NIGERIAN NATIONAL PETROLEUM CORPORATION v. MALLAM IDI ZARIA & ANOR
(2014)LCN/6796(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of January, 2014
CA/K/102/2010
RATIO
WHEN DOES TIME BEGIN TO RUN FOR THE PURPOSE OF APPLICATION OF A LIMITATION LAW WHERE THE INJURY IS A CONTINUING ONE?
The law is that, generally, where the injury complained of is a continuing one, time does not begin to run for the purpose of application of a limitation law until the cessation of the event leading to the cause of action – Abiodun v. Attorney General, Federation (2007) 15 NWLR (Pt. 1057) 359. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
WHETHER THE FEDERAL HIGH COURT HAS JURISDICTION OVER LAND MATTERS
The Federal High Court has no jurisdiction over land matters, irrespective of the parties to the action, and it cannot grant a declaration of title to land – Achebe v. Nwosu (2003) 7 NWLR (Pt. 818) 103, Omotesho v. Abdullahi (2008) 2 NWLR (Pt. 1072) 526, Federal Mortgage Bank of Nigeria Ltd v. Lagos State Government (2010) 5 NWLR (Pt. 1188) 570, Nigerian Institute of Medical Research v. National Union of Road Transport Workers (2010) 12 NWLR (Pt. 1208) 328, Adetayo v. Ademola supra. The Federal High Court cannot adjudicate over a claim for compensation for land – Nkuma v. Odili (2006) 6 NWLR (Pt. 977) 587. It also cannot adjudicate over an action in trespass to landed property – Adetona v. Zenith International Bank Plc (2009) 3 NWLR (Pt. 1129) 577, Oladipo v. Nigeria Customs Service Board supra.Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
WHETHER A COURT MUST READ THE TOTALITY OF THE PLEADINGS OF THE PARTY IN DETERMINING THE CASE MADE BY A PARTY
It is trite law that in determining the case made by a party, a court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party – Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) 1 and Mobil Oil Plc v. Drexel Energy and Natural Resources Ltd (2004) 1 NWLR (Pt. 853) 142. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
NIGERIAN NATIONAL PETROLEUM CORPORATION Appellant(s)
AND
1. MALLAM IDI ZARIA
(Suing for himself and as the Representative of all the Owners of Farmlands and Houses (otherwise known as Members of the Fadama Farmers Association)
2. MESSRS I. IDI & PARTNERS Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the leading Judgment): This is an appeal against the judgment of the Federal High Court sitting in Kaduna in Suit No. FHC/KD/CS/19/1998 delivered by Honourable Justice A. M. Liman on the 10th of August, 2009. The action in the Lower Court was commenced by the first Respondent, as plaintiff, on behalf of the members of Fadama Farmers Association against the Appellant, as defendant.
The case of the first Respondent before the lower Court was that they were at all material times the owners and persons entitled to possession of the land and premises situate at and known as “along River Romi Area” measuring 918.237 acres and comprising of eleven villages. It was their case that in 1992, the Appellant through its servants, agents and/or privies wrongfully entered into the said land and premises and took possession, polluting same with oil spills and other harmful chemicals in the process and made the land and premises inhabitable and un-cultivatable and destroyed their farmlands and crops worth over N196,017,647.00 and that the Appellant threatened and intended to remain in wrongful possession thereof. The first Respondent claimed for:
i. An order of injunction to restrain the Defendant by itself, its servants or agents or otherwise howsoever from remaining on or continuing in occupation of the said lands and premises.
ii. The sum of N196,017,647.00 as damages.
iii. Possession of the said lands and premises without paying compensation or adequate compensation to the Plaintiffs, despite repeated demands and threats of litigation.
iv. An injunction restraining the Defendant from further polluting and/or in any other way destroying the said lands and premises.
Alternatively;
The sum of N196,017,647.00 damages as compensation and/or damages for trespass.
The first Respondent stated on the pleadings that they inherited the said farmlands from their ancestors who had been the owners thereof from time immemorial and had been living, cultivating and depending on the said farmlands as their only means of livelihood. They stated that the Appellant trespassed and was still trespassing on their farmlands by fencing and building thereon, by spillage of oil and other chemicals on the land and by the destruction of both their permanent and seasonal crops and that the trespass started in 1992 and they had been negotiating with the Appellants since them for the payment of adequate compensation but nothing yet had been agreed. They stated that the Appellant did not serve them with any notice of compulsory acquisition of their farmlands.
