolving the points in issue”.

That although the appellant tagged the various grounds “error in law”, they are not grounds of law simply because they were labeled as such. That this can be deduced from the accompanying particulars of the aforementioned grounds. That aside the omnibus ground 3 of the grounds of appeal, grounds 1, 2, 4 and 5 are of facts or mixed law and facts which renders the said grounds incompetent having been filed without leave of this Court. Cited NWADIKE V IBEKWE (Supra) at page 279. Learned counsel argued that the said grounds also canvassed new issues not raised before the lower Court and cannot therefore be argued on appeal without leave. That the said grounds introduced for the first time issues such as Laches and Acquiescence, Statutory Right of Occupancy and Locus Standi which are new and outside the ambit of the suit before the lower Court. That in the particulars of these grounds the Appellant went on a “self frolic” of his own outside the judgment of the lower Court and without nexus to the grounds postulated. That in view of these offending grounds this Court is urged to strike out the said grounds 1, 2, 4, and 5. Cited: ABE V AKAAJIME (1989) 4 NWLR {Pt. 113} 95 at 97.

In replying to the preliminary objection in their reply brief, learned counsel to the Appellant submitted that ground one of the preliminary objection is a misconception of the position of the law by the respondent because Section 241(1) of the 1999 Constitution (as amended) provides that an appeal shall lie from the decision of the High Court to this Court as of right in the final decision in any civil or criminal proceedings before the High Court sitting at first instance. That the decision appealed against is the final decision of the High Court sitting at first instance therefore no leave of this Court is required. Cited: GRAND SYSTEM PETROLEUM LTD. V ACCESS BANK PLC (2015) 3 NWLR {Pt. 1446} 317; FIDELITY BANK PLC V M.T. TABORA (2009) 8 NWLR {Pt. 1142} 83; UBA PLC V SAMBA PET. CO. LTD. (2002) 16 NWLR {Pt. 793} 361; IDAKULA V ADAMU (2001) 1 NWLR {Pt.694} 322; ELENDU & ORS V EKWOABA & ORS (1995) 3 NWLR {Pt. 386} 704 and KANO TEXTILE MILLS PLC V G. & H. NIG. LTD (2002) 2 NWLR {Pt. 751} 420.

Learned counsel urged the Court to overrule ground 1 of the Preliminary Objection of the respondent.

On ground 2 of the preliminary objection, learned counsel to the appellant submitted that grounds 1, 3, 4 and 5 of their grounds of appeal are not vague or unclear as they disclose reasonable ground or complaint. That a ground of appeal will be lacking in precision or clarity only if it is inclusive, ambiguous, broad, debatable, disputable, evasive and inexact. Cited: ADEROUNMU & ANOR V OLOWU (2000) 4 NWLR {Pt. 652} 253 at 265; LAGGA V SARHUNA (2008) 16 NWLR {Pt. 1114} 427 at 471.

That all the 5 grounds of appeal on the Notice of Appeal consist of errors of law as alleged by the appellant and their particulars are clear and precise, thus they satisfied the requirements of Order 6 Rules 2(2), (3) and 3 of the Court of Appeal Rules, 2011. Cited: EJIKEME & ORS V AMAECHI & ORS (1998) 3 NWLR {Pt. 542} 456; ADUKU V FEDERAL REPUBLIC OF NIGERIA (2009) 9 NWLR {Pt. 1146} 370; UDOM V MICHELETTI & SONS LTD. (1997) 8 NWLR {Pt. 516} 187; IMONIYAME HOLDINGS LTD. V SONEB ENT. & ANOR (2002) 4 NWLR {Pt. 758} 618; and OJABO V INLAND BANK OF NIGERIA (1998) 11 NWLR {Pt. 574} 433. Learned counsel made further submissions supported with judicial authorities and urged the Court to discountenance the preliminary objection.

FINDINGS ON NOTICE OF PRELIMINARY OBJECTION:

The first point of objection contained in the preliminary objection of the Respondent is that the grounds of appeal involved questions of facts and mixed law and facts thus the need for leave of this Court to be sought and obtained becomes imperative. In answer to this I considered the provisions of Section 241(1) (a) of the 1999 Constitution (as amended) which provides thus: –

“241-(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following: cases: –

(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance”.

The decision appealed against by the Appellant is the final decision of the High Court of Rivers State sitting at first instance, therefore the appeal before this Court by the Appellant is “as of right” and no leave is required irrespective of whether the grounds of appeal are of facts or mixed law and facts. This Court held in UBA Plc. V SAMBA PETROLEUM COMPANY LTD (Supra) at page 278 thus: –
“By virtue of Section 241(1) of the 999 Constitution, appeals from final decisions of the High Court to the Court of Appeal including the Federal High Court sitting at first instance, whether on points of law, mixed law and facts or on facts alone are as of right. In the instant case the Appellant’s appeal is from a final decision of the Kaduna High Court. In the circumstance leave is not required to appeal on grounds of mixed law and facts as contended by the by the respondents”.

The preliminary objection on this point by the Respondent is hereby discountenanced by me.

The second point argued by learned counsel to the Respondent in their notice of preliminary objection is:

The grounds of appeal involved issues not delivered by the lower Court.

