CHIEF P. T. S. TENDE & ORS v. ATTORNEY-GENERAL OF THE FEDERATION & ORS
(1988) LCN/0042(CA)
In The Court of Appeal of Nigeria
Monday, the 8th day of February, 1988
Case Number: CA/E/185/86
RATIO
LAND LAW: WHEN DECLARATION OF TITLE TO LAND WILL BE IN FAVOUR OF A PLAINTIFF
I should like to adopt with respect the opinion of Oputa J.S.C. as expressed recently in Alhaji Isiaka Dosunmu v. Beatrice Adesomo Joto (1987) 4 NWLR 297 (pt.65) at page 312 that: “No one sues for declaration of title in vacuo or for the fun of it. There must be some denial of the plaintiffs title, some interference with that title by a defendant before there can be a suit asking the court to make a declaration in favour of the plaintiff. PER OWOLABI KOLAWOLE, J.C.A.
JUSTICES:
SYLVESTER UMARU ONU Justice of The Court of Appeal of Nigeria
OWOLABI KOLAWOLE Justice of The Court of Appeal of Nigeria
BRAIMAH AMEN OMUSUN Justice of The Court of Appeal of Nigeria
Between
- CHIEF P. T. S. TENDE
2. CHIEF D. S. IMONABERE
3. CHIEF I. T. ANGU
4. CHIEF G. T. I. OFIAMANI
5. MR. M. T. IYAMA
6. MR. M. ALEGE
(Suing for themselves and behalf of the Ogu people of Okrika Community) – Appellant(s)
AND
- ATTORNEY-GENERAL OF THE FEDERATION
2. FEDERAL MINISTER OF TRANSPORT
3. ATTORNEY-GENERAL OF THE RIVERS STATE – Respondent(s)
OWOLABI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): The controversy which the Appellants have brought to this Court is whether the Respondents are entitled to name the Port Complex built by the Federal Government in the Rivers State within a large piece of land which originally belonged to OGU community (as occupiers) as Federal Ocean Terminal, Port Harcourt.
The land upon which the Port complex was built was acquired by the Rivers State Government in 1974 for and on behalf of the Federal Government. The land in question was said to belong originally to the Ogu Community represented by the plaintiffs who are the present Appellants and the Onne Community. In Suit No.PHC/166/77 the Rivers State High Court on 9 June 1977 found that the Ogu community were the actual possessors of the land in question and the inhabitants thereon. They were dispossessed by the government acquisition and were therefore entitled to two thirds of the compensation payable for the acquisition by the Rivers State Government. The Onne Community were paid one-third compensation as the landowners.
After the process of acquisition the Federal Government proceeded to build a Port complex on the land. The Port was first to be called and known as “Onne Port” as a result of a decision of the Federal Executive Council Meeting held sometime in 1979.The foundation laying ceremony of the Port complex was to be performed on 1 December 1980. On 28 November 1980 upon the application made by the people of Ogu in Okrika Local Government Council in Rivers State, the Lagos High Court restrained the Minister of Transport from performing the foundation laying ceremony fixed for 1st December 1980.
The Ogu community thereafter made representations to the Minister of Transport to change the name of the Port from “Onne Port” to “Ogu Port”. The port was subsequently renamed “Ogu Port”. In reaction to the change of name of the Port to “Ogu Port” the Onne community purported to withdraw its consent to the acquisition of the land at Onne for the same project and disrupted work on the site of the port.
As a result of this incident series of meetings were held, one on 6 February 1981 and another on 19 June 1981. Both meetings were attended by representatives of Ogu and Onne communities. The minutes of meeting of 6th February 1981 is Exhibit “H”. Among the agreements reached were:
(1) That the name of the project should, for the time being, be neither Onne nor Ogu Ocean Terminal. It should temporarily be called Federal Ocean Terminal Project, Rivers State. All documents, sign-boards and correspondences should reflect this change.
(2) The Rivers State Governor should summon a meeting of the two communities with a view to finding an acceptable name for the Project.
At the meeting of 19 June, 1981 at Government House, Port Harcourt, attended by the representatives of the two communities, the Governor of Rivers State and the Minister of Transport, a communique signed by the two parties was issued. It was agreed that:
“(1) A meeting of the Chiefs and Elders of the two communities should, as soon as possible, be held to agree on a permanent name for the Port.
(2) A decision on this (meeting) should be communicated jointly by both parties to His Excellency the Governor of the Rivers State and the Honourable Minister of Transport within the next two months, that is, by the 20th of August, 1981.
(3) If by the 20th of August, 1981 both sides do not jointly agree on a new name, the Federal Ocean Terminal shall be confirmed as the permanent name by the Federal Government.”
This communique is Exhibit “J”. The two communities of Ogu and Onne did not take the steps indicated in (1) and (2) above and consequently the Permanent Secretary, Federal Ministry of Transport, Ports Division, wrote on 19th November, 1981 to the Secretary to the Government of the Federation indicating that in the light of the failure of the communities to take advantage of the agreements reached at the meetings of 6 February 1981 and 19 June 1981 the Rivers State Government had recommended that the Federal Government should confirm the name of the Port as “Federal Ocean Terminal, Port Harcourt”.
The letter is Exhibit “K”. The minutes, the communique and the letter were pleaded in the amended statement of defence of the 1st and 2nd defendants in paragraphs 16, 17, 18, 19, 20 and 21 thereof.