The Appellant filed an amended statement of defence and it denied the entire case of the first Respondent and stated that it did not at anytime trespass on the farmlands of the first Respondent and that it would challenge the locus standi of the first Respondent to commence the action. It stated that in order to fortify the security of its refinery in Kaduna, it applied for the strip of land in dispute in 1992 and that the land was duly acquired by the Kaduna State Government for its use as a buffer zone and that it paid full and adequate compensation through its Estate Agents, the second Respondent, and that it was not in a position to issue notice of compulsory acquisition. It stated that the suit was statute barred by the provisions of the Public Officers Protection Law and the NNPC Act as it was commenced in 1998.
The Appellant, with the leave of the lower Court, issued a Third Party Notice to the second Respondent and consequent on which the second Respondent filed a statement of defence. The second Respondent admitted that the named first Respondent owned a farmland in the area acquired as buffer zone around the Appellant’s refinery and River Romi Channel but denied that the named first Respondent represented other land owners in the area. It was its case that the Appellant did not trespass on the said parcel of land as the farmland was validly acquired for overriding public interest and for which the prescribed and laid down procedure for acquisition was strictly or substantially followed. It stated that a fair and adequate compensation in line with prevailing law at the time was ascertained to be paid to all the farm/land owners of the acquired land including the first Respondent and that enumeration was carried out in February, 1993 and seven thousand seven hundred and ninety five claimants were identified. It stated that compensation was paid and collected by seven thousand seven hundred and sixty three claimants while nineteen, including the named first Respondent, refused to collect their compensation on the ground that they would be deprived of continuing to farm in the area and twelve other claimants who had structures on the their lands rejected the compensation on the ground that the amount was inadequate. It set out the names of the thirty one claimants who refused to collect the compensation in the schedules to the statement of defence and stated that the monies were still in its possession.
The matter proceeded to trial and at the conclusion of the trial and after the final addresses of counsel, the lower Court entered judgment wherein it nullified the compulsory acquisition of the farmlands of the first Respondent for non-compliance with the provisions of Section 44 of the Constitution and Section 28 of the Land Use Act and it ordered thus:
i. The Defendant (Appellant) is hereby restrained by itself, its servants or agents or otherwise howsoever, from remaining on or continuing in occupation of the said lands and premises.
ii. The Defendant (Appellant) is at liberty to pay full and adequate compensation in accordance with the provisions of Section 29 of the Land Use Act, that is, that the compensation must be for the value at the date of revocation of the Plaintiff’s (first Respondent’s) unexhausted improvements.
The lower Court continued thereafter thus:
“On damages for trespass, I am of the view that the Plaintiffs have proved illegal acquisition of their land since 1992. The nature of his trespass involves the deprivation of plaintiffs’ right of user, which essentially is seasonal farming and must have cost them a substantial loss. The law is settled that trespass is actionable without proof of damage. In this case, the Plaintiffs have tendered Exhibits A, A1 – A11 which though the Defendant challenged their authenticity. It is clear that the value and land holding for each individual holding is well documented. I have been asked not to place any weight on this document, but no authority bearing on the arguments has been proffered. The bottom line is that the document was tendered and admitted in evidence without objection. The witness who tendered it stated that he took part in producing the document. The absence of a signature in my view does not render it inadmissible in so far as it does not create any legal right or duty or liability against any person. Accordingly, the objection as to the admissibility of the document is hereby overruled…
In assessing damages for trespass to land it is settled that where a Defendant has by trespass made use of a Plaintiff’s land, the Plaintiff is entitled to receive by way of damages such sum as should reasonably be paid for the use. It is immaterial that the plaintiff was not in fact infected or prevented from himself using his land … It is therefore my view that the sum of N150,000,000.00 is a fair assessment as damages for trespass. This is without prejudice to the Defendant agreeing on the proper scale of payment of compensation.
