WHETHER A PERSON IS AT LIBERTY TO GIVE OUT HIS PROPERTIES AS HE PLEASES

CASE TITLE: ULEGEDE v. MBAPUUN (2021) LPELR-54205(CA)JUDGMENT DATE: 18TH MAY, 2021

PRACTICE AREA: LAND LAW.

LEAD JUDGMENT: YARGATA BYENCHIT NIMPAR, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Declaration of Title to Land.

FACTS

This Appeal is against the decision of the High Court of Justice, Benue State sitting in Makurdi delivered by HON. JUSTICE E. N. KPOJIME on the 30th May, 2014 wherein the trial Court dismissed the case of the Appellant on the grounds that he failed to prove his case and struck out the counterclaim of the Respondent.

The Appellant bought a property known as Plot No. 1666 at No. 28 Inikpi Street, High Level, Makurdi from one Terese Mbapuun by a deed of conveyance dated 1st August, 2006. The assignor was given the property as a gift from his father in his life time before the father died intestate and the assignor later extended the Letter of Administration to include the property sold to the Appellant. The gift by the father was not through a gift deed and so it was not registered. There were 3 initial Defendants who allegedly interfered with Appellant’s right of ownership claiming that the property was not allocated to the assignor by elders of the larger family who shared the deceased’s estate to his children. One of the initial Defendants died in the course of trial and the second one went underground so their names were struck out of the suit, thus, leaving the present Respondent. The challenge and interference by all the initial Defendants led to the filing of the suit where the Appellant claimed various declarations and damages.

After hearing and adoption of Counsel’s address and consideration, the trial Court struck out the counterclaim and dismissed the case of the Appellant, hence this appeal.

ISSUES FOR DETERMINATION

The appeal was determined on the following issues:

1. Whether the counter claim of the Respondent at the trial Court is competent and the trial Court has jurisdiction to entertain the same in the circumstances of this case.

2. Whether Exhibit 14A (1) gave the property, plot No. 1666 (a three-bedroom flat and a boys quarters), at No. 28, Inikpi Street, High level, Makurdi, Benue State to the Respondent.

3. Whether there is any evidence before the trial Court to support the holding of the learned trial Judge that property in plot No. 1666 (a three-bedroom flat and a boys quarters) at No. 28 Inikpi Street High Level Makurdi, Benue State was given to Respondent in the purported distribution of the properties of late Timothy Teryima Mbapuun carried out on 29th December, 2001 by the elders of the family including DW2.

4. Whether the Appellant established his case to be entitled to the reliefs sought from the Court.

5. Whether the learned Judge was right to have struck out the counterclaim rather than dismiss the counter claim in the circumstances of the case.

6. Whether the learned trial Judge was right to have set aside the assignment of property, plot No. 1666, 28 Inikpi Street, High Level, Makurdi, Benue State to the Appellant in the circumstances of case.

DECISION/HELD

The appeal was found meritorious and was allowed. The judgment of the trial Court was set aside.

RATIOS:

• LAND LAW- GIFT OF LAND: Whether a person is at liberty to give out his properties as he pleases
• EQUITY- ORDER OF PRIORITY IN EQUITY: General rule of equity with regards to the issue of priority
• DAMAGES- SPECIAL DAMAGES: Whether a claim for special damages must be specifically pleaded and strictly proved
• PRACTICE AND PROCEDURE- ABUSE OF COURT/JUDICIAL PROCESS(ES): Whether a counter-claim which seeks the same reliefs in a suit that was struck out by the Court amounts to an abuse of Court process