In consequence of the confirmation of the name of the Port Complex as “Federal Ocean Terminal, Port Harcourt” the Appellants instituted an action at the Rivers State High Court wherein they claimed:
(1) A declaration that the piece or parcel of land on which the Federal Government of Nigeria built a Port complex in Ogu of Okrika Community of the Rivers State belonged to the Ogu people of Okrika before it was acquired by Rivers State Government Notice No.577 published in the Rivers State of Nigeria Official Gazette No.48 Volume 6 of 21st November, 1974.
(2) An order directing the 1st and 2nd defendants that pursuant to the agreements reached with the plaintiffs
(a) during negotiations for the payment of compensation on the acquisition of the said land, and
(b) in January 1981, that the Port Complex built on that land be named “Ogu Port”.
(3) A perpetual injunction restraining the defendants, their servants, agents and privies from naming or calling or from continuing to name or call the Port Complex any name other than “OGU PORT”.
In a judgment delivered on 30 September 1985 the learned trial Judge Graham Douglas, CJ dismissed the Appellants’ claim. The Appellants are dissatisfied. They filed 6 grounds of appeal at pages 233 to 238 of the record of appeal.
The parties filed their respective briefs. In the Appellants’ brief eight issues have been formulated for determination but it seems to me that the issues formulated by the first and second Respondents adequately summarized the grounds of appeal filed by the Appellants as well as the issues formulated in the Appellants’ brief. These questions for determination as formulated in the brief filed on behalf of the first and second Respondents are:
(1) What is the legal effect of Government acquisition of land on the rights of the land owners and persons having interest in the land?
(2) Do the Appellants have any justifiable legal right in the choice of name of a government institution such as the Federal Ocean Terminal by the Government?
(3) Was the court below wrong in refusing to grant plaintiffs’ claim that the land on which the Federal Ocean Terminal in the Rivers State was constructed belonged to the Ogu people of Okrika before it was acquired by Government?
Let me pause here to consider the claim for declaration that the land upon which the Port Complex was built in the Rivers State belonged to the Ogu people of Okrika before it was acquired by the Rivers State Government Notice No.577 published in the Rivers State of Nigeria Official Gazette No.48 volume 6 of 21st November, 1974. The Appellants pleaded the acquisition in paragraphs 11 and 12 of the statement of claim and the first and second Respondents admitted the facts of the acquisition in paragraphs 2 and 3 of their amended statement of defence dated 1st June, 1984. In paragraph 23(iii) of the said statement of defence the Respondents averred as follows:
“The piece or parcel of land in question having been compulsorily acquired by the Government under the law, any interest which the plaintiffs had therein is extinguished and the plaintiffs are only to claim for compensation.”
What is the effect of this acquisition on the claim for declaration that the land in question belonged to the Appellants? What is the effect of a declaration that title was, in some distant past, vested in the Appellants? As at the time of the institution of the action on 14 December, 1981, the Appellants have been completely divested of any right, title or interest over the area upon which the Port Complex was built. Is it therefore equitable that an empty declaration be made in favour of the Appellants without any right, title or interest accompanying such declaration?
I should like to adopt with respect the opinion of Oputa J.S.C. as expressed recently in Alhaji Isiaka Dosunmu v. Beatrice Adesomo Joto (1987) 4 NWLR 297 (pt.65) at page 312 that:
“No one sues for declaration of title in vacuo or for the fun of it. There must be some denial of the plaintiffs title, some interference with that title by a defendant before there can be a suit asking the court to make a declaration in favour of the plaintiff.”
In the present case on appeal, there is no longer any title in the Appellant because they themselves admitted that the Respondents have acquired the land; and have entered into possession thereof and have erected the Port Complex thereon with the knowledge and consent of the occupants and the land owners. There can therefore be no interference with the Appellants’ title which by acquiescence is now deemed to be vested in the Respondents. What then is the purpose of the suit for a declaration?
The Appellants did not plead in their statement of claim any interference with the Appellants’ right. Indeed, they have no further right over the land upon which the Port Complex was built. Their right thereon has been completely extinguished.
The Appellants claim to a declaration that the land belonged to them can be likened to the owner of land who had conveyed the parcel of land to a purchaser and who still, after having (been) divested himself of all his rights thereof, instituted action against the purchaser that the property belonged to him. In Karimu v. Fajube (1968) NMLR 151 where the Plaintiff instituted an action against the Defendant for declaration of title to land, the Defendant contended that the land over which the plaintiff sought declaration included land already conveyed to third parties. For the Plaintiff it was explained that those portions were included only for the purpose of proving acts of ownership. It was held that the declaration affected the parties in the case and did not affect others, the third parties, and so it should stand. In other words, were the Plaintiff to have instituted action against a Defendant to whom he had conveyed land, an action for declaration against that Defendant would have been incompetent.
The Appellants in the present appeal are not contesting the compulsory acquisition of the land upon which the Port Complex was built by the Rivers State Government on behalf of the Federal Government of Nigeria. Indeed, the Appellants’ claim for a declaration postulates that the land belonged to them before it was acquired. That implies that after acquisition the Appellants no longer claims any interest in the property. To that extent the present case is distinguishable from the case of J. B. Atunrase & ors. v. Federal Commissioner for Works and Housing (1975) 1 All NLR (Pt.1) page 331 in which the Supreme Court held that until Government has obtained a land Certificate in respect of the land purported to have been acquired by it, no title passed to the Federal Government by the mere issuing of the acquisition notice.