On the liability of the Third Party, the Third Party had admitted that 31 people refused to collect their compensation which includes the Plaintiff, not having paid their respective compensation, the Third Party is liable to refund the amount assessed for those who refused to receive their compensation. As to the other amounts paid by the Third party, since the Defendant has not alleged non-Payment, no liability shall fall on the Third Party to refund on account of this judgment. Accordingly, the claim against the Third Party by the Defendant partially succeeds….” (see Pages 209 to 210 of the records)
The Appellant was not satisfied with the judgment and it caused its Counsel to file a notice of appeal dated the 26th of August, 2009 against it. The notice of appeal contained eleven grounds of appeal.
In ventilating the grievances of the Appellant before this Court, its Counsel filed a brief of arguments dated the 14th of November, 2011 pursuant to an extension of time granted by this Court on the 19th of October, 2011 and it consisted of thirty three pages. Counsel to the first Respondent filed a brief of arguments consisting of thirty pages and dated the 3rd of February, 2012 in response and the brief of arguments was deemed properly filed on the 28th of November, 2013. Counsel to the Appellant reacted by a reply brief of arguments dated the 22nd of December, 2012 and filed on the 9th of January, 2013. The second Respondent did not file any brief of arguments in the appeal. At the hearing of the appeal, Counsel to the parties adopted their respective briefs of arguments.
Counsel to the Appellant distilled three issues for determination in his brief of arguments and these were:
i. Whether the trial Court had jurisdiction to entertain this suit.
ii. Whether the learned trial Judge could validly deliver the judgment in the suit four years seven months after the rendering of the final addresses in this suit and during court vacation and after his transfer to another Judicial Division.
iii. Whether the first Respondent’s claims and the trial Court’s conclusion were proper and proved.
Counsel to the first Respondent agreed that there were three issues for determination in the suit. Counsel agreed with the first issue as formulated by the Appellant but reformulated the second and third issues thus:
i. Whether the delivery of the judgment outside a period of ninety days occasioned a miscarriage of justice.
ii. Whether the first Respondent established their case to entitle them to the reliefs sought.
This Court must say that it prefers the issues for determination as re-formulated by the Counsel to the first Respondents and these issues shall form the basis for the determination of this appeal and shall be resolved seriatim.
Counsel to the Appellant presented arguments on the first issue for determination on three fronts – subject matter jurisdiction, pre-action notice and limitation law.
Counsel prefaced his arguments on subject matter jurisdiction with the statement of law that it is the reliefs as contained in a plaintiff’s claims that determines the jurisdiction of the court and he referred to the case of Incorporated Trustees Ladipo Main Market Association v. Obiekwe (2006) All FWLR (Pt. 308) 1255. Counsel also said that the indices of jurisdiction and competence of a Court have been comprehensively laid out by the Supreme Court in Attorney General, Lagos State v. Dosunmu (1989) All NLR 504. Counsel thereafter traversed through the claims of the first Respondent before the lower Court and he referred to the provisions of section 251 (1) of the 1999 Constitution, which he said, subscribed the jurisdiction of the Federal High Court and submitted that for the Federal High Court to have jurisdiction in a matter, even where the Federal Government or any of its agencies is a party, the cause of action must arise from or be related to any of the items specified in section 251 (1) of the constitution; he referred to the cases of Onuorah v. KPRC (2005) 6 NWLR (Pt. 921) 393, Minister of Works v. Tomas Nig. Ltd (2002) 2 NWLR (Pt. 752) 788 and Adelekan v. Ecu-Line (2006) 12 NWLR (Pt. 993) 33. Counsel stated that any action in respect of title or right to occupy land arising from a decision or action of the Federal Government or any of its agencies would not qualify and that the Federal High Court thus lacked jurisdiction to entertain such a matter and he referred to the cases of Okoroma v. Uba (1999) 1 NWLR (Pt. 587) 359 and Achebe v. Nwosu (2003) 7 NWLR (Pt. 818) 103.
On limitation law, Counsel to the Appellant stated that where it is held that the Appellant is an agency of the Federal Government, it means that it is a public officer and consequently, by the provisions of section 4 of the Public Officers Protection Act, an action against it must be instituted within three months after the action arose; he referred to the case of Ibrahim v. Judicial Service Commission, Kaduna State (1998) 14 NWLR (Pt. 584). Counsel stated that from the pleadings of the first Respondent and the documentary evidence led at trial, Exhibits B, F, H to H4, it was clear that the cause of action in the instant case, payment of compensation, arose between 1992 and 1994 and, this suit was commenced on the 13th of February, 1998, clearly outside the three months period. Counsel stated further that in the event that the provisions of the Public Officers Protection Act are not applicable, then the provisions of Section 12(1) of the NNPC Act which prescribed twelve months limitation period within which to sue the Appellant applies and that this action was commenced outside the twelve months period and it is statute barred; he referred to the cases of NNPC v. Abdulrahman (2006) 12 NWLR (Pt. 993) 202 and Obaseki v. Orukwo (2007) 17 NWLR (Pt. 1062) 138.