I have considered the grounds 1, 2, 4 and 5 of the Grounds of Appeal on pages 336 – 341 of the record of appeal together with their particulars. I also considered the submission by learned counsel to the parties on this point. I must admit that some of the grounds and their accompanying particulars were inelegantly drafted. But that does not mean they are not fully understood by this Court or the Respondent. Once the ground of appeal disclosed the complaint of the Appellant against the decision of the Court and the Respondent is not shown to have been misled, then the appellant’s right of appeal should be upheld. When faced with an inelegantly couched ground, the Courts will always make the best they can out of same in the interest of justice. In the Supreme Court case of DAKOLO & ORS V DAKOLO & ORS (2011) 16 NWLR {Pt.1272} 22 at 58 paragraphs G – H.

GALADIMA JSC held thus: –

“It is settled that this Court will make the best it can out of a bad or inelegant ground or brief in the interest of justice”.

The law is also trite that even where the grounds of appeal are repetitive or argumentative, it cannot bar the Appellant from ventilating his argument and the appellate Court from giving him a listening ear in the interest of justice. In DAKOLO V DAKOLO (Supra) the apex Court also held, per ADEKEYE JSC thus: –

“The fact that a ground of appeal is argumentative or repetitive is not sufficient to deny the appellant his right of appeal when on the face of the ground notable issues arise for consideration. As rightly observed by the appellant, the activists approach to adjudication of matters is to avoid technicality as the principal duty of the Court is to do justice”.

In the circumstances it is my holding on this point that an inelegantly framed ground of appeal or an argumentative ground of appeal will not be discountenanced by this Court if the Respondent is not misled by the said grounds of appeal. I also hold that the grounds of appeal did not contain a new point not canvassed before the trial Court.

Considering the foregoing, it is my holding that the notice of preliminary objection of the Respondent lacks merit. Same is hereby dismissed. This appeal shall be determined on its merit based on the 4 issues canvassed by the Appellant out of 5 grounds of appeal.
Issue 1 is: –

Whether the Learned Trial Judge was right when he reached a conclusion that the claimant/ respondent is entitled to the possession of the property known as Plot 2 in Block 260 Wobo Layout Port Harcourt, Rivers State.

To answer the question raised in this issue, learned counsel to the Appellant submitted that the learned trial Judge erred in law when he reached a conclusion that the respondent is entitled to the possession of the property in dispute, to wit; Plot 2 in Block 260 Wobo Layout Port Harcourt Rivers State. That this is so because the case of the Respondent before the lower Court is based on the provisions of Sections 10 and 28 of the Rivers State Lands Law Cap 122, Laws of Eastern Nigeria, 1963. Learned counsel quoted the two Sections verbatim and submitted that in interpreting the provisions of the above Sections of the Law the words used in the statute must be given effect, in other words, no words must be added, subtracted or ignored. The entire statute ought to be considered in totality and not in isolation in order to ascertain the intention of the legislature. Cited: DANTATA JNR V MOHAMMED (2012) 14 NWLR {Pt. 1319} 122; AGBAREH V MIMIRA (2008) 1 NWLR {Pt. 1071} 378 and OGAGA V UMUKORO (2011) 18 NWLR {Pt. 1279} 934.

That the learned trial Judge was in error when he misinterpreted the relevant provisions of Sections 10 and 28 of the State Lands Law (Supra) by ignoring the clear provision that stated that “When any person without right title or licence or whose right, title or licence has expired or been forfeited or cancelled IS IN OCCUPATION of the state land then the Attorney General of the State or the Principal Lands Officer may enter a suit in the High Court to recover possession”. That for the provision of the law to apply, the Appellant must have been in occupation of the property in dispute. Where he is not in occupation then Sections 10 and 28 (Supra) shall not apply. Learned counsel gave a summary of the facts that led to the property being assigned to appellant for the unexpired residue of the lease by the original lessor.

That pursuant to the assignment to him he developed the land in accordance with the terms of the lease and went into occupation. That during the Nigerian Civil War he left the property. That when the Federal Troops liberate Port Harcourt the Rivers State Government categorized the property as “Abandoned Property” and re-assigned same to one S. A. I. Ossai by Deed of Lease dated 19/03/1979 and registered as No. 99 at page 99 in Volume 79 of the Lands Registry. That the said S. A. I. Ossai continued to occupy the property and has also been collecting rents from tenants living on parts of the said property. That this fact was not countered by the Respondent thus deemed as admitted and true. Cited: DINGYADI V WAMMAKO (2008) 17 NWLR {Pt. 1116} 395. That the question of who is in occupation of the property was settled by the admission of the respondent and the evidence adduced by the appellant. That facts admitted need no proof. Cited: BARJE V GUNDUMA (2001) 13 NWLR {Pt. 731} 673 where this Court held thus: –

“An admitted fact is not a fact in issue. It is only where facts are disputed that they are said to be in issue. This is because issues are decided by and in the pleadings and pleadings deal mainly with facts”.