In the Atunrase case, the dispute was as to who was entitled to compensation for land acquired by Government at Yaba, Lagos between the Oloto Chieftaincy family and Atunrase, the Appellant. The Oloto Chieftaincy family had, prior to the acquisition, conveyed the land to Atunrase who had paid for the land. The Oloto Chieftaincy family had contended that from the date of the notice of acquisition (December 22, 1962) the property had become vested in the Federal Government by virtue of the Acquisition Notice of that date. The High Court accepted that argument and held that Oloto Chieftaincy family could not convey to Atunrase at the time the family did because the land in respect of which Government notice of acquisition had been issued ipso facto became vested in the Government from the date of the notice of acquisition, consequently the Oloto Chieftaincy family was adjudged to be entitled to compensation. The Supreme Court set aside the award in favour of the Oloto Chieftaincy family and directed that compensation be paid to J. B. Atunrase, the Appellant.
Here, the contest is not as to the ownership of the land upon which the Port Complex was built between the Appellants and the Respondents or as to who is the rightful person to be paid compensation. The lower court was not called upon to decide the issue, as at the time the action was instituted, of who the owners of the land in question were between the Appellants and the Respondents. The claim for declaration itself postulates that before the land was acquired, it belonged to Ogu Community and that it was thereafter compulsorily acquired. That being the case the Appellants had no subsisting interest upon which a declaration can be decreed. What the Appellants are asking for is a bare, empty declaration without any allegation of an interference with their right to the property by the Respondents.
In the words of Oputa, J.S.C. the Appellants are asking for a declaration of title in vacuo.
The Appellants do not claim any subsisting possessory right over the property in question.
Indeed, they cannot do so because in the way the claim for declaration has been couched they have admitted that after the notice of acquisition, they no longer have any further claim to the land upon which the Port Complex was built. The land for which they seek declaration formerly belonged to the Appellants. Indeed, by virtue of section 8 of the Public Lands Acquisition Law Cap. 105 Laws of former Eastern Nigeria applicable to Rivers State at the time of the acquisition in 1974 the Federal Minister of Works had taken possession of the land upon which the Port Complex was built and to that extent an action for declaration of title would be incompetent more so when the Appellants admitted in their brief that they had been paid compensation for the land acquired. What further right have they to a declaratory relief?
The most crucial issue in this appeal, as I see it, is the second issue formulated by the Respondents thus:
“Do the Appellants have any justiciable legal right in the choice of name of a Government institution such as Federal Ocean Terminal by the Government?”
The first six issues formulated by the Appellants are all encompassed in the second issue formulated by the Respondents for determination in the appeal.
It is contended in the Appellants’ brief that by the combined effect of sections 5, 135, and 136 of the Constitution of 1979 and section 6(1)(a) of the Ports Act Cap. 155 Laws of the Federation, once the President of Nigeria has appointed a Minister of Transport, the Minister has full responsibility for the business of the Government of the Federation which business includes the naming of any Port under his department.
Section (6)(1)(a) of the Ports Act provides that:
“The Governor-General in Council may, by order-
(a) declare any place in Nigeria and any navigable channel leading into such place to be a port within the meaning of this Ordinance.”
Learned counsel contended that although the section merely talks of “Declaring” a place as a Port, by virtue of section 136(1) of the Constitution which gives the Minister the full responsibility for the administration of any business of government, the Minister has the power to give a name to a Port which he has declared.
I do not think that there is any controversy on all sides with respect to the power of Government to give a name to a Port so declared. What is in dispute here is whether the Appellants are entitled to have the Port named after their community and whether they have proved any agreement between their community and Government that after the acquisition of their land and the payment of N135,666.00 as compensation for the land acquired, Government in fact agreed to name the Port after the Appellants’ community as “Ogu Port”.
In paragraphs 13, 14, and 15 of the Appellants’ statement of claim dated 7th June, 1982 the Plaintiffs averred as follows:
“13 During the acquisition aforesaid the 1st and 2nd Defendants through their representatives entered into discussions and negotiation with the Plaintiffs and the Rivers State Government on the issue of the compensation to be paid.
14. Further to paragraph 13 above agreements were subsequently reached with the 1st and 2nd Defendants to the effect that the proposed Port would be named “OGU PORT.”
In breach of the aforementioned agreement the Defendants later decided to name the said Port “ONNE PORT”.
These averments were denied by the 1st and 2nd Defendants in paragraph 4 of their amended statement of defence dated 1st June, 1984 and filed on 6th June, 1984.
The Appellants were therefore put to prove specifically that the 1st and 2nd Defendants agreed with the Appellants that the Port Complex would be named “OGU PORT”.
With regard to the agreement pleaded in paragraph 13 above Chief Peter Tende who testified as P.W.1 said as follows at page 137:
“The issue we discussed was the naming of the Port after completion and compensation. The agreement we reached was, after completion of the Port, the Port should be named “Ogu Port”, as well as compensation. Agreement was reached with the Defendants – the Federal Minister of Transport. We met the Federal Minister of Transport in Lagos and after discussions he wrote a letter to the Community dated 20th January, 1981.”
The letter Exhibit A addressed to the Appellants stated thus:
“Please refer to your visit to the Hon. Minister of Transport on 7th January, 1981, and to your petition to him requesting for changing the name of Onne Port to Ogu Port.
2. I am pleased to inform you that the Minister has considered your petition and has since changed the name to Ogu Port. The Nigerian Ports Authority has been informed of the Minister’s decision and the decision will soon be publicised.”