On the question of pre-action notice, the arguments of Counsel to the Appellant was pretty vague on whether or not the Appellant raised and canvassed the issue before the lower Court and, if raised and canvassed, how it was done and all the Counsel said was that the lower Court conceded in its judgment that it was properly raised. Counsel thereafter berated the treatment of the issues of limitation law and pre-action notice by the lower Court and stated that the lower Court ought not to have discountenanced them simply because they were not pursued at the address stage, and that even if this was true, the lower Court could have ordered for further address on them; he referred to the case of Elugbe v. Omokhafe (2004) 11 – 12 SC 60. Counsel stated that they were not issues that the lower Court should have glossed over due to the indolence of Counsel. Counsel urged this Court to resolve the first issue for determination in favour of the Appellant.
Counsel to the first Respondent responded to the first issue for determination on the three fronts it was argued by Counsel to the Appellant. On subject matter jurisdiction, Counsel to the first Respondent traversed through the claims of the first respondent before the lower Court and the provisions of Section 251(1) of the Constitution and Counsel said that the Supreme Court had held that the Appellant was an agency of the Federal Government and he referred to the case of Idoniboye v. NNPC (2003) 2 NWLR (Pt. 805) 559. Counsel stated that interplay of all these show that the claims before the lower Court which were for damages and injunction against the action of the Appellant, an agency of the Federal Government, fell within the exclusive jurisdiction of the Federal High Court as provided in Section 251 (1) (r) of the 1999 Constitution; he referred to the case of NEPA v. Edegbero (2002) 18 NWLR (Pt. 798) 79 and quoted extensively therefrom. Counsel stated that the cases relied on by the Counsel to the Appellant were inapplicable to the facts of the instant case as the claims therein were not for damages and injunction. Counsel stated that the assertion of Counsel to the Appellant that the case before the lower Court involved compulsory acquisition of land by the Kaduna State Government was incorrect and that it is the case of a plaintiff that determines jurisdiction of the court and not the case of the defendant; he referred to the Abacha v. Fawehinmi (2006) 6 NWLR (Pt. 660) 228.
On limitation law, Counsel stated that the cause of action of the first Respondents against the Appellant in the lower Court was for continuous trespass and that they sought for an injunction to restrain the Appellant from remaining on or continuing in occupation of their land. Counsel referred to the provisions of the Public Officers Protection Act and the NNPC Act, which he said were similar, and stated that they exempted claims relating to continuous damage or injury and he referred to the cases of Onagoruwa v. Akinremi (2001) 13 NWLR (Pt. 729) 61 and Chukwuma v. Ifeloye (2008) 18 NWLR (Pt. 1118) 204 on the definition of continuing trespass. Counsel submitted that the action was not statute barred.
On pre-action notice, Counsel stated that non-service of pre-action notice was a special defence that must be raised on the pleadings by a defendant desirous of relying on it and that where it is not so raised, the defendant would be deemed to have waived it and he referred to the case of F & F Farms (Nig) Ltd v. NNPC (2009) 12 NWLR (Pt. 1155) 387. Counsel stated that the Appellant did not plead the non-service of pre-action notice in its amended statement of defence and he cannot now raise it before this Court.