That the property in dispute was declared an abandoned property before same was vested on Mr. Ossai. That before property can be declared as abandoned the title holder must have lost physical occupation or possession of same. By declaring same to be abandoned property before assigning it to Mr. Ossai the Respondent acknowledged the fact that the Appellant was not in occupation or possession of same. Learned counsel cited the holding of this Court in UZOR V D. F. NIG. LTD (2010) 15 NWLR {Pt. 1217} 553, where the Court defined Abandoned Property by virtue of Section 2 of the Abandoned Properties (Custody and Management) Edict No. 8 of 1969. Cited also WARIGBELEGHA V OWERRE (2012) 3 NWLR {Pt.1288} 513.

Learned counsel continued his submission that the building lease granted to the Appellant was illegally terminated by the Rivers State Government and granted to Mr. Ossai who has been in Occupation since then. That as at that time the expired residue of the lease granted to the appellant did not expire. He only used 20 years of the lease before the grant to Mr. Ossai by the Rivers State Government. That as at 2/1/1999 when the lease expired the said Mr. Ossai was and is still in occupation of the property by sale from the Rivers State Government. That this Court had declared the sale to Mr . Ossai unconstitutional, null and void in its judgment in Appeal No. CA/PH/139/89. That the non occupation of the land by the appellant and his failure to renew the lease as at when due was as a result of the act of the respondent in divesting the ownership of the land from the appellant to Mr. Ossai. That by filing this suit claiming that the lease granted the appellant has expired and the Rivers Government automatically becomes the lessor of the property is to pray this Court to aid in perpetuating an illegality, since the said Rivers State Government had no reason whatsoever and no basis to grant to Mr. Ossai the lease of the property in the first place. Cited: UZOR V D.F. NIG. LTD (Supra) where this Court held thus: –

“After a State Government has fully divested its interest in a property, it no longer has any existing right vested in it to deal with the said property by way of further lease to another person.”

That the Rivers State Government now wishes to use the instant case as a pedestal to benefit from the entire illegality it committed against the appellant. That it wants the Court to aid it in this illegality. Cited: VINZ INT. NIG. LTD. V MOROHUNDIYA (2009) 11 NWLR {Pt. 1153} 562. That in IBRAHIM V OSUNDE (2009) 6 NWLR {Pt. 1137} 382 the Supreme Court held thus: –

“No one can take advantage of his own wrong doing. The Maxim: NULLUS COMMODUM CAPERE POTEST DE INJURIA SAU PROPRIA or EX TURPI CAUSA NON ORITU ACTIO”.

That by filing this suit the respondent wish to circumvent the purport and due execution of the judgment of this Court in Appeal No. CA/PH/134/89 and that of the Supreme Court in SC. 122/2005 wherein the property in dispute has been determined to have been illegally or unconstitutionally granted to Mr. Ossai by the Rivers State Government. That this suit is thus meant to frustrate and or circumvent the decisions reached in that case. Learned counsel submitted finally that since the appellant established an absolute right or title to the possession of the land, the Court cannot grant the reliefs claimed by the respondent. That the learned trial Judge erred in law in granting the reliefs sought by the respondent even after it has been adjudged by this Court that ownership of the property in dispute is vested on the appellant. He urged this Court to resolve this issue in favour of the appellant.

In his submission while arguing this issue learned counsel to the respondent submitted that the learned trial Judge made a correct approach to the evidence led by the parties on the expiration of the appellant’s lease without renewal before coming to the conclusion that the respondent is entitled to a reversionary interest or possession of the leased property by virtue of Sections 10 and 28 of the State Land Laws Cap. 122, Law of Eastern Nigeria 1963. Learned counsel quoted the two sections verbatim. He submitted that the 1959 Lease Agreement between the Respondent and Messrs George Ezeikpe, Sunday Agwu, Anagha Ezikpe and Agu Anagha, carrying on business in the name and style of George Ezikpe Brothers and Sons in respect of Plot 2 in Block 260 Wobo Layout, Port Harcourt, in the then Port Harcourt Province of Eastern Nigeria which commenced from the 1st of January, 1959, expired on 2nd January 1999, without renewal by the lessee. That it is not in contention that neither the lessee nor sub-lessee (Appellant) renewed the lease after its expiration on 02/01/99. That it is the finding of facts by the trial Court that on the admission by the Appellant that he did not renew the lease after it expired on the said 02/01/99.

Learned counsel submitted further that the learned trial Judge was right when he held that in the absence of renewal of the lease, the Respondent was entitled to reversionary interest on the property. That the wordings of the statute are clear and unambiguous. Cited: JOHNSON V LUFADEJU (2002) 8 NWLR {Pt. 768} 192; AKIM & ORS V THE STATE (1989) CLRN 107 at 112. That as held by the learned trial Judge Sections 10 and 28 of the State Land Laws is clear and unambiguous as it relates to the expiration of lease without renewal, which was the anchor of the Respondent’s case before the trial Court. Learned counsel urged this Court to also interprete the two Sections literally as the power of judicial review of legislation is not to add or remove from it. Cited the Supreme Court’s decision in ATTORNEY-GENERAL OF THE FEDERATION V ATIKU ABUBAKAR (2007) 10 NWLR {Pt. 1041} 1. Cited also: EKEOCHA V THE CIVIL SERVICE COMMISSION OF IMO STATE & ANOR (1981) 1 NCLR 154 at 165. That in AWOLOWO V SHAGARI & ORS (1979) NSCC at page 87 the Apex Court observed thus: –

“In the context of Nigeria, where the rate of promulgation of Decrees has been prolific during the last few years, it would be safe to adhere to the view once expressed by the late Lord Evershed, M. B., that: “The length and detail of modern legislation has undoubtedly reinforced the claim of literal construction as the only safe rule”.

