GOVT. OF ENUGU STATE OF NIG. & ORS v. ONYA & ORS (2021)

GOVT. OF ENUGU STATE OF NIG. & ORS v. ONYA & ORS

(2021)LCN/14948(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Thursday, January 28, 2021

CA/E/94/2015

RATIO

BRIEF: PURPOSE OF A REPLY BRIEF

A Reply brief is not meant to give a second chance to argue appeal, but to respond to fresh points of law, raised in Respondents brief, which were not contemplated in the Appellants Brief. See the case of Iheka vs Njoku (2017) LPELR-42002 CA Akayepe & Anor vs Akayepe (2009) LPELR-326 (SC); Mathew vs State (2019) LPELR-46930 (SC); Akwaiwu & Anor vs Akwaiwu & Ors (2020) LPELR 51954 (CA). PER ITA GEORGE MBABA, J.C.A.

LAND LAW: RIGHT TO OWN IMMOVABLE PROPERTY

Sections 43 and 44 of the 1999 Constitution, state:
43. Subject to the provisions of this Constitution, every citizen shall have the right to acquire and own immovable property anywhere in Nigeria.

In the case of Master Vs Mansur &Ors (2014) LPELR – 23440 CA, it was held that:
“… compulsorily taking possession of is not limited to cases of compulsory acquisition under the public Lands

Acquisition Decree. The word “compulsory” simply means, “having the force of compulsion” or “to compel”. The word “compulsory” in the first part of Section 40(1) of the 1979 Constitution, aforesaid, simply refers to situations where a citizens land is forcefully taken possession of. The situation covers the circumstances of this case, where the appellant, using their powers as a statutory corporation of Imo State Government, continues to forcefully occupy the respondents land and was even issuing public notices to chase away the respondents from their land…”
(Section 40(1) of the 1979 Constitution is equivalent of Section 44(1) of the 1999 Constitution). See also Adeyemi –Bero Vs Lagos State Development Property Corporation & Anor (2012) LPELR – 20615 SC. PER ITA GEORGE MBABA, J.C.A.
LAND LAW: EXTENT OF THE POWER OF THE GOVERNOR TO GRANT OR REVOKE THE RIGHT OF OCCUPANCY

The Governor can grant or revoke the right of occupancy on any portion, but the law also spells out how that can be done, lawfully. And where it has to do with revocation of right of occupancy (which must be for overriding public interest), the law stipulates the need for notification of the land holder and for compensation. See Section 44(1) of the 1999 Constitution; Nkwocha Vs Gov. of Anambra State & Ors (1984) LPELR – 2052 (SC).
In the case of Adegunle Vs The Governor of Lagos State & Ors (2019) LPELR – 48013 CA, my lord, Garba J.C.A. (as he then was – now J.S.C.) said:
“… Section 28 of the Land Use Act, empowers the Governor of a State to revoke rights of occupancy over land situate in a State for overriding public interest. It is expedient to call in the provisions of the Section for full appreciation of the powers provided therein… The exercise of the powers by the Governor to revoke a right of occupancy over a piece or parcel of land, personal or communal, is what has become known as compulsory acquisition of land by Government. Because the exercise of the power and authority to compulsorily acquire land by way of revocation involves, affects and expropriate personal or communal rights of person(s) or communities in question, guaranteed by the provisions of Section 44(1) of the Constitution, the attitude of the Courts over the years, has been to interpret the relevant statutory provisions under which the powers are exercised in order to ensure that the procedure stipulated therein are strictly complied with in the acquisition… Tobi J.S.C., in C.S.S. Bookshop Ltd Vs Reg. Trutees of Muslim Comm. In Rivers State (2006) 11 NWLR (Pt.992) 530, stated the position, thus:
“The case law is in great proliferation. Any provision of the law which gives or governs compulsory acquisition of a person’s property must be construed by the Court “fortissimo contra preferentes” Such a statute should be construed by the Court, strictly, against the acquiring authority and sympathetically in favour of the complainant or the owner of the property against any irregularity in the procedure for acquisition as laid down by the enabling statute… These judicial authorities are unanimous that for a compulsory acquisition of land by the Governor or Government to be valid and legally effective to extinguish the existing right over a piece or parcel of land, the provisions of the Land Use Act and as the case may be, other enabling statutes on the procedure provided for the acquisition, must be strictly followed and observed in the process of acquisition.” PER ITA GEORGE MBABA, J.C.A.
APPEAL: CONSEQUENCES OF FAILURE TO APPEAL AGAINST FINDINGS OF COURT

We have stated the law, repeatedly, on the consequences of failure to appeal against finding/holdings of Court, but repeating the same arguments, raised at the lower Court, on appeal; that the finding/holding of the lower Court remains, binding and conclusive. See Nmanumeihe Vs Njemanze (2016) LPELR – 40212 (CA); Durbar Hotel Plc Vs Ityough & Ors (2016) LPELR – 42650 (SC); Ezike Vs Egbuaba (2019) LPELR – 46526 SC.
In the case of Nwachukwu & Ors Vs Atata & Ors: CA/OW/178/2018, delivered by this Court on 14/12/2020, we held:
“I had earlier said that Appellants did not appeal against the Salient issues resolved in the case, and the findings of facts, thereof. Just as submitted by the Learned Counsel for the Respondents, Appellants’ Counsel merely reproduced the same issues Appellants raised at the trial Court, and the arguments they canvassed on those issues at the trial Court, in this Appeal, without impeaching the decision of the trial Court on those issues, that is, without attacking the resolutions of the trial Court on those issues. The law is trite, that a finding or holding of a Court, not appealed against, remains binding and conclusive. See Nmanumeihe Vs Njemanze (2018) LPELR – 40212 CA; CPC Vs INEC (2011) 18 NWLR (Pt.1279) 493.” PER ITA GEORGE MBABA, J.C.A.