This Court will resolve the first issue for determination, whether the lower Court, the Federal High sitting in Kaduna, had jurisdiction to entertain the suit, on the three legs it was argued by the parties. On the subject matter jurisdiction, it must be noted that this point was not raised and, canvassed in the lower Court by the Appellant and the lower Court did not rule on it. It is trite that, as a general rule, an appellate court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower court. An appellant therefore is only entitled to contest the judgment of a trial court only on the issue properly raised before the lower court and pronounced upon by that court – Oshatoba v. Olujitan (2000) 5 NWLR (Pt. 655) 159, Global Transport Oceanico v. Free Enterprises Nigeria Ltd (2001) 5 NWLR (Pt. 706) 426, V S Steel (Nig) Ltd v. Government of Anambra State (2001) 8 NWLR (Pt. 715) 454, Akinyanju v. University of Ilorin (2005) 7 NWLR (Pt. 923) 87 and Netufo v. Omoolorun (2005) 12 NWLR (Pt. 938) 1. A party is not allowed to maintain on appeal a different case from that pursued at the trial court; he must be consistent in stating his case – Adeleke v. Oyo State House of Assembly (2006) 16 NWLR (Pt. 1006) 608, Emmanuel v. Gomez (2009) 7 NWLR (Pt. 1139) 1, Oshoboja v. Amida (2009) 18 NWLR (Pt. 1172) 188, Njaba Local Government Council v. Chigozie (2010) 16 NWLR (Pt. 1218) 166 and Ebia Construction Ltd v. Costain (West Africa) Plc (2011) 6 NWLR (Pt. 1242) 110. However, case law authorities recognise that an issue of subject matter jurisdiction is an exception to this general rule and it can be raised and taken at any stage of the proceedings in a matter and even on appeal for the first time – see for example, Cotecna International Ltd v. Ivory Merchant Bank Ltd (2006) 9 NWLR (Pt. 985) 275, Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003) 466 and Nigerian National Petroleum Corporation v. Orhiowasele (2013) 13 NWLR (Pt. 1371) 211. The issue was properly raised by the Appellant in this appeal as one of the grounds of appeal. This Court is thus obligated to consider it.
Now, jurisdiction is the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties. Jurisdiction defines the power of courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority. It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute. A court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker. A court cannot do more than this – Anibi v. Shotimehin (1993) 3 NWLR (Pt. 282) 461, Elelu-Habeeb v. Attorney General, Federation (2012) 13 NWLR (Pt. 1318) 423, Madumere v. Okwara (2013) 12 NWLR (Pt. 1368) 303, Opara v. Amadi (2013) 12 NWLR (Pt. 1369) 512.
It must be noted that the action in the lower Court, in the instant case, was commenced in 1998 and the jurisdiction of the Federal High Court as at then was governed by the provisions of Section 230(1) of the 1979 Constitution as amended by Decree 107 of 1993 while the jurisdiction of the High Court was governed by the provisions of Section 236 of the 1979 Constitution. The provisions of Section 230(1) of the 1979 Constitution were reproduced as Section 251 (1) of the 1999 Constitution while Section 236 of the 1979 Constitution was reproduced as Section 272 of the 1999 Constitution. The records of appeal show that trial in this suit in the lower Court commenced on the 10th of February, 2004. The present position of the law, according to the Supreme Court, is that it is the law in force at the time of commencement of trial in a matter that governs the jurisdiction of a court to hear and determine the matter – Olutola v. University of Ilorin (2004) 18 NWLR (Pt. 905) 416, Osakue v. Federal College of Education (2010) 10 NWLR (Pt. 1201) 1, Obiuweubi v. Central Bank of Nigeria (2011) 7 NWLR (Pt. 1247) 465 and Nigerian National Petroleum Corporation v. Orhiowasele (2013) 13 NWLR (Pt. 1371) 211. Thus, notwithstanding that the action in the lower Court was commenced in 1998, it is the provisions of the 1999 Constitution that will be relied on in resolving the issue of the subject matter jurisdiction of the lower Court in this appeal as the trial in the suit was commenced after the coming into effect of that Constitution.