Learned counsel to the respondent submitted further that the Appellant was a sub-lessee of the unexpired residue of the lease and thus do not have direct transaction with the Respondent in respect of the original lease, but with Messrs George Ezeikpe, Sunday Agwu, Anagha Ezeikpe and Agu Anagha, carrying on business in the name and style of George Ezeikpe Brothers and Sons. That Rivers State Government was not privy to the lease contract between the Appellant and the said Messrs George Ezeikpe Brothers and Sons. That the facts of this suit is similar to the case of UDE V NWARA (1993) 1 NSCC 236. That the Appellant under cross examination admitted that the lease granted to Messrs George Ezeikpe Brothers and Sons had expired. The document admitted as Exhibit ‘A’ (the 1959 lease) shows the time of expiration of the lease. That neither the original lessee nor the Appellant as sub-lessee renewed the lease. That Section 10 of State Land Law provides, inter alia, that: –

“….in any lease under this law all buildings and improvements on State Lands, whether erected or made by the lessee or not, shall on the determination of the lease pass to the State without payment of compensation”.

That the Appellant’s argument that he was not in possession of the property in dispute is “preposterous, baseless and unfounded” because he was restored into the said property by the judgment of this Court in Appeal No. CA/PH/134/89. That it follows therefore that the appellant is in both legal and constructive possession over the leased property by virtue of the said judgment of this Court. That a person may not be in actual possession of a thing, but if he has legal authority over the thing and manifests an intention to exercise dominion and control over the thing, either personally or by an agent, he is in constructive possession of it. Cited: EGHAREVBA V ORUONGHAE (2001) 11 NWLR {Pt. 724} 318; OLOWU V BUILDING STOCK LIMITED (2) (2010) 2 NWLR {Pt. 1178}. That the Appellant cannot extend the judgment of this Court in Appeal No. CA/PH/134/89 to include the issue of abandoned property that has nothing to do with the reversionary interest of the Respondent which was the basis of the suit in the lower Court. More so as the judgment of this Court in Appeal No. CA/PH/134/89 resolved the issue of abandoned property. Learned counsel urged the Court to answer issue one in the negative and resolve this issue in favour of the Respondent.

I have considered the submission by learned counsel to the Appellant on this issue in the Reply Brief wherein he reharshed his argument in his brief of argument as it pertain to the phrase in Section 28(1) of the State Land Law Cap. 122, Laws of Eastern Nigeria 1963 which said “…is in occupation of state land”. I will consider the submission in arriving at a decision on this issue.

FINDINGS ON ISSUE 1:

For emphasis I will repeat issue 1: –

Whether the Learned Trial Judge was right when he reached a conclusion that the Claimant/ Respondent is entitled to the possession of the property known as Plot 2 in Block 260 Wobo Layout Port Harcourt, Rivers State.

To answer this question I have to consider the case of the respondent before the lower Court in order to determine whether the learned trial Judge was right when he granted the respondent’s prayer by giving him possession of the property in dispute. On 31st March, 1961 the then Government of Eastern Nigeria granted 40 years lease of the property in dispute to Messrs George Ezeikpe, Sunday Agwu, Anagha Ezeikpe and Agu Anagha, carrying on business in the name and style of George Ezeikpe Brothers and Sons. They in turn, with the consent of the Governor assigned the unexpired residue of the lease to the Appellant on 7th December, 1964. The Head Lease commenced from 1st January, 1959 and was registered at the then Enugu Lands Registry as No. 69 at page 69 in Volume 260 now kept at Port Harcourt Lands registry. The sublease granted the Appellant was registered as No. 36 at page 36 in Volume 380 of the Lands Registry, Enugu now kept at Port Harcourt Lands Registry. The Head Lease granted on 30th March, 1961 commenced on 1st January, 1959 and expired on 2nd January, 1999. It was never renewed by the Lessee or the sub-lessee. Thus the interest in the residue the basis of the suit filed by the Respondent on 23/09/2008, and the reliefs sought by the Claimant in paragraph 10 of the statement of claim which I quoted above. Copies of the head Lease dated 30/3/1961 which commenced on 01/01/1959 is on pages 18 – 20 of the records while the sub lease to the Appellant made on 7th December, 1964 is on pages 21-24 of the record of appeal. It would have been a simple issue of the lessor, (Rivers State Government) being entitled to the residue of the property in dispute since it was not renewed after the 40 years contained on the Head Lease. The Respondent as Claimant relied on the provision of Sections 10 and 28 of the State Lands Law Cap. 122, Laws of Eastern Nigeria 1963 which provides as follows:

“10: In the absence of special provisions to the contrary in any lease under this law, all buildings and improvements on State Lands, whether erected or made by the lessee or not, shall on the determination of the lease, pass to the State without payment of compensation.