Before Our Lordships:

Ahmad Olarewaju Belgore Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Between

GOVERNMENT OF ENUGU STATE OF NIGERIA 2. HON. COMMISSIONER FOR ENVIRONMENT & MINERAL RESOURCES ENUGU STATE 3. HON. ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE ENUGU STATE 4. HON. COMMISSIONER, ENUGU STATE CAPITAL TERRITORY DEVELOPMENT AUTHORITY, ENUGU APPELANT(S)

And

SUNDAY ONYA 2. SUNDAY AGU 3. MICHEAL ONOH 4. EBELE UZO 5. CHISOM EZE 6. MRS. MARIA OJUKWU 7. MR. E. OBINGENE 8. CHIDI ISIENYI 9. EZE CHRISTOPHER 10. EBELE ONUDI 11. FUCHI AGU 12. S. Y. AGU 13. REV. EMMANUEL NNAMANI 14. CHINELO CHIME 15. MR. C. AHIZE 16. MR. A.B.C. UDE 17. THANKGOD OZULU 18. IBEMSI BONY IFEJIKA 19. CLEM ASOGWA 20. CHINONYE AKARA EKWE 21. CHIBOY EZENWATA 22. IKECHUKWU EZE 23. CHIBO EZE 24. ROSEMARY AGIM (MRS) 25. MR. CHRISTIAN OJI 26. GODFREY NWANI 27. UCHENNA ONWE 28. D. NGWU 29. JOHN OKEKE 30. SAM ANEKE 31. MRS. OGBATA BRIDGET 32. NKEM ONYIA 33. JOHN ONYIA 34. LUCY ONYIA RESPONDENT(S)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellants filed this Appeal against the decision of Enugu State High Court in Suit No. E/30M/2013, a Fundamental Rights Matter, delivered on 30th October, 2014 by Hon. Justice I.C. Nwobodo, wherein his lordship gave judgment to the Applicants and granted their reliefs, including award of N850,000.00 to each of the Applicants as compensation for breach of their Fundamental Rights (amounting to N28.9Million) and N2Million exemplary damages and cost of N100,000.00 (One Hundred Thousand Naira).

At the trial Court, the Respondents (as Applicants) had sought the following reliefs in their fundamental rights action filed on 23/12/2013:
(a) A declaration that the compulsory acquisition and demolition of property/stalls of the applicants, situate at Works Road, Murtala Mohammed Park, opposite the Nigeria Civil Defence, Enugu, by the Respondents, particularly the 4th Respondent, without compensation from the Respondents, is a violation of the Applicants’ right to freedom for ownership of immovable property anywhere in Nigeria and compulsory acquisition of property, as guaranteed under

Sections 43, 44(1)(a) and (b) of the 1999 Constitution of Nigeria (as amended).
(b) An Order directing the Respondents to forthwith pay the sum of N850,000.00 (Eight Hundred and Fifty Thousand Naira only) to each of the allottee/applicant, totaling N28,900,000.00 (Twenty Eight Million, Nine Hundred Thousand Naira only) as compensation to applicants for the compulsory acquisition and demolition of the applicants said property, without compensation.
(c) An Order that Respondent pay N10,000,000.00 (Ten Million Naira) exemplary damages to the Applicants for keepings them out of business and depriving them their source of income without compensation.
(d) In the alternative to the reliefs above, a declaration that in the absence of payment for the said property of the applicants by the Respondents, (sic) is unconstitutional, null and void and of no effect what so ever, and an order directing the Respondents to restore to status quo.
(e) And any other Order(s) as the Court may deem proper to make in the circumstances.

The Application was supported by requisite Statement disclosing the names and particulars of the parties, the facts of the

case, supporting affidavit(s) and exhibits. On being served with the processes, the Respondents filed their Counter affidavits and documents to defend the case. After hearing the Application and considering the affidavit evidence and addresses of Counsel, the trial Court held for the Applicants, as follows:
“… Applicants were on the land on the authority of the State and cannot by any stretch of imagination be trespassers. The allocations denoted right in the Applicants akin to a lease and, in fact, it has been stated a right of occupancy under the Land Use Act is less than a lease. It is a licence, a deliberate declaration of Natural Policy… I liken the allocation papers issued by ENSEPA to the Applicant Allottees in this case to rights of occupancies, their both purports being same, a right of user.
The finding of this Court therefore is that no matter the limited nature of the applicants interests of the various stalls in this case, they had an interest or right in the stalls by virtue of the allocations given them and which is to be protected in Court of law. This right in the Applicant is “an interest” in immovable

properly, which by Section 44 of the Constitution is to be compensated, upon a compulsory acquisition, for unexhausted improvements in line with the Land Use Act 1978. As to the fact therefore, all Land in Enugu State being vested in the Governor and his rights to revoke, under the Land Use Act for overriding public purpose, I therefore agree with the Learned Applicants’ Council (sic) when he relied on the authority in the case of Kukoyi Vs Ania (supra) and submitted that the reposing of all the lands in the State inn (sic) the Governor of a State by the Land Use Act does not contemplate or mean that the Governor of a State can compulsorily acquire or demolish properties of citizens with (sic) payment of compensation, at the least for unexhausted improvement…
The Applicants ask to be paid compensation… I agree that this Court has the right to order a payment of compensation to an applicant upon a finding that his fundamental rights has been breached. It is one of the remedies available in Section 46 of the Constitution.
In this case the applicants have placed before the Court a quantification of the compensation they say is due to

them upon the demolition of their stalls. The numbers of the various stalls have been produced at the beginning of this ruling – Applicants, say they sought the services of Tade Ezeorah and Associates, Estate Valuers Property Consultants… who valued their demolished properties at N850,000.00… each and have exhibited the valuation certificate and report as Exhibit C. Exhibit C contains also photographs of the demolished stalls and allocation papers for each of the applicants’ stalls. The Applicants also say the rental values of their stalls as at demolished in September, 2012 was N120,000.00 per annum. There is no stipulation in the allocation papers, when the Applicants were to give up possession of the stall. It therefore appears they were entitled to retain the stores upon complying with the terms of the allocation papers including payment of rents.
Therefore there is no basis upon which it can be said that the applicants have exhausted their improvements on their allocations. Upon the demolition therefore they were to be compensated… In concluding this ruling, I have found for the Applicants, with respect to their reliefs claimed in this Court and make orders as follows; (See pages 220 to 223 of the Records.