The jurisdiction of the Federal High Court is donated by the Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria. The opening part of the section reads:
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil cases and matters”
The provision then proceeded to list eighteen specific areas in paragraphs (a) to (r) where exclusive jurisdiction is conferred on the Federal High Court and, it concluded in paragraph (s), and “such other jurisdiction civil or criminal and whether to the exclusion of any other court or not as may be conferred upon it by an Act of the National Assembly”. What this provision does is that it made the Federal High Court a court of enumerated jurisdiction, and not one of general jurisdiction, and as such for the Federal High Court to have jurisdiction over a matter, the subject matter of action must fit into one of the enumerated areas of its jurisdiction – Anao v. Sun Publishing Ltd (2013) 3 NWLR (Pt 1341) 399, Merill Guaranty Savings & Loans Ltd v. WorldGate Building Society Ltd (2013) 1 NWLR (Pt. 1336) 581, Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274. This point was succinctly made by Nweze, J.C.A. in Oladipo v. Nigerian Customs Service Board (2009) 12 NWLR (Pt. 1156) 563 at page 585 thus:
“…. Before we return to this question, we must first return to the implication of the drafting technique in Section 251 (supra). The point must be noted that the draftsman of that section painstakingly itemized the subject matters that fall within the exclusive jurisdiction of the Federal High Court. In all, that section vested exclusive jurisdiction on the Federal High Court in eighteen major items…. The implication of this technique is that the said court (Federal High Court) is actually a court of enumerated jurisdiction, that is, a court whose jurisdiction is not only delimited by statute but whose jurisdiction is delineated in relation only to the subject matter enumerated therein
It would, therefore, amount to wreaking havoc on the express letters and intendment of the said Section 251 to construe it as granting the said court a carte blanche to deal with every conceivable matter (that is, beyond those expressly enumerated ….
The effect of the circumscription of the jurisdiction of the court to those eighteen major items is that whenever the question of jurisdiction of the court is canvassed, attention ought to be focused on the subject matter of the suit. If the subject matter of the suit cannot be pitch forked into any of those eighteen major items, then that court is not the proper forum for the ventilation of the action ….”
The Courts have held that it is the case of the plaintiff as endorsed on the writ of summons and elaborated in the statement of claim or any other originating process that determines the jurisdiction of the court – Elelu-Habeeb v. Attorney General, Federation supra, Merill Guaranty Savings & Loans Ltd v. WorldGate Building Society Ltd supra Uwazurike v. Nwachukwu (2013) 3 NWLR (Pt. 1342) 503, Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274. And that the court does not look at the faces, designations or duties of the parties in a suit to determine whether or not it has jurisdiction – Dagazau v. Bokir International Company Ltd (2011) 14 NWLR (Pt. 1267) 261. Thus, where the cause of action of a plaintiff does not fit into one of the enumerated areas of jurisdiction of the Federal High Court as stated in Section 251 (1) of the Constitution, the fact that one of the parties to the action is the Federal Government or an agency of the Federal Government is irrelevant and it cannot give the Federal High Court jurisdiction over the subject matter – Onuorah v. Kaduna Refining & Petrochemical Co. Ltd (2005) 6 NWLR (Pt. 921) 393, Adeogun v. Fashogbon (2008) 17 NWLR (Pt. 1115) 149, Adetayo v. Ademola (2010) 15 NWLR (Pt. 1215) 169, Dingyadi v. Independent National Electoral Commission (2011) 10 NWLR (Pt. 1255) 347, Salim v. Congress for Progressive Change (2013) 6 NWLR (Pt. 1351) 501, Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274. It is only where both the High Court and the Federal High Court have concurrent jurisdiction over a subject matter that the fact that one of the parties is the Federal Government or an agency of the Federal Government is relevant and it is in such a situation that the decisions in cases such as NEPA v. Edegbero (2002) 18 NWLR (Pt. 798) 79 and Abia State Independent Electoral Commission v. Kanu (2013) 13 NWLR (Pt. 1370) 69 become useful – Ahmed v. Ahmed supra.