Provided, however, that, in the lease, when land is leased for a term not exceeding thirty years, the lessee shall be at liberty within three months of the termination (otherwise than by forfeiture) of such lease to remove any buildings erected by him on the land leased during the currency of such lease, unless the Minister shall elect to purchase such buildings. In the event of the Minister and the lessee not agreeing as to the purchase price of such buildings, the same shall be determined by arbitration. The lessee shall make good any damage done to the land by any such removal”.

Section 28 provides thus: –

“28(1): When any person without right, title or lience or whose right, title or liecense has expired or been forfeited or cancelled, is in occupation of State Land, the Attorney-General, or the Principal Lands Officer, or some person appointed by the Attorney-General may enter a suit in the High Court to recover possession thereof.”

(2): If, on the hearing of such suit the defendant does not appear, or appears but fails to establish an absolute right or title to the possession of the land, the Court shall order that the possession of the land sought to be recovered shall be given by the defendant to the plaintiff, either forthwith or on or before such day as the Court shall think fit to name, and shall issue such processes as may be necessary for carrying such order into effect”.

As I stated above upon the expiry of the lease and failure to renew same by the lessee, the property automatically reverts back to the lessor, the Rivers State Government without compensation (Section 10). However if the lease does not exceed 30 years the lessee can remove any buildings erected by him on the land or the lessor can elect to purchase same. The instant lease was for 40 years so this proviso does not apply. The Respondent commenced this suit pursuant to Section 28(1) of the State Lands Law to recover possession.

The crux of Appellants defence is that he is not in occupation of the property in dispute when this suit was filed for recovery by the respondent. That the Rivers State Government (Lessor) sub-leased the property in issue to one Mr. S. A. I. Ossai through a Deed of Lease dated 19th March, 1979 and registered as No. 99 at page 99 in Volume 79 of the Lands Registry Port Harcourt. This happened due to the fact that the Appellant abandoned the property during the Civil War when the Federal Troops captured Port Harcourt. The Rivers State Government categorized the property as abandoned property thus they reassigned same to Mr. Sylvester Amaechi Ifeanyi Ossai who took possession and exercised various acts of ownership including letting in tenants and collecting rents accruing from the property.

The Appellant did not rest on his oars, he sued the respondent and Mr. Ossai in suit No. PHC/139/83 before High Court vide a statement of claim dated 10th February, 1984 seeking for the following reliefs: –
“(a): A declaration that the purported sale of the Plaintiff’s building situate at Plot 2 Block 260 Wobo Layout Diobu known as No. 16 Oweri Road now Ikwerre Road and registered as No. 36 at page 36 in Volume 380 at the Land Registry, Enugu now kept at Port Harcourt by the Rivers State Government (1st Defendant) to the 2nd Defendant is unconstitutional and null and void”.
“(b): A declaration that the Plaintiff is entitled to the grant of Statutory Right of Occupancy of the said premises”.

“(c): A perpetual injunction restraining the 2nd Defendant by himself, his servants and/or agents from dealing in the said property”.

“(d): An account of any monies received by the defendant as rents from the tenants of the said premises and payment over to the plaintiff any monies so found”.

OR IN THE ALTERNATIVE:

“(e): The Plaintiff claims against the Defendants jointly and severally a sum of THREE HUNDRED AND EIGHTY THOUSAND NAIRA (N380,000.00) as the market value of the property situate AT Plot 2 Block 260 Wobo Layout, Port Harcourt popularly called No. 61 Owerri Road now Ikwerre Road, Port Harcourt”.

In a well considered decision contained in the judgment of D. G. Douglas C.J., delivered on 7th October, 1988, trial Court held thus: –

“The Plaintiff has produced evidence of the assessment of his two buildings. There is not before this Court any other evidence to the contrary. I must hold therefore that the Plaintiff is entitled to succeed in his claim in the alternative, against the defendants jointly and severally for the sum of N380,000.00 as the market value of the property situate at Plot 2 in Block 260 Wobo Layout – the subject matter of this action. The claims in paragraphs 13 (a)–(b) of the Plaintiff’s Statement of Claim are hereby dismissed”. (See pages 45-59 of the record of appeal)

The Appellant appealed against the award of the alternative claim by the trial Court to this Court in Appeal No. CA/PH/134/89. In the course of hearing his counsel applied to strike out the name of the Respondent as the 2nd Respondent which was granted, thus leaving Mr. Ossai as the only Respondent who also appealed against the award of the alternative claim. This Court delivered its judgment on 11th March, 2004 wherein it held thus: –

(1) That there is merit in this appeal and it is allowed.

(2) That reliefs 13(a) – (d) of the Appellant’s statement of claim are hereby granted.
(3) That the judgment of the lower Court in relation to the award of N380,000.00 in the alternative claim is hereby set aside.

(4) That the Respondent’s appeal is dismissed.