It should be noted that the Port Complex was formerly known as “Onne Port”. That was clearly demonstrated in the “Public Announcement” published by the Nigerian Ports Authority on 16 January, 1981. The publication which appeared in Exhibit B (The Sketch) Monday January 26, 1981 and many other news media stated as follows:
“NIGERIAN PORTS AUTHORITY”
PUBLIC ANNOUNCEMENT
“The Nigerian Ports Authority wishes to inform the general public that the new port being constructed in the Rivers State of Nigeria formerly known as ONNE PORT will now be known and called OGU PORT
J. E. KALU
Secretary to the Authority
Nigerian Ports Authority Notice No.3284
Date 16/1/81.”
This was the beginning of the great explosion. The land upon which the Port Complex was constructed was said to be owned by the Oone Community but the Ogu community were said to be the occupiers and possessors of the land (possibly as customary tenants of the Oone Community) upon which they had their livelihood and who were dispossessed by the construction of the Port Complex. As I have mentioned earlier, the Respondents averred in paragraph 8 of their amended statement of defence dated the 1st day of June, 1984, and filed on 6, June, 1984 (page 129 of the record) as follows:
“The Defendants aver that in 1979 at the 32nd meeting of the Federal Executive Meeting, the council agreed that the New Port
Harcourt Wharf should be called “Onne Port”.
The Plaintiffs/Appellants did not file a reply to this important averment which, in my opinion, was a policy decision. If they did not agree with the assertion they were in duty bound to file further pleadings to deny the averment by virtue of Order XXXIII rule 16 of the High Court Rules of Eastern Nigeria Cap 61 applicable to Rivers State.
When the Minister received representations from the Ogu Community protesting that the port complex should be named “Ogu Port”, there is no evidence that the Minister called the Oone Community to hear their own side of the story, when from the accounts in the Government’s possession the Port was formerly known as Onne Port.
The learned trial Judge considered the matter of the change of name from “Onne Port” to “Ogo Port” in this way:
“But what was not clear or brought to public notice was the reason for the cancellation of the existing name “Oone Port” and without reason whatsoever substituting the name “Ogu Port”. This is the real dilemma in this action…………..
None of the parties has been able to tell the court why the original name ‘Onne Port’ was without any reason or explanation just changed to ‘Ogu Port’. The courts expect that a Government policy must be consistent and ought not to be subject to the whims and caprices of the circumstances which prevailed at the time. In fact it was in 1979 that the Port complex was called “Onne Port”. The Federal Government certainly had a reason to do so.”
I could not agree more with the learned trial Judge. His reasoning is logical having regard to the facts placed at his disposal. What answer has learned counsel to these devastating remarks against the Minister’s action? Learned counsel faintly attempted to proffer an answer in ground four of his grounds of appeal at page 236 of the record of appeal wherein he quoted what the learned trial Judge said that:
“With the stroke of his pen he cancelled “Onne Port” and called the complex “Ogu Port”. Indeed with this inconsistency and indecision the Minister was looking for trouble…”
Learned counsel for the Appellants contended that the statement of the learned trial Judge violated the separation of powers principle enshrined in the 1979 Constitution. He further contended that social consequences should not prevent the court from giving effect to a declared Federal Government Policy. I do not agree the statement of the learned trial Judge violated any of the provisions of the Constitution. Indeed, the learned trial Judge is enjoined by the interpretative powers vested in him to declare a purported Government Policy a nullity if it infringes on any of the provisions of the Constitution.
In a democratic society the Government is not empowered to force a policy on its citizens unless such policy is authorized by the Constitution and is such that gives an aggrieved party an opportunity for the person whose rights and obligations may be affected by policy decision to make representations to the administering authority before the authority makes the decision affecting the “Onne Community.”
Indeed, the Minister did look for trouble which he was incapable of solving even with the assistance of the Governor of the Rivers State. And it is over such simple matter as the change of the Port Complex from “Onne Port” to “Ogu Port” and now to “Federal Ocean Terminal Port Harcourt”.
The question which learned counsel for the Appellants should have asked himself before making such a mountain out of a mole hill is: Was the unilateral decision of the Minister valid or void without hearing the other side to the contest? The Port was formerly known as “Onne Port”, the Ogu community protested and petitioned the Minister and the Minister succumbed and changed the name to “Ogu Port” as the learned trial Judge put it “with a stroke of the pen.”
I am clear in my mind that at the time the Minister purported to change the name of the Port from “Onne Port” to “Ogu Port” he was incompetent so to do. At the time the purported change took place by letter Exhibit A dated 20th January 1981, the Constitution of the Federal Republic of Nigeria 1979 was in force. No organ of government can override any provisions of the Constitution without an appropriate censure by our superior Courts. By virtue of the provisions of section 6(1) of the Constitution:
“The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.”
Sub-section (6) of section 6 also provides as follows:
“the judicial powers vested in accordance with the foregoing provisions of this section
(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;
(b) shall extend to ALL matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
Idigbe J.S.C. in the celebrated case of Senator A. A. Adesanya v. President of the Federal Republic of Nigeria & Anor (1981) 1 All NLR (Part 1) page 1 at page 40 construed the expression, “judicial power” in this way:-
The expression “judicial power” in the above quotation is “the power of the court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision”
(see Justice Miller: The Constitution page 314). Judicial power is therefore invested in the Court for the purpose of determining cases and controversies before it;”.