It is trite law that in determining the case made by a party, a court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party – Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) 1 and Mobil Oil Plc v. Drexel Energy and Natural Resources Ltd (2004) 1 NWLR (Pt. 853) 142. Reading the claims of the first Respondent on the writ of summons and the contents of their pleadings, it is clear that their cause of action against the Appellant alternated between trespass to their farmlands, and for which they claimed damages and injunction, and adequate compensation for the acquisition of their farmlands. Whichever way, it was a land litigation. The present position of the law is that by the provisions of Section 39 of the Land Use Act and Section 272 (1) of the 1999 Constitution, the High Court has exclusive jurisdiction in all matters relating to land located within the areas designated as urban areas and subject to a statutory right of occupancy granted by the State Government while it shares concurrent jurisdiction with the Customary Courts, the Area Courts and other courts of such equivalent jurisdiction in respect of all parcels of land located in the areas designated as rural or non-urban areas and subject to a customary right of occupancy granted by a Local Government – see for example, Aseimo v. Abraham (1994) 8 NWLR (Pt. 361) 191, Oyeniran v. Egbetola (1997) 5 NWLR (Pt. 504) 122, Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116, Oyedeji v. Akinyele (2002) 3 NWLR (Pt. 755) 586, Sanni v. Ademiluyi (2003) 3 NWLR (Pt. 807) 381, Erhunmwunse v. Ehanire (2003) 13 NWLR (Pt. 837) 353, Akanbi v. Salawu (2003) 13 NWLR (Pt. 838) 637, Okonkwo v. Okonkwo (2004) 5 NWLR (Pt. 865) 87, Attorney General, Rivers State v. Ohochukwu (2004) 6 NWLR (Pt. 869) 340, Ezukwu v. Ukachukwu (2004) 17 NWLR (Pt. 902) 227, The Minister of Works & Housing v. Shittu (2007) 16 NWLR (Pt. 1060) 351, Odetayo v. Bamidele (2007) 17 NWLR (Pt. 1062) 77, Madu v. Mbakwe (2008) 10 NWLR (Pt. 1095) 293, Idajakpa v. Ajigbereno (2009) 6 NWLR (Pt. 1136) 151, Onwuka v. Ononuju (2009) 11 NWLR (Pt. 1151) 174.
The Federal High Court has no jurisdiction over land matters, irrespective of the parties to the action, and it cannot grant a declaration of title to land – Achebe v. Nwosu (2003) 7 NWLR (Pt. 818) 103, Omotesho v. Abdullahi (2008) 2 NWLR (Pt. 1072) 526, Federal Mortgage Bank of Nigeria Ltd v. Lagos State Government (2010) 5 NWLR (Pt. 1188) 570, Nigerian Institute of Medical Research v. National Union of Road Transport Workers (2010) 12 NWLR (Pt. 1208) 328, Adetayo v. Ademola supra. The Federal High Court cannot adjudicate over a claim for compensation for land – Nkuma v. Odili (2006) 6 NWLR (Pt. 977) 587. It also cannot adjudicate over an action in trespass to landed property – Adetona v. Zenith International Bank Plc (2009) 3 NWLR (Pt. 1129) 577, Oladipo v. Nigeria Customs Service Board supra. The lower Court thus lacked jurisdiction to adjudicate over the cause of action of the first Respondent in this matter.
It is must also be mentioned, in passing, that it was essential for the first Respondent to have joined the Kaduna State Government as a party to their cause of action for adequate compensation for the acquisition of their farmlands – Mobil Oil Nigeria Ltd v. Nabsons Ltd (1995) 7 NWLR (Pt. 407) 254, Elegushi v. Oseni (2005) 14 NWLR (Pt. 945) 348 and Farojoye v. Hassan (2006) 16 NWLR (Pt. 1006) 463.
This finding of the Court on the point of subject matter jurisdiction should ordinarily conclude its deliberations on this appeal. However, in view of the fact that this Court is not the final Court in the judicial hierarchy, it is wise that it goes further to look at the other issues raised by the parties, in case it turns on a further challenge that its finding on subject matter jurisdiction is wrong – Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522, Iwunze v. Federal Republic of Nigeria (2013) 1 NWLR (Pt. 1334) 119 and University of Calabar v. Akintunde (2013) 3 NWLR (Pt. 1340) 1.
On limitation law, the Appellant pleaded in its amended statement of defence that the action of the first Respondent was statute barred by reason of the provisions of the Public Officers Protection Act and also of the Nigeria National Petroleum Corporation Act. This fact was acknowledged by the lower Court in the judgment, but curiously, the lower Court discountenanced the defence on the ground that it was not pursued at trial and was not raised and canvassed at the address stage. ‘This Court must say it is at loss to understand what the lower Court meant by that ‘the defence was not pursued at trial’; was it that the Appellant did not lead evidence to establish the defence, in which case the defence should have been dismissed for lack of proof, or what? On the statement that the defence was not raised and canvassed at the address stage, the lower Court obviously forgot that issues are joined on the pleadings, and not in written addresses, and it is trite that a trial court has an abiding duty to consider and pronounce on all issues raised before it and its judgment must demonstrate a full and dispassionate consideration of all such issues. The principle of adjudication fundamental to the administration of justice is that the court is bound to consider every material aspect of a party’s case validly put forward – Federal Ministry of Health v. Comet Shipping