Dissatisfied with the above decision, Appellants filed this Appeal on 15/12/2014; they filed additional grounds of appeal on 22/9/2015, which was deemed duly filed, on 6/6/2017. They filed their Brief of Arguments on 27/11/2015, which was also deemed duly filed on the same 6/6/2017, wherein Appellants donated four (4) Issues for the determination of the Appeal, namely:
(1) Whether this Suit was properly instituted under the Fundamental Rights Enforcement Procedure Rules 2009 (Ground 1)
(2) Whether the Respondents have right/title to the property they are claiming to be entitled to compensation (Ground 2)
(3) Whether Enugu State Government should be held liable to the act of the then ENSEPA who acted ultra vires the scope of his duty (Ground 3).
(4) Whether the Learned trial Judge was right in entertaining the Suit, when it was mis-jointly brought before it (Ground 4).

The Respondents filed their Brief on 28/6/2017, and adopted the Issues as distilled by Appellants for the determination of the Appeal. When the Appeal came up for hearing, on 13/1/2021, the Counsel (on behalf of the parties) adopted their briefs, and urged us, accordingly.

Arguing the Appeal, Appellants Counsel U.M. Okeji (Mrs.) (C.L.O. Enugu State) who settled the brief, on Issue 1, said that the trial Judge erred, when he interpreted the issue of paying compensation to licencees, who have no title to fall under the Provision of Sections 43, 44(1) (a) and (b) of the Nigerian Constitution and relying on the case of Director of SSS Vs Agbakoba (1999) 3 NWLR (Pt.593).

Counsel said that by the holding of the trial Court on page 215 of the Records of Appeal, the Court raised 3 fundamental questions, namely:
(1) Whether the suit was properly brought under Fundamental Rights Enforcement Rules.
(2) Whether the Respondents as licencees can claim perfect title as can be protected by Sections 43 and 44 of the 1999 Constitution (as amended).
(3) Whether the facts in issue in this instant case is the same and to be likened to the fact in the case of Director of SSS Vs Agbakoba (supra) as cited by the learned trial Judge.

Counsel answered the three posers in the negative. She said that the principal relief in the case was not fundamental rights action and relied on Badejo Vs Federal Min. of Education (1996) 8 NWLR (Pt.464) 15; Sea Truck Ltd Vs Anigboro (2001) FLWR (Pt.360).

Counsel also argued that the Applicants had no valid title to the property they were claiming compensation on, and so should not have expected something to come from nothing. She relied on Owners M/V Baco Liner 3 Vs Adeniji (1993) 2 NWLR (Pt.274) 203, and stated the five different ways of proving title to land, as per the case of Alli Vs Alesinloye (2000) FWLR (Pt.15) 2610. She added that a right of occupancy cannot be deemed to be in existence, without meeting any of the said requirements to prove title and that the Land Use Act, 1978, expressly stated ways of acquiring titled property and so one cannot be entitled to compensation on demolition of property, if he cannot establish such title.

On whether the Respondents, as licencees, can claim perfect title as can be protected by Section 43 and 44 of the 1999 Constitution, Counsel answered in the negative. She said that provisions of the constitution protects only those that have perfect title from appropriate authority; that the

Respondents had no cause of action, at all; that assuming they had (which Counsel did not concede) that the Respondents should have approached the Court by way of writ of summons, instead of fundamental rights action.

She referred us to page 218 of the Records, where the trial Court said “in any case when the Governor revokes a right of occupancy, he is by virtue of Section 28 of the Land Use Act bound to pay compensation for the unexpired improvements of the land.” Counsel said that the judge was referring to a situation in which they had title, that since the Respondents failed to produce any evidence as to title, they could not claim compensation for the demolition of the property, and they cannot talk about revocation of right of occupancy. She relied on Ezeanah Vs Atta (2004) 7 NWLR (Pt.873) 468; Auta Vs Ibe (2003) 13 NWLR (Pt.837) 247.

Counsel said that, in this case at hand, even though the Respondents had no valid title to the property, Appellants still made frantic effort to notify them to vacate the property and the Respondents failed to honour the notices given to them to vacate and remove what they had on the land. Counsel

asserted that the Respondents were licencees and so their tenor, limited. She relied on the case ofNwana vs FCDA (2004) 13 NWLR (pt. 889) 128 to say that a licencee cannot maintain an action against his landlord. Counsel added that the case of Director of SSS vs Agbakoba supra was not applicable to this case.

On Issue 2, whether the Respondents had right/title to the property for which they claimed compensation, Counsel answered in the negative and repeated the argument under Issue 1.

She asserted that the document the Respondents had were allocation papers on which it was stated that the allocation was temporal. She relied on the case of Ilona vs Idakwo & Anor (2003) 11 NWLR (Pt.830) 53 to state the decision of the Court that:
“A temporary right of occupancy cannot… amount to the same thing, in law, as a statutory right of occupancy. A temporary right of occupancy, as its title implies, is essentially, limited or transient in nature. It amounts to no more than a bare license to occupy land on a temporary, and sometime short-term basis and generally confers no legal estate in the grantee of such right.”