I believe we ought to bear in mind that the court must in the exercise of its solemn and sacred duties, determine whether the act of the Minister of Transport in changing the name of the Port from “Onne Port” to “Ogu Port” be constitutional or not; such an exercise of power is the ultimate and supreme functions of the courts.
As Idigbe J.S.C. clearly stated in the Adesanya case, under our Constitution, government is divided into three separate and independent sections, The Executive, The Legislature and The Judiciary.
It is the duty of each section to avoid encroachment by one on the sphere of the other but the Courts must not fight shy to declare an act of the Executive unconstitutional when it patently appears that it is; that, in my view, does not mean that the Courts possess a general veto power over the other two arms of Government; its powers properly construed, are supervisory.
The same goes under subsection (2) for state courts established under the Constitution. These provisions are, however, subject to their being suspended during a period of Military Rule. The superior Courts are empowered to declare null and void any infraction of the provisions of the Constitution. That is the sacred duty entrusted to the courts and it will apply with full force and vigour those powers within the confines of the law.
The decision of the Minister taken after he had heard the case of the Ogu Community and coming to an immediate decision without hearing the case of Onne community after whom the Port had been originally named was a flagrant breach of the provisions of section 33 of the Constitution. The section provides as follows:
“(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. ”
What the learned trial Judge did in this instant case is what Bello C.J.N. enjoined all judges to do and to do without fear or favour. The learned Chief Justice said, and I respectfully agree with him, that:
“In the exercise of its judicial powers a court of law should adhere to constitutionality. It should not condone the commission by a state of a constitutional wrong nor should it be an accessory after the fact to the commission of unconstitutionality.”
(See Engineering Enterprise of Niger Contractor Co. of Nigeria v. The Attorney-General of Kaduna (1987) 2 NWLR 381 (Pt.57) at page 391 F).
The learned trial judge in the exercise of his judicial powers stoutly and, if I may say so, courageously refused to condone the recommission by the Minister of a constitutional wrong by the Minister refusing to adhere to the provisions of section 33(1) of the Constitution of the Federal Republic of Nigeria which enjoins him to hear both parties to a dispute before arriving at a decision. That constitutional wrong by the Minister rendered the naming of the Port Complex as Ogu Port a nullity.
In this case the Onne community are the aggrieved people because Government on its own volition called the Port Complex “Onne Port”. Without any reason, except the protest and petitions of Ogu community, the Minister without giving the Onne community a hearing changed the name of the Port to “Ogu Port”. In this case the Onne community have suffered a legal grievance, they are people against whom a decision has been pronounced which has wrongly deprived them of something, or wrongly refused them something, wrongfully affecting their title.
(See per Olatawura, J.C.A. in Eze Ewelu & Ors. v. Lawrence Nwankpu & Anor (1987) 2 NWLR 93 (pt.54) at page 100 citing with approval dictum of James L.J. in Ex parte Sidebotham (1880) 14 Ch.D.465).
Finally, on the question of fair hearing, I can do no better than accept the views of Aniagolu J.S.C. where he said:
“Instances may exist where short cuts may prove invaluable and achieve their objectives. It is, however, generally to be recognised that in legal matters and particularly in matters of natural justice, short-cuts many times prove counter productive, by short-circuiting legal norms and norms of natural justice, and rendering the whole exercise a futility. In that case the short-cut becomes the ineffective longer route.”
(See State Civil Service Commission & Anor v. Alexius I. Buzugbe (1984) 7 S.C. 19, 40 cited with approval in C. I. Olaniyan & 2 Ors. v. University of Lagos & Anor (1985) 599 at 654 E – F) where the learned Justice added that:
“The procedure adopted by the Council may be quick, convenient and time saving, but the dictates of justice demand that the legal principle of audi alteram partem must be obeyed no matter how cumbersome and inconvenient it may appear to the Council.”
Here we are then! The Minister adopted the shortcut by circumventing the Onne community. The Minister did not bear in mind that this was a legal matter touching section 33 of the Constitution of the Federal Republic of Nigeria, particularly a matter of natural justice in which the principle of audi alteram partem should be followed. The short-cut which the Minister adopted has now proved counter-productive. The whole exercise has been rendered a futility. At the end, the short-cut has become the ineffective longer route. This action was instituted on 14 December, 1981, so much money must have been expended by the parties in the prosecution of this case and this judgment may not be the end of the controversy. That is the futility of the short-cut.
I have no doubt whatsoever that the Minister’s action in changing the name of the Port Complex from “Onne Port” to “Ogu Port” without complying with the principle audi alteram partem was ultra vires null and void. On that ground alone this appeal ought to be dismissed. But a lot has been canvassed in the Appellants’ brief of argument and in appreciation of the amount of industry put into the preparation of the brief it is right and proper that consideration be given to the weighty issues of law so eloquently and forcefully presented therein.
The other grounds of appeal, namely grounds 1 and 3 and grounds 2 and 5 can, in my view, be treated as two separate grounds of appeal. Grounds 1 and 3 made copious references to the constitutional provisions of the executive powers of the Minister in the brief, while grounds 2 and 5 deal with the identity of the land and the non-joinder of other interested parties in the suit and weight of evidence.