(5) That the appellant is entitled to cost assessed at N10,000.00 against the Respondents.
(See pages 60 – 76 of the record of appeal)

However, the decision by this Court on 11/3/2004 in favour of the Appellant turn out to be the proverbial pyrrhic victory as it was gained at a staggering loss to the victor. He did not apply to renew the lease which expired on 2nd January, 1999, neither did Mr. Ossai who was in possession and occupation of the property in dispute at that time. That is why the respondent commenced this suit under Sections 10 and 28 of the State Lands Law, Cap. 122, Laws of Eastern Nigeria 1963 to recover possession since the lease expired. I have carefully considered the Supreme Court decision in GREGORY OBI UDE V CLEMENT NWARA & ANOR (1993) LPELR- 3289 (SC) where Sections 10 and 28 of the State Lands Laws of Eastern Nigeria 1963 and Section 15 of the High Court Law of Eastern Nigeria 1963 were considered and interpreted by the apex Court. In that case the facts are similar to the instant appeal except that the original lease was for 7 years which is below 30 years provided by the proviso to Section 10 (Supra). In this appeal the lease is for 40 years but it was not renewed by the lessee or the sub-lessee. By the time this Court entered judgment in favour of the Appellant the lease has expired on 2/1/1999.

It is beyond doubt that the Respondent leased the property in dispute under the Abandoned properties (Custody and Management) Edict No. 8 of 1969 to Mr. Ossai on the basis that the property fall under that category. In GODWIN NSIEGBE & ANOR V OBINNA MGBEMENA & ANOR (2007) LPELR – 2065 (SC) the Supreme Court defined

“abandoned property” in context of Section 2 of the Abandoned Properties Edict of 1969 thus: –

“According to the said Section 2, an abandoned property is any property movable or immovable belonging to a person whose home town or place of origin is not situate in Rivers State of Nigeria which in the opinion of the Military Governor or the Authority has been abandoned by the owner thereof as a result of the civil war in Nigeria or the disturbances in the country leading to it, and is at the time of making of the Edict not in the physical occupation or under the personal control of the owner”. Per OGUNTADE JSC.
As I noted above the lease in issue was for 40 years and it expired on 02/01/1999 therefore the Appellant’s sub lease does not come within the proviso to Section 10 of the State Lands Law Cap. 122, Laws of Eastern Nigeria, 1963. The law is trite that where a valid lease has expired without being renewed the lessee no longer has a valid interest. However in the instant suit the property was vested on the Appellant by this Court five years after the lease expired. When the Respondent leased the property to Mr. Ossai on 19/03/1979 the lease had about 10 years and Mr. Ossai took over the unexpired residue and was in possession up to 02/01/1999 when it expired. Since the Appellant lost possession during the civil war he never recovered possession up to the time the lease expired on 2nd January, 1999.

So the question still begging for an answer is: What is the fate of the Appellant in regard to his claim since he was not in occupation of the property when the lease expired? Does he have remedy to pursue his right over the property in dispute? I have searched for legal authorities that can aid the Appellant but in vain. Then I noted that the Supreme Court authority of GREGORY OBI UDE V CLEMENT NWARA & ANOR (Supra) is in respect of abandoned property under the Abandoned Properties Edict No. 8 of 1969. This Court delivered its judgment in respect to the property in dispute on 11th March, 2004 in Appeal No. CA/PH/134/89 wherein it vests on the Appellant title to the said property. This Court cannot reverse that decision.

The Supreme Court in UDE V NWARA (Supra) when faced with a similar dilemma where Mr. Ude (suing by his Attorney S. E. Anusionwu) sued Mr. Nwara and the Attorney-General of Rivers State before the Rivers State High Court claiming a declaration that he is the owner of a leasehold property situate at No. 2 Ekpeye Street Diodu, Port Harcourt which was sold to the 1st Respondent by the Rivers State Government as abandoned property, under the Abandoned Properties Edict of 1969. The trial Judge dismissed the Appellant’s claim for declaration of title but found in his favour his claims for trespass and injunction. The Respondent was aggrieved with the decision, so he appealed to this Court. This Court allowed the appeal and the Appellant’s claims were dismissed in its entirety. Dissatisfied with the decision of this Court, the appellant appeal to the Supreme Court. Among the issues formulated by learned counsel to the parties are: For the Appellant: –

1: Is the Court of Appeal right that on the determination of appellant’s lease, the buildings and improvements on the said land automatically belongs to the Rivers State Government and by operation of law without complying with Section 28 of the State Lands Law?

2: Is the Court of Appeal right when it said that Sections 10 and 28 of the Lands Law are not in conflict?

The 1st Respondent formulated the following issues, among others: –

2: Whether the respondents can be liable in trespass when the appellant’s lease on the property has since expired by operation of Law and the 2nd defendant has since transferred his interest in the property to the 1st defendant by virtue of Exhibit ‘M’…”

3: Whether Section 10 is in conflict with Section 28(1) and (2) of the State Lands Law as to entitle the appellant to compensation for the building on the demised premises after the expiration of the lease by effluxion of time?