Counsel said that the trial Court had said that the allocation paper, while not a statutory right of occupancy, was a right to occupy the property; she said that the allocation papers can be equated to statutory right of occupancy; that the trial Court was going forward and backward, at the same time.

She said that the trial judge was misguided by the book of Hon. Justice I.A. Umezurike OFR, FCI Arb, titled ABC of Contemporary Land Law in Nigeria, Revised and Enlarged Edition 2013. Counsel relied on the Black Law Dictionary for the definition of “Certificate of company” as well as on the case of Ilona vs Idakwo (supra) for the definition of “temporary right of occupancy” to say that the trial Judge was himself in doubt as to the nature of interest of the respondents in the property, whether limited or unlimited.

She said that based on definition in the Black’s Law Dictionary, the lower Court cannot liken a temporary allocation paper to a valid title from a Certificate of Occupancy, and as such, for the interest from the former to be protected by Section 44 of the 1999 Constitution.

On the Issue 3, whether the Enugu State Government should be held liable for acts of ENSEPA, which acted ultra vires, Counsel, answered in the negative. She said that ENSEPA acted ultra vires the scope of their duties; that ENSEPA, being-Enugu State Environmental Protection Agency, their duty was to keep clean, protect and safeguard the environs of Enugu Metropolis. She referred to the Edict establishing the Agency (ENSEPA) and said that, there is nowhere, under the functions of the Agency, that partitioning and selling lands was part of the duties of the Agency, let alone parks and recreational centres; she said that any action done by the agency, not stipulated in the law establishing it, was outside their jurisdiction, and done ultra vires the scope of their duty, and so Enugu State Government will not be responsible for that. She relied on the case of Ekanem & ors vs Obu (2010) LPELR-4084 CA, on the meaning of ultra vires, and on the case of Olaniyan vs University of Lagos (1985) NWLR (Pt. 9) 599, to say that “A corporation or a company which is created by or under statute, cannot do anything at all, unless authorized expressly or impliedly by the statue or instrument defining its powers…”

She also relied on Psychiatric Hospital Management Board vs E.O. Ejitagha (2000) II NWLR (Pt. 677) 154, where it was held:
“It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. It must act reasonably.â

She also rely on the case of SDC Cementation Nig Ltd Vs Nagel & Coy Ltd & Anor (2003) 4 NWLR (Pt 811); F.B.N. Ltd Vs Moba Farms Ltd (2005) 8 NWLR (Pt. 928) 492, to say that, where a contract in illegal, the subject matter of it is also illegal and a Court cannot come to the assistance of any party to an illegal contract, who wishes to enforce it; She argued that, since ENSEPA acted ultra vires its powers, its actions was therefore null and void, and that the Enugu Government cannot take responsibility for any act it did not empower ENSEPA to do.

On Issue 4, whether the trial judge was right to entertain the suit, when it was misjointly brought, Counsel answered in the negative Counsel said the interest

of the 34 Applicants were different as the stalls were owned, differently. She relied on the case of Hyson (Nig) Ltd vs Ijeoma & Ors (2008) LPELR-5159 (CA), to say that “the law for misjoinder of parties or cause of action applies also to misjoinder of parties or cause of action in contract as in the present suit. She argued that the Respondents had distinct and separate cause of action and cannot be brought together; that they applied for shops, differently, and had different proprietary interests. She urged us to resolve the issues for Appellants and to allow the Appeal.

The Respondents’ Counsel, Boniface N. Ugwu Esq., who settled the Brief, on Issue 1, said the suit was properly brought under Fundamental Rights Enforcement Procedure Rules, 2009, and referred us to the Section 3 (d) (e) (iii) and v thereof, on the objective of the Rules, that the Court shall proactively pursue, enhanced access to justice for all classes of litigants. He also relied on Section 13 (1) of the Rules, that any person or body who desires to be heard in respect of any human rights application and who appears to the Court to be proper party to be heard, may be heard, whether or not the party has been served with any of the relevant processes.

Counsel relied on the Cambridge Advanced Learner’s Dictionary, New Edition, reprinted in 2004, for the meaning of Body, at page 129 thereof, to be ‘A group of people who have joined together for a particular reason. Counsel argued that the Respondents’ suit was pursuant to Sections 43 and 44 of the 1999 Constitution, and brought as Fundamental Rights, action praying for declaration and compensation for infringement of Respondents fundamental rights by Appellants. He argued the that suit was, primarily, fundamental rights action, and relied on the cases of Ogunleye vs Oni (1990) 2 NWLR (Pt. 138) 745 at 773; Ajoku vs A.G. Rivers State (2006) All FWLR (Pt. 312) 2147; NAWA vs A.G. Cross River State (2008) All FWLR (Pt 401) 802; Akulega vs B S C SC (2002) FWLR (Pt. 123) 225.

Counsel said that it is the claim of the Plaintiff that determines the Jurisdiction of the Court, not the contraption or wish of the defendant, and that Respondents were not licencees on the land, but allottees of the shops by ENSEPA, through the Bureau of Land Office, Enugu of the then Government, Enugu State.

On Issue 2, Counsel said the Respondents were not claiming title to the land, but asserted right to occupy the shops which were duly allocated to them, with Certificate of allocation, on the authority of Enugu State Government, and so were not trespassers on the property. He said Appellants had relied on the case of Nwana vs FCDA (2004) 13 NWLR (Pt. 889) 128, DSS VS Agbakoba (1999) 3 NWLR (Pt 593) SC; Emmanuel Ilona vs Sunday Idakwo & Anor. (2003) II NWLR (Pt.830) 53; that the cases were not applicable and any case which does not apply is of no moment; that Respondents did not contest the power of Appellants to take over the shops, allocated to Respondents, but that such could only be done in accordance with the law before any demolition of the property, as per the Section 44 (1) (a) of the 1999 Constitution.