Learned counsel contended in the main that section 5 of the 1979 Constitution delegated some of the executive powers of the Federation which are vested in the President in the Ministers who shall be appointed under section 135(1) of the Constitution. Further, section 136(1) of the Constitution provides that the President may in his discretion assign to any Minister of the Government of the Federation responsibility for any business of the Government of the Federation, including the administration of any department of the Government. Counsel submitted that section 6(1)(a) of the Ports Act Cap. 155 Laws of the Federation empowers the President to declare by order any place in Nigeria and any navigable channel leading into such place to be a port. The combined effect of the above constitutional provisions, counsel submitted, enables the President to assign the portfolio of Transport to a Minister so appointed who shall have charge for the responsibility of transportation and other functions appertaining thereto. Learned counsel submitted that although section 6(1)(a) of the Ports Act aforesaid merely talks of “Declaring” a place a Port, by virtue of section 136(1) of the Constitution, the Minister has the overall responsibility for the business within his portfolio.
My view is that the Minister of Transport cannot, under the various provisions of the Constitution and the Ports Act, unilaterally give a name to a Port as it is submitted by learned counsel. Government in a democratic society is organised on the basis of collective responsibility. The building of a Port Complex, the name to be given to such Port are not the kind of responsibility delegated to the Minister of Transport without the decision of the Executive Arm of the Government. If it were otherwise we will wake up one morning and the Apapa Wharf or the Tin Can Island in Lagos will all bear different names from a brain wave of a non-conformist Minister of State. That will be a sad day.
There is no evidence, neither is there any pleading by the Appellants that the Executive Arm of the Government ever took a decision after it had been decided that the Port Complex should be named “Onne Port” that it should later be changed to “Ogu Port”. If the Minister of Transport on his own decided to change the name of the Port from “Onne Port” to “Ogu Port”, he was, in my judgment, acting ultra vires. When a joint decision has been taken by the Executive Arm of Government, it would lead to chaos if a Minister were able to change such a decision without the opportunity of a reference to the Government. After all, the act is the act of Government collectively, not that of the Minister of Transport solely. A Minister is bound by the doctrine of collective responsibility.
I am therefore not persuaded by the submission of learned counsel for the Appellants that it is within the full constitutional competence of the Minister of Transport to give a NAME to any place so declared as a Port in Nigeria. That will be against the spirit and intendment of the 1979 Constitution. Section 122(2) of the Constitution provides that the President shall be the Head of State, the Chief Executive of the Federation and Commander-in-
Chief of the Armed Forces of the Federation and section 136(2) provides that:
“The President shall hold regular meetings with the Vice-President and all the Ministers of the Government of the Federation for the purposes of:
(a) determining the general direction of domestic and foreign policies of the Government of the Federation;
(b) co-ordinating the activities of the President, the Vice President and the Ministries of the Government of the Federation in the discharge of their executive responsibilities; and advising the President generally in the discharge of his executive responsibilities; and
(c) advising the President generally in the discharge of his executive functions other than those functions with respect to which he is required by this Constitution to seek the advice or act on the recommendation of any other person or body.”
Thus it is clear that while the Constitution provides for an Executive President, the President and his team shall hold regular meetings to determine among others the direction of domestic policies and co-ordinating the activities of the functionaries of government in the discharge of their executive responsibilities as in this case meeting to decide where the Port Complex would be built, how the land upon which it was to be built would be acquired, how much compensation would be paid for the acquisition and how and where the money would be procured, the firm of contractors who would build the Port Complex and what name the Port Complex would be called.
All these functions are not, in my judgment, functions which any Minister can, on his own decide upon; such policy decision would be a collective responsibility of the President and his Vice President with the Ministers of Government.
I cannot agree that after a meeting with the Ogu community without reverting back to the President and his team, the Minister is competent to change the name of the Port from its original name to Ogu Port at his own discretion. That, with respect to learned counsel for the Appellants, is not a reasonable and sensible general principle by which a government is guided in its management of public affairs. With the utmost respect to learned counsel, a unilateral decision by the Minister of Transport short-circuiting legal norms and norms of natural justice rendered the whole exercise a futility.
The publication in the news media and the letter to the Ogu community did not mention that such an important shift in policy was taken after due consultation with the President of Nigeria and the Cabinet. It therefore can be presumed that the Minister of Transport attempted to have a short cut by circumventing the legal norms and this had proved counter-productive.
I am satisfied that the views which I hold above in this matter are fortified by the opinion of ELIAS C.J.N. in Job Ike & Ors. v. Patrick Nzekwe & Ors. (1975) 2 S.C. 1 at page 6. The learned Chief Justice said:
“It is sufficient for us to observe that both these cases must surely be subject to the over-riding consideration of STATE POLICY AS DECLARED BY THE SUPREME MILITARY COUNCIL having the force of law in Nigeria. The series of decisions, beginning with that in Ifegbu & Ors. v. Ukaefi & Ors. Suit No.SC/229/71, up to and subsequent to Okwuosa, far from having been arrived at by this Court per in curiam, have in fact been based upon the premise that judicial notice should be taken of the Supreme Military Council declaration and ruling to the effect that, so far as the Judges and the Courts that operated within the rebel enclave are concerned, they should be regarded as on leave without pay for the entire duration of the civil war, and that this period of rebellion should not count for seniority and pensions purposes.”
The operative words in the statement of the law as espoused by the revered Chief Justice Elias are “State policy as declared by the Supreme Military Council” and “that judicial notice should be taken of the Supreme Military Council declaration which has the force of law.”
There lies the distinction between that case and the instant case – the declared state policy of the Supreme Military Council which has the force of law and of which the Courts must take judicial notice. In the instant case, there is not the slightest shred of evidence that the act of changing the name of the Port complex was not the act of the Minister of Transport himself. It was such a grave decision which could lead to tribal conflict and upon which a matured and well thought of decision would have been taken after weighing the dangers inherent in failing to call to the conference table the Onne community after whom the Port was originally named.