In allowing the appeal the apex Court per NNAEMEKA-AGU JSC held as follows: –

“The conclusion I feel bound to reach is that on the 16th of August, 1983, the date when the 2nd Respondent purported to have sold the land in dispute to the 1st Respondent as fee simple absolute in possession, the appellant was in possession of the land in dispute as a lessee who lease had expired but who was holding over, the purported sale to the 1st respondent was invalid. So the appellant is still in possession even though his lease which expired on 31st of January, 1971, has not been renewed”.

In conclusion, my finding on this issue is that this Court in its judgment delivered on 11th March, 2004 vests title of the property in dispute to the appellant even though his lease which expired on 2nd January, 1999 has not been renewed. The Supreme Court did likewise in UDE V NWARA (Supra) when it vested title on the appellant after nullifying the sale of the property to the 1st Respondent even though his lease which expired on 31st January, 1971 has not been renewed. Therefore the learned trial Judge was not right when he reached the conclusion that the respondent is entitled to the possession of the property known as Plot 2 in Block 260 Wobo Layout Port Harcourt, Rivers State. This issue is resolved in favour of the Appellant.

Issue 2 is:

Whether the Learned Trial Judge and the respondent are bound by the judgment of the Court of Appeal in Suit No. CA/PH/134/89 in respect of the subject matter of this suit wherein the Court ordered that the appellant is entitled to the grant of statutory right of occupancy in the property.

I have already pronounced on the judgment of this Court in Appeal No. CA/PH/134/89 delivered on 11/3/2004 which is binding not only on the trial Court and the respondent but on this Court also by virtue of the doctrine of stare decisis, until set aside by the apex Court. See CLEMENT V IWUANYANWU (1989) 3 NWLR {Pt. 107} 166 at 54;

CHEDI V A.G., FEDERATION (2008) 1 NWLR {Pt. 1067} 183. The learned law Lord M. E. AKPIROROH JCA while delivering the lead judgment held thus: –

“In the present case, there is no evidence led or any document tendered by the respondent in the Court below to show that APIC sold the property in dispute to the respondent so as to fall within Section 1 of the Abandoned Properties Decree 1979. Exhibit ‘F’ relied on for the purported sale of the property by APIC to the respondent is infact a sale by the Rivers State Government of the property to the respondent. It is therefore my view that the respondent having failed to prove that the property in dispute was sold to him by APIC, Section 1 of the Abandoned Properties Decree 1979 is inapplicable to deprive the learned trial Chief Judge jurisdiction to entertain the claims of the appellant in Paragraph 3(a) – (d) in his Statement of Claim. If the learned trial Chief Judge has properly evaluated the documents tendered before him, he could have come to the irresistible conclusion that Section 1 of the Abandoned Properties Decree 1979 is inapplicable and he has jurisdiction to entertain the appellant’s claim. I think this is a proper case for this Court to evaluate the documentary evidence tendered in the Court below and grant the reliefs claimed by the appellant in paragraphs 13(a) – (d) of his statement of claim since the purported sale of his property by the Rivers State Government to the respondent is null and void. There is merit in this appeal and it is allowed. The judgment of the lower Court in relation to the award of N380,000 in the alternative claim is hereby set aside. The respondent’s appeal is dismissed”. (pages 74 – 75 of the record of appeal).

This issue is also resolved in favour of the appellant.

Issue 3 is:

Whether the Learned Trial Judge properly evaluated the evidence adduced at the trial and gave a judgment supported by the law and evidence adduced at the trial.

Upon considering my finding in issues 1 and 2 above compared with the finding of the learned trial Judge it is obvious that he did not properly evaluate the evidence adduced before him. The clearest example is the judgment of this Court in Appeal No. CA/PH/134/89 delivered on 11/03/2004 which categorically granted all the reliefs claimed by the Appellant, thus vesting on him the ownership of the property in dispute as contained on pages 60 – 75 of the record of appeal.

This judgment was not challenged by the respondent thus it still subsists as it remains the law. For the learned trial Judge to vest title of the same land in dispute to the respondent indicates that the learned trial Judge did not evaluate the evidence before him. The fact that the respondent was not a party in Appeal No. CA/PH/134/89 is immaterial because that appeal emanates from Suit No. PHC/139/83 which the respondent was a party and the subject matter is the same. The judgment in Appeal No. CA/PH/134/89 emanating from Suit No. PHC/139/83 granted ownership of the land on the appellant. The learned trial Judge has no vires to vest ownership of the same land on the respondent. The respondent was a party in the lower Court and by necessary implication is bound by the decision of this Court that heard and determined the appeal from the lower Court.

In NIGERIA AGIP OIL COMPANY LIMITED V CHIEF GIFT NKWEKE & ANOR (2016) LPELR – 26060 (SC) the Apex Court, per GALADIMA JSC while pronouncing on the doctrine of stare decisis held thus: –

“The position of this Court on the principle of stare decisis raised by the Appellant, has been made clear in a number of authorities of this Court, that the lower Court is bound by the decision of a higher Court. The Court will hold itself bound by its previous decision except where it is satisfied that any of its previous decision is erroneous or was reached per incuriam. See DALHATU V TURAKI (2003) 15 NWLR {Pt. 843} 310; VEEPEE IND. LTD V COCOA IND. LTD (2008) 13 NWLR {Pt. 1105} 486”.