He asserted that Respondents had built the stalls/stores, in accordance with the terms of allocation of the land/spaces to them by Government; that their (Respondents) terms and use of the stores were unexhausted at the time of the demolition and compulsory acquisition of the stalls/stores. He said

that no matter the limited nature of the Respondents interest in the stalls, they had interest and right, nonetheless, which needed to be protected and which the trial Court had a duty to protect.

On Issue 3, whether Enugu State Government should be held liable for the wrong acts of ENSEPA, Counsel answered in the affirmative, and argued that ENSEPA was an agency of Government, and so its actions attributable to the State Government, whether or not what ENSEPA did was ultra vires its powers; that Appellants were vicariously liable for the action of its agents Counsel relied on the case of Iyere vs DF & FN LTD (2008) MJ.S.C. Vol. 12 pg. 106; Obaalor vs VC. University of Illorin & Ors (2008) 1 NWLR (Pt. 1068) 421; Nsirim vs Nsirim (2002) 3 NWLR (Pt 755) 697; Ude vs Nwara (1993) 2 NWLR (Pt 278) 638.

On Issue 4, Counsel said the trial Court was right to entertain the suit- a joint action by the Applicants, as they had a common cause of action and grievance; and that the reliefs sought were beneficial to all of them; that Respondents were lawful allottees of the demolished shops by the Appellants. Counsel relied on the case of

Registered Trustees of National Association of Community Health Practitioners of Nigeria & Ors vs Medical and Health Workers Union of Nigeria & Ors (2008) All FWLR (Pt 412) 1013 at 1027, on the condition of joinder of parties, where the Supreme Court said, as follows:
1) The right of the relief must in each case be in respect of or arises out of the same transaction or series of transactions.
2) There must be some common question of law or facts.

Counsel said the subject of this suit arose out of the same transaction; that Appellants compulsorily acquired and demolished the shops of the respondents, and the demolished shops were in the same location. Counsel said that the purpose of joinder of parties is to enable the Court effectively and effectively adjudicate upon issues involved in the matter; he said that the Respondents had a common interest and grievance in the suit, and relied on the case of Eco Bank Nig. Plc vs Metu & Ors (2012) LPELR- 20846 CA; Nzeribe vs Nzeribe & Ors (2013) LPELR- 21930.

He also relied onOgolo & Ors vs Fubara & Ors (2003) II NWLR (Pt 831) 231, where the Supreme Court said that

“joinder of parties is to avoid multiplicity of actions to save litigation time in the judicial process.”

In the case of Aga & Ors vs Onah & Ors (2012) LPELR – 22103 CA, it was held:
“the whole essence of joinder of parties is to avoid multiplicity of actions to save litigation time in the judicial process. It is also one way of trying to avoid abuse of the process.”

Counsel said, if the Court did not try the case of the 34 Applicants, together, it would have meant doing 34 Applications on the same and common interest and grievance, and that would be ridiculous duplication and multiplicity of actions. He again relied on Order 13 Rule Enforcement Procedure Rules, 2009, which allows:
“Any person or body who desires to be heard in respect of any human right application and who appear to the Court to be proper party to be heard, may be heard.”

Counsel also referred us to the preamble to the 2009 Fundamental Rights (Enforcement Procedure) Rules, Section 3 (d) and (e) to the effect that:
“The Court shall encourage and welcome public interest litigation in human rights fields and no human rights case may be dismissed or struck out for want of locus stand.”

He also cited the case of Durbar Hotel Plc vs Ityough (2016) 68 NSCOR 799, on conditions for suing in a representative capacity (where a case is fought in representative capacity), as follows:
a) There must be numerous persons interest in the case on the side to be represented.
b) All the persons must have the same grievance
c) The proposed representatives must be one of them and
d) The reliefs sought must be in its nature beneficial to all the persons being represented.
Counsel urged us to resolve the Issues against Appellants and to dismiss Appeal

RESOLUTION OF ISSUES
Appellants’ Reply Brief, filed on 18/7/2017, appeared to be a complete rehash of the Appellants’ brief, and done in a way that appeared to be a fresh argument of the Appeal. A Reply brief is not meant to give a second chance to argue appeal, but to respond to fresh points of law, raised in Respondents brief, which were not contemplated in the Appellants Brief. See the case of Iheka vs Njoku (2017) LPELR-42002 CA Akayepe & Anor vs Akayepe (2009) LPELR-326 (SC); Mathew vs State (2019) LPELR-46930 (SC); Akwaiwu & Anor vs Akwaiwu & Ors (2020) LPELR 51954 (CA).

I think the four issues distilled by Appellants for the determination of the Appeal and adopted by the Respondents, can be streamlined into 2, namely:
(1) Whether the suit was properly instituted by the Applicants (Respondents), jointly.
(2) Whether the trial Court was right to hold the Appellants liable for breach of fundamental rights of Respondents, in the circumstances of the case

I shall consider the two Issues, together. And I start by observing that the Appellants in this Appeal appear to have completely misconceived, and changed the tenor of the suit at the Lower Court, when they belabored over the issue of establishment of title to the land, as a condition for entitling the Respondents to assert right over the property, they were claiming right to seek redress (compensation) for violation of their fundamental rights, under the Sections 43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria.
The facts of this case show that the Respondents (as Applicants) were allocated spaces or plots, to build stalls or stores at what

became ENSEPA Mini Shops, at the Murtala Mohammed Park, Works Road, Enugu, by the Enugu State Environmental Protection Agency (ENSEPA), an Agency of the Government of Enugu State; the Appellants (1st and 2nd) had offered the said spaces to Respondents, through their said Agent (ENSEPA) and Respondents were allocated the said stall/shops. Respondents had been given/shown the site plan and prototype drawing of the proposed mini shops, as prepared by ENSEPA and forwarded to Enugu North Town Planning Authority, which granted the approval in 1997, with the prototype plan/drawing, with area of plot 28861.6m2. The 2nd Appellant had inherited ENSEPA and the 4th Appellant was carved out from the 2nd Appellant.
The Respondents had paid the necessary approved fees, as demanded by the Appellants for the stalls/shops, including:
(1) Sanitation Rate;
(2) Sanitation rate payment fee or N100 for 3 years;
(3) Development Rate;
(4) Rent payment of N100 at the end of every month from August 1999;
(5) (The structure was valued N90,000 as at 1999) and they paid;
(6) Non-refundable fee.