The act of the Minister as contained in Exhibit A dated 20th January, 1981 after the meeting with the Ogu community on 7 January, 1981which I have quoted earlier was done in such a hasty manner and there is nothing in the letter to show that it was a decision taken by the President of Nigeria after having been so advised by members of his Cabinet to elevate it to the status of state policy, the type that the Judges and the Courts must take judicial notice of such decision.
Similarly, in F. S. Uwaifo v. Attorney-General, Bendel State & Ors (1982) 7 S.C. 124, the Supreme Court per Idigbe J.S.C. said, after consideration of a number of Decrees, at page 185 –
“That they (the Military Regime) also intended to extend the area of probe of assets to members of the first Military Regime is also understandable; and this can be gathered from their pronouncements (which can be judicially noticed by this Court) they charged the Gowon Regime with maladministration”.
The question of judicial notice in all these cases relates to a collective act of government which, in the period under consideration at the time of the Military Regime, statements which were made by that body had and I believe under the present Regime still has the force of law before a formal Decree is promulgated even when such statements can be open to challenge. Such situation is extraordinary; in a democratically elected government, it can never be correct to say that the word of the Minister of Transport issued at his own volition without its having been approved by his compeer in the Cabinet can be taken judicial notice of by our courts. There will be utter confusion in such a situation when statements which are contradictory are made by Ministers when they are changed as often as it pleases Mr. President.
In the discussion so far, I have dealt with grounds one and three of the grounds of appeal and I have reached the conclusion that the change of the name of the Port Complex from Onne Port to Ogu Port was not a policy decision as provided in the 1979 Constitution and the Ports Act. It is my view that the Minister of Transport took the momentous decision without regard to the provisions of section 33 of the 1979 Constitution. The procedure adopted by the Minister of Transport may be quick, but the dictates of justice demand that the legal principle of audi alteram partem must be obeyed no matter how cumbersome and inconvenient it may appear to the Minister. One important factor which must be emphasised is that political office holders must not arrogate to themselves knowledge of legal issues which are intricate and it will be in the interest of such holders of political office to seek the views of those law officers whose functions it is to operate day after day the law of the land. These grounds of appeal forcefully presented before us in the best tradition of the legal profession have failed to move us to disturb the judgment of Graham Douglas C. J.
With regard to grounds 2, 5 and 6 of the grounds of appeal, I think that learned counsel is very much alive to a stream of authorities that in a claim for declaration of ownership of land where there are many claimants and where the land is vast as in the instant case a plan of the land which the Appellants alleged originally belonged to them is essential. Learned counsel contended that all the parties knew the location of the Port Complex and that there was sufficient evidence that the Appellants once inhabited the site of the Port Complex. The learned trial Judge at page 184 of the record of appeal commented as follows with regard to the land –
“In a claim such as this it would have been most useful for the court to know the area occupied by the Port Complex vis-‘E0-vis the area occupied by the Ogu people. The acquisition contained areas approximately 183.65 acres, 229.38 acres, 112.81 acres and 453.23 acres marked “A”, “B”, “C” and “D” respectively on Plan No.05 (Tracing No.RS260/5-73)”
In suit No.PHC/166/77 several communities appeared in the claim for compensation laying claim to various parcels of land. Over which particular parcel of all the parcels of land are the Appellants seeking Declaration?
However, the Appellants’ claim for a Declaration is fraught with two main flaws: they claim no subsisting interest in the land and they have failed to demonstrate their first duty by showing the area to which their declaration relates. One of the ways of showing the specific area claimed is to file the plan of the area, such plan being properly oriented, drawn to scale, accurate and reflecting the boundary features. Such a plan must have been prepared by a Licensed Surveyor.
(See Alhaji Adebola Olakunle Elias v. Chief Timothy Omo-Bare (1982) 5 S.C. 25, 38-39; Rowland Omoregie & Ors. v. V. O. Idugiemwanye & Ors. (1985) 2 NWLR (Part 5) page 41 at page 60.)
For the flaws which I have highlighted and the failure to produce the plan of the particular area over which the Appellants sought declaration coupled with the reasons which I had earlier given, the Appellants are not entitled to the discretionary remedy of a declaration.
With regard to the non-joinder of the parties said to be interested in the land upon which the Port Complex was built, I think little need be said about it. Whether any other parties ought to be joined is of little importance because none of the parties have complained that their rights and interests have been interfered with; nor have the rights and interests of the Appellants been interfered with. Those persons have no dispute with the Appellants; that being the case their non-joinder would not have advanced the case of the Appellants any better and the Appellants’ case could not have been dismissed solely for that reason. It would have been a different matter if those whom the learned trial Judge said ought to have been joined still have any further interest in the Port Complex land.
True, the Okrikas, the Elemes, the Onne and the Ogu people might “have at one time or another knocked their heads over this land”, all of them have given up their right, title and interest over the vast area of land by the acquisition of their land by the Rivers State Government. Thus what the Privy Council said in Ibeneweka & Ors. v. Egbunam & Anor (1964) 1 W.L.R 219 at 225-
“That generally speaking, a court is not disposed to make declarations of right about matters of law when it is apparent that the declaration asked for concerns other interested parties who are not before the Court”, is not apposite in the present case.