This issue is also resolved in favour of the appellant.

Issue 4 is:

Whether the claimant/respondent has locus standi to commence this suit.

I have considered the submission by learned counsel on this issue and I am in agreement with learned counsel to the respondent that the issue of whether the respondent has locus standi to commence this suit which ought to be raised in limine was not done by the Appellant. Locus standi as the name connotes is the standing to sue or competence of a party to sue. An objection to a Claimant’s locus standi attacks his competence to sue as to whether he has any legal or equitable interest to protect. The rule about the locus standi was developed primwobarily to protect the Courts from being used as a playground by professional litigants, or, and meddlesome interlopers, busy bodies who have no real stake in the litigation. There are two tests in determining locus standi of a person. They are: (1) The action must be justiciable; (2) There must be a dispute between the parties. See TAIWO V ADEGBORO & ORS (2011) 5 S.C. {Pt. II} 179 at 197. Another aspect of locus standi is that it focuses on the party seeking to get its complaint heard before the Court. See NYAME V F.R.N. (2010) 3 S.C. {Pt. I} 78 at 132 – 133 . It is therefore late in the day for the Appellant to be raising this issue at an appellate stage. This issue is therefore incompetent and is hereby struck out.

Before I conclude this judgment I feel I have to make pronouncement on the issue 2 formulated by the respondent to wit;

Whether by striking out the name of the Respondent as a party the Court of Appeal, in Appeal No. CA/PH/134/89, on the application of the Appellant, the Respondent is bound by the Judgment of the Court and same not touching on the Respondent’s reversionary interest which was the main plank of the Respondent’s case at the lower Court.

I have already pronounced on the first part of this issue (whether the respondent is bound by the judgment of this Court) under issues 1 and 3 above particularly under the issue of stare decisis. The Respondent, I pronounced above, was a party in the suit that gave rise to this appeal. He was the Claimant in the Suit No. PHC/1696/2008. I have narrated his claims as contained in the statement of claim on page 11 of the Records above. However for emphasis I will repeat the second and third claims which are as follows: –

2: A declaration that upon the creation of Rivers State from the Eastern Nigeria in 1967, the Rivers State Government automatically became the lessor of the said property, Plot 2 in Block 260 Wobo Layout and therefore entitled to the reversionary interest therein.

3: A declaration that being the lessor, the Claimant pursuant to Sections 10 and 28 of the State Land Laws Cap. 122 Laws of Eastern Nigeria 1963, is entitled to apply to Court for possession of the property, the 40 years lease granted, having expired.

Claim number 2 was dealt with under issue 1 above when I pronounced that this Court in Appeal No. CA/PH/134/89 decided in its judgment to and did nullified the order issued in favour of the respondent as the lessor of the property in dispute. I also cited and relied on the decision of the Supreme Court in UDE V NWARA & ANOR (Supra) invalidating the sale of the land in dispute by the Respondent to Mr. Nwara. Thus this Court nullified the transfer of the property in dispute to Mr. Ossai by the Respondent on 19th March, 1979 and granted same to the Appellant in Appeal No. CA/PH/134/89. Therefore the property in dispute belongs to the Appellant who is the lessor by virtue of the said judgment. Since the Appellant is the lessor the reversionary interest cannot be vested on the Respondent.

The third claim by the Respondent is that because he is the lessor pursuant to Sections 10 and 28 of the State Lands Law Cap. 122, Laws of Eastern Nigeria 1963 he is entitled to apply to the lower Court for possession of the property in dispute. This claim also cannot be granted because as I said above this Court nullified the transfer of the property by the Respondent to Mr. Ossai and held that “the purported sale of his (Appellant’s) property by the Rivers State Government to the Respondent (Mr. Ossai) is null and void”. (page 75 of the Records). Therefore the Respondent is not entitled to apply to Court for possession of the property in dispute. The decision by this Court still stands and the respondent is bound by it unless successfully challenged before the Supreme Court. I therefore resolve issue 2 formulated by the respondent in his brief of argument in favour of the Appellant.

Upon pronouncing on all the issues canvassed by the parties in this appeal it is the judgment of this Court that this appeal is meritorious and it is hereby allowed. The decision of the trial Court in Suit No. PH /1696/2008 delivered on 25th October, 2013 is hereby set aside. There shall be no order as to cost.

AKEJU, J.C.A.

I read the Judgment of my learned brother, BITRUS GYARAZAMA SANGA JCA before it was delivered. There is merit in the appeal and I allow it. I abide by the consequential order.

JOMBO-OFO, J.C.A.

I read in draft the judgment delivered by my learned brother Bitrus Gyarazama Sanga, JCA. I agree with the sound reasoning and conclusion of my respected learned brother.

This appeal obviously has merit and should be allowed. The decision of the trial Court in suit No. PHC/1696/2008 delivered on October, 2013 is thus set aside by me also. I make no order as to costs.

Appearances:

C. I. Inegbu, Esq. with him, C. O. Ache, Esq. For Appellant(s)

U. Ikenga, Esq. (PSC R/S MOJ) with him, D.U. Nwamara, Esq. For Respondent(s)