Appellants later demolished the stalls/shops built by Respondents, and which the Respondents occupied.
The Respondents, in the name of ENSEPA Mini Shop Owners Association, sought the services of TADE EZEORAH & ASSOCIATES, Estate Surveyors and Valuers Property Consultant, to value their demolished property and the firm valued the property at N850,000.00 each and issued certificates, therefore, to each, of the Respondents. The rental value of each of the Respondents shop was N120,000 per annum. The trial Court had found Appellants liable for breach of Respondents Fundamental Rights.
Appellants in this Appeal argued that the Respondents had no valid title to the property they were claiming right over; that they (Respondents) were licencees, and that the Fundamental Right was not the principal action/relief sought by the Respondents; Appellants argued that the Respondents were licencees and so could not claim title over the property to entitle them to claim for breach of fundamental rights, under Section 43 and 44 of the 1999 Constitution.
As earlier observed in this judgment, I think all the arguments of Appellants and cases cited about the need to establish title to the land on which Respondents

claim breach of fundamental rights, were, completely, misconceived and misplaced, as an applicant does not need to establish title of the land he occupies, before he can take out a case to enforce his fundamental rights against whoever violates his right of occupation of the land/property, pursuant to Sections 43 and 44 of the Constitution; as an occupier or one in possession he can apply for enforcement of his fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules, 2009. This is because, one who is in rightful occupation or possession of property, being an allottee of the property, and who built the store/stall, demolished by assailant; or one who is a tenant, chased out, unlawfully, in a manner that deprives him of his right of peaceable enjoyment of the use of the property he is entitled to, can bring an action to enforce his fundamental right, thereto, where his fundamental rights are violated, in my opinion, as long as his unexhausted rights in the property, lasts.
Sections 43 and 44 of the 1999 Constitution, state:
43. Subject to the provisions of this Constitution, every citizen shall have the right to acquire and own immovable property anywhere in Nigeria.

44(1) – No moveable property or any interest in an immovable property shall be taken possession of, compulsory and no right over or interest in any such property shall be acquired compulsory in any part of Nigeria, except in the manner and for the purposes prescribed by a law, among other thing:
a) Requires and prompt payment of compensation therefor; and
b) Gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a Court of law or tribunal or body having jurisdiction in that part of Nigeria.”
Of course, the above Constitutional provision, as held by the trial Court, encompassed the Respondents’ interest in the demolished allolled stalls in their lawful possession, and protected same from compulsory acquisition and/or demolition by the Appellants, without compensation. In the case of Master Vs Mansur &Ors (2014) LPELR – 23440 CA, it was held that:
“… compulsorily taking possession of is not limited to cases of compulsory acquisition under the public Lands

Acquisition Decree. The word “compulsory” simply means, “having the force of compulsion” or “to compel”. The word “compulsory” in the first part of Section 40(1) of the 1979 Constitution, aforesaid, simply refers to situations where a citizens land is forcefully taken possession of. The situation covers the circumstances of this case, where the appellant, using their powers as a statutory corporation of Imo State Government, continues to forcefully occupy the respondents land and was even issuing public notices to chase away the respondents from their land…”
(Section 40(1) of the 1979 Constitution is equivalent of Section 44(1) of the 1999 Constitution). See also Adeyemi –Bero Vs Lagos State Development Property Corporation & Anor (2012) LPELR – 20615 SC.
Appellants did not deny the compulsory acquisition and demolition of the Respondents stores/stalls, but claimed that their (Appellants) Agent, ENSEPA, which allocated the spaces to build stalls to the Respondents, acted ultra vires, when it allocated the property spaces to the Respondents to build the stalls/stores.

They also argued that the Respondents lacked statutory right to the property; that the Respondents were illegal occupiers of property at Murtala Mohammed Park, Works Road, Enugu; that the Government of Enugu State needed to restore the Park(s). See the Counter-Affidavit of the Appellants (pages 182 – 185 of the Records of Appeal).
I think the argument that the Agency of Appellants (ENSEPA) acted ultra vires their powers, when it allocated the property to Respondents to build stalls/stores, rather sounds self-defeating, strange and unhelpful to Appellants, in my view, especially as Appellants tried to disown responsibility for the said acts of their Agent, which they (Appellants) unleashed on the public, including Respondents, to relate with, in contractual relationships in the name of the Government, and they collected monies from Respondents and located them on the land, caused them to develop same (building the stalls/stores), only for Appellants to demolish, with impunity, and try to deny the obvious relationship! That was sad denial of responsibility and very wrong. The said use of force against the Respondents was a clear violation and breach of Respondents’ fundamental rights, in my opinion, just as the trial Court held.