These other communities, as far as the printed record goes, who have not joined in the suit showed no more interest in the Port Complex land or the name to be given to the Port Complex. It is therefore irrelevant for the learned trial Judge to make an issue of non-joinder of those communities who are no longer interested in the subject matter. The only other minor point is whether, on the evidence, the Minister of Transport entered into any agreement with Ogu Community, as to the name to be given to the Port.
The meeting held at the Government House, Port Harcourt at which representatives of Ogu and Onne Communities were present showed that there had been no previous agreement between the Ogu Community and the Minister of Transport. All that there was, was a great misunderstanding and that was why representatives of both parties met the Minister of Transport and the Governor on 19 June, 1981 “to resolve the conflict over the naming of the new Federal Port in Rivers State.”
The representative of Ogu community signed the Communique. If there was an agreement in January 1981 to call the Port Complex “Ogu Port” why did the representative of Ogu Community sign the Communique Exhibit “J” in which it was agreed that
“(1) In the Interest of peace and good neighbourliness the Port should for the time being be called Federal Ocean Terminal, Port Harcourt,
(2) That a meeting of the Chiefs and Elders of the two communities should as soon as possible meet to agree on a permanent name for the Port.
(3) If by the 20th of August, 1981 both sides do not jointly agree on a new name, the Federal Ocean Terminal shall be confirmed as the permanent name by the Federal Government”.
Why did the representative of Ogu Community who signed the Communique not come forth to testify that he did not represent the community at that meeting? The Ogu Community cannot now disown their representative and they are thereby estopped from contending that there had been a previous agreement between them and the Minister of Transport.
Forceful, eloquent and ingenious as the submission of learned counsel for the Appellants appear to me, there is not the slightest doubt that the Appellants have failed to establish that the Government took a policy decision to change the Port Complex from its original name of “Onne Port”, neither was there any agreement between Government and the Ogu Community to call the Port Complex “Ogu Port”. If the act of the Minister of Transport in changing the name from “Onne Port” to “Ogu Port” is unconstitutional as I have found, it is within the supervisory powers of the court to so declare.
The other point which is by no means unimportant is that sections 5,135 and 136 of the Constitution to which learned counsel for the Appellants made copious reference have been suspended by the Constitution (Suspension and Modification) Decree No.1 of 1984. Those provisions still stand suspended at the time when this appeal was argued.
However, in view of the conclusion which I have reached, I find it unnecessary to give any consideration to the effect of Decree No.1 of 1984 (as amended) on this appeal.
It only remains for me to express profound appreciation for the very able way in which counsel for both parties have presented their arguments before us. The case itself is not without great complexity. The result, of course, is that all the grounds of appeal fail, the appeal is accordingly dismissed with costs assessed at N1,500.00 in favour of the first and second Respondents.
SYLVESTER UMARU ONU, J.C.A.: I have been privileged to read in draft the judgment of my learned brother, Kolawole, J.C.A. just delivered. I so entirely agree with it that the appeal be and is hereby dismissed for the reasons given. I have nothing further to add thereto. I subscribe to the order of costs as contained in the lead judgment.
BRAIMAH AMEN OMUSUN, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother Kolawole J.C.A. I agree with his reasoning and conclusion. There is abundant evidence that other parties are interested in the Port Complex. Compensation was made to two communities – “Ogu (occupiers) and Onne – the original landowners”. There is no doubt that there were inconsistencies in the naming of the Port. First it was named “Onne”. This was based on a decision of the Executive Council. Apparently for no reason other than pressures from “Ogu Community” the Minister of Transport unilaterally changed it to “Ogu” Port. It is contended that the Minister of Transport could so change the name. In Shitta-Bey v. F.S.P.C. (1981) 5 S.C. 40, it is said as a legal term, the expression “Ministerial” has no single fixed meaning. It is sometimes used to describe any duty, the discharge of which does not involve any element of discretion or independent judgment; on some other occasions it has been used “more narrowly, to describe the issue of formal instruction, in consequence of a prior determination which mayor may not be a judicial character, that direct action be taken in relation to another person or property.” See de Smith’s Review of Administrative Action 4th Edition p.70. It is noted that throughout the proceedings, no evidence was led to show that the Executive Council took a decision to change the name to “Ogu” Port thereby rescinding its former decision to call it “Onne” Port. It seems to me that the Minister by his action was acting unilaterally and arbitrarily. While it was his ministerial responsibility to look after the Ministry of Transport, it was not his to decide to change the name.
Evidence abounds that this was resented by the “Onne” community and I take the view that in the interest of peace, order and good government, a compromise had to be found and so the present name “Federal Ocean Terminal” was adopted. It is within the discretion of a Court whether to grant a declaratory judgment where it will be unnecessary or vexatious to do so. The “Onne” community clearly resented it. They withdrew their consent to the acquisition of the land. There were acts of violence. Given that background the trial Court was right in refusing to grant the declaration.
It seems to me that this action was making much ado about nothing. In any case the legal estate was no more vested in the “Ogu” community. The land had been acquired and compensation paid to them. The Federal Government was in possession. As such it is a mere husk asking for a declaration.
For these reasons and the ones so exhaustively advanced in the lead judgment of Kolawole J.C.A., I agree that the appeal lacks substance. I dismiss the appeal. I agree to the order of costs made in the lead judgment.
Appeal Dismissed
Appearances
Mr. Kunle Omowole For Appellant
AND
Mr. Harris Eze (Legal Adviser Federal Ministry of Justice) For Respondent