There is no doubt that, under the Land Use Act, 1978, the Governor of Enugu State has right of control and Custody of the entire lands in the State in trust for the people. The Governor can grant or revoke the right of occupancy on any portion, but the law also spells out how that can be done, lawfully. And where it has to do with revocation of right of occupancy (which must be for overriding public interest), the law stipulates the need for notification of the land holder and for compensation. See Section 44(1) of the 1999 Constitution; Nkwocha Vs Gov. of Anambra State & Ors (1984) LPELR – 2052 (SC).
In the case of Adegunle Vs The Governor of Lagos State & Ors (2019) LPELR – 48013 CA, my lord, Garba J.C.A. (as he then was – now J.S.C.) said:
“… Section 28 of the Land Use Act, empowers the Governor of a State to revoke rights of occupancy over land situate in a State for overriding public interest. It is expedient to call in the provisions of the Section for full appreciation of the powers provided therein… The exercise

of the powers by the Governor to revoke a right of occupancy over a piece or parcel of land, personal or communal, is what has become known as compulsory acquisition of land by Government. Because the exercise of the power and authority to compulsorily acquire land by way of revocation involves, affects and expropriate personal or communal rights of person(s) or communities in question, guaranteed by the provisions of Section 44(1) of the Constitution, the attitude of the Courts over the years, has been to interpret the relevant statutory provisions under which the powers are exercised in order to ensure that the procedure stipulated therein are strictly complied with in the acquisition… Tobi J.S.C., in C.S.S. Bookshop Ltd Vs Reg. Trutees of Muslim Comm. In Rivers State (2006) 11 NWLR (Pt.992) 530, stated the position, thus:
“The case law is in great proliferation. Any provision of the law which gives or governs compulsory acquisition of a person’s property must be construed by the Court “fortissimo contra preferentes” Such a statute should be construed by the Court, strictly, against the acquiring authority and sympathetically

in favour of the complainant or the owner of the property against any irregularity in the procedure for acquisition as laid down by the enabling statute… These judicial authorities are unanimous that for a compulsory acquisition of land by the Governor or Government to be valid and legally effective to extinguish the existing right over a piece or parcel of land, the provisions of the Land Use Act and as the case may be, other enabling statutes on the procedure provided for the acquisition, must be strictly followed and observed in the process of acquisition.”
I, therefore, agree completely with the learned trial Judge when he held:
“The finding of this Court therefore is that no matter the limited nature of the applicants’ interests of the various stalls in this case, they had an interest or right in the stalls by virtue of the allocations given them and which is protected in a Court of law. The right in the applicant is “an interest” in immovable property, which by Section 44 of the Constitution, is to be compensated upon a compulsory acquisition for unexhausted improvements, in line with the Land Use Act

1978… I have taken all the defences raised by the Respondents in this action and to conclude, I do not find any merit in these defences. The finding of the Court is that the Respondents violated the Applicants’ right to property in Section 43 of the Constitution when it demolished their stalls at Works Road, Murtala Mohammed Park, Enugu and did not pay compensation.” Pages 220 – 221 of the Records.”

It should also be noted that Appellants did not appeal against those findings of the trial Court, but rather repeated, on appeal, the same defences which the trial Court considered and found uninspiring, namely; their claim that Respondents did not have title to the property to entitle them to compensation, and that ENSEPA acted ultra vires, when it issued Respondents with the allocation papers of the property. We have stated the law, repeatedly, on the consequences of failure to appeal against finding/holdings of Court, but repeating the same arguments, raised at the lower Court, on appeal; that the finding/holding of the lower Court remains, binding and conclusive. See Nmanumeihe Vs Njemanze (2016) LPELR – 40212 (CA);

Durbar Hotel Plc Vs Ityough & Ors (2016) LPELR – 42650 (SC); Ezike Vs Egbuaba (2019) LPELR – 46526 SC.
In the case of Nwachukwu & Ors Vs Atata & Ors: CA/OW/178/2018, delivered by this Court on 14/12/2020, we held:
“I had earlier said that Appellants did not appeal against the Salient issues resolved in the case, and the findings of facts, thereof. Just as submitted by the Learned Counsel for the Respondents, Appellants’ Counsel merely reproduced the same issues Appellants raised at the trial Court, and the arguments they canvassed on those issues at the trial Court, in this Appeal, without impeaching the decision of the trial Court on those issues, that is, without attacking the resolutions of the trial Court on those issues. The law is trite, that a finding or holding of a Court, not appealed against, remains binding and conclusive. See Nmanumeihe Vs Njemanze (2018) LPELR – 40212 CA; CPC Vs INEC (2011) 18 NWLR (Pt.1279) 493.”

Appellants have also raised the issues of the suit not being competent, on the ground that the suit was mis-jointly brought before the Court. Counsel argued that the trial Court was

wrong to entertain the suit – “the application of the 34 Respondents when the subject matter and interest of the parties are different. The stalls which are the subject matter are different, likewise ownership.” (See page 23 of the Appellants’ Brief)
I could not see where Appellants raised any such issue at the trial Court, meaning that, this issue does not flow from the judgment appealed against. By law, a ground of Appeal and issue thereon must flow and derive from the decision of the Court, appealed against, touching on the ratio decidendi of that decision. See Anozia Vs Nnani & Ors (2015) LPELR – 24277 (CA); (2015) 8 NWLR (Pt.1461) 241; Nwaigwe & Anor Vs Amaechi & Ors (2017) LPELR – 43080 (CA); Nze Vs Aribe (2016) LPELR – 40617 (CA); Shettima Vs Goni (2012) 18 NWLR (Pt.1279) 413; Ajibulu Vs Ajayi (2013) LPELR – 21860 (SC).

I also think Appellants were in error, to say that the 34 Applicants were wrong to bring this suit, together, alleging misjoinder of parties. Parties are rather always encouraged to come together, either as individuals or as a group and/or in representative capacity,

when they have a common interest or grievance, seeking redress in Court. It would even amount to multiplicity of actions and abuse of the Court process, in my view, if the parties (like the 34 Applicants) who have identified their common interest and grievance in the suit, were to have filed separate actions – 34 Applications, in the same Court, seeking the same reliefs, thereby overwhelming and over burdening the Court, and increasing the cost of litigation and the judicial cost/time!
In the case of Nzeribe Vs Nzeribe & Anor (2013) LPELR – 21930, it was held:
“The Rules in the High Court (Civil Procedure) Rules of the Federal High Court and High Courts of the States primarily permitting joinder of parties or joinder of actions are designed primarily to prevent multiplicity of actions and to avoid delay, and thus save the parties unnecessary costs and expenses.
In other words, the primary purpose of joinder of parties is to avoid multiplicity of actions, so as to save time and expenses of the litigants in the judicial process.” See alsoOgolo & Ors Vs Fubara & Ors (2003) 11 NWLR (Pt.831) 231; Aga & Ors Vs Onah & Ors (2012) LPELR – 22103.

As earlier stated in this judgment, persons who have a common interest in a suit and/or common grievance are permitted to come together, to invoke the remedial powers of the Court. See the case of Reg. Trustees of National Association of Community Health Practitioners of Nigeria & Ors Vs Medical and Health Workers Union of Nigeria & Ors (2008) ALL FWLR (Pt.412) 1013, where the conditions for joinder of parties in an action were stated, that:
(1) “The right of the relief must, in each case be in respect of or arise out of the same transaction.
(2) There must be some common question of law or facts.”
See also the recent decision of this Court in the case of Onwuekwe Vs Eddy Hi-Tech Engineering Ltd & Ors (2020) LPELR – 51950 (CA), where we held:
“The law is also trite on how to fault the capacity of a party to bring or defend a Suit. By Order 13 Rule 12(1) of the High Court (Civil Procedure) Rules of Imo State 2017: “where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued on behalf of or for the benefit of all persons so interested.” See also Durbar Hotel Plc Vs Ityough (2016) (supra).

I think the principle relating to representative action also governs a suit by two or more Applicants, in a Fundamental Rights action, once their common grievance and common interest originated from the same factual situation, like in this case, where the 34 Applicants (Respondents) were allocated stalls or spaces to build shops at the park; they established an association, together and held their interest, together and the cause of action (demolition of their stories) also happened at the same time, at the instance of the Appellants, throwing them (Respondents) into common grievance and they had common interest in the Suit!
By Order 13 Rule (1) of the Fundamental Rights (Enforcement Procedure Rules 2009:
“Any person or body who desires to be heard in respect of any human right application and who appears to the Court to be a proper party to be heard, may be heard, whether or not the party has been served with any of the relevant processes, and whether or not the party has any interest in the matter,”

That shows the application can be brought by individual person or a body (of persons), once they have common interest or common grievance in the matter.
The preamble to the Fundamental Rights Enforcement Procedure Rules 2009, Section 3 (d) and (e) state that the Court shall encourage and welcome public interest litigation in human rights field and that no human rights case may be dismissed or struck out, for want of locus stand.
In the case of Ohanedum & Anor vs C. O. P Imo State & Ors (2015) (PELR-24318 (CA), it was held:
“The Court has a duty to protect the fundamental rights of citizens and must not permit any violation, for whatever reason, unless as stipulated in the law. See Enukeme vs Mazi (2014) LPELR-23540 (CA) which analysed the preamble to the 2009 Fundamental Rights (Enforcement Procedure) Rules, which says:
“The Court shall constantly and consciously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given it by the Rules or any other law and whenever it applies or interprets any rule….And the Rules must be applied and interpreted for the

purpose of or with a view to advancing and realizing the rights and freedom contained in them and affording the protection intended by them.”
That does not appear to permit truncating the rights of Applicants for technical reasons. I do not therefore think the interest of justice in a fundamental rights action can be defeated or truncated by allegation, on appeal, that the Applicants, who had a common interest and/or common grievance in the violation of their fundamental rights, brought a joint action, not separate actions! Such holding would, completely, negate the essence and purpose of the 2009 Fundamental Rights (Enforcement Procedure) Rules, in my opinion.

After all, the law is also that a judgment is not defeated by reason of non-joinder or misjoinder of parties. See Order 8 Rule 10 of the High Court (Civil Procedure) Rules, cited in the case of Ayankoya & Ors vs Olukoya & Anor (1996) LPELR-669 (SC) (1996) (Pt.440) 1, where Adio J.S.C., said:
“By Virtue of Order 8 Rule 10 of the High Court (Civil Procedure) Rules, no cause or matter can be defeated by reason of the misjoinder or non- joinder of parties, and the Court is

empowered in every cause or matter to deal with matter in controversy, so far as regards the rights and interests of the parties actually before it.” See also Bello vs INEC & Ors (2010) LPELR-767 (SC); Okoye & Ors vs Nigerian Construction & Furniture Co. Ltd & Ors (1991) LPELP-2509(SC).

I find no merit in this Appeal and so resolve the Issues against Appellants and dismiss the Appeal.
Appellants shall pay the cost of this Appeal assessed at One Hundred Thousand Naira (N100,000.00), only, to the Respondents.

AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading in advance, the Judgment just delivered by my Learned Brother, ITA GEORGE MBABA, J.C.A. and I agree that the appeal is unmeritorious and should be dismissed.

I dismiss the appeal and abide by the consequential orders contained in the lead Judgment, including order as to costs.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ITA GEORGE MBABA, J.C.A. and I totally endorse the reasoning and conclusion therein.

The right to property is by the Constitution of the land and any interference therewith must be strictly in accordance with the law. Interference with property rights of citizens vi et armis by governmental bodies must be depreciated if the rule of law is to be enthroned.

For the more detailed reasoning in the lead judgment, I equally hold that the appeal lacks merit and it is accordingly dismissed.
I adopt the consequential orders in the lead judgment as mine.

Appearances:

MRS U.M. OKEJI (C.L.O. ENUGU) For Appellant(s)

BONIFACE N. UGWU ESQ. For Respondent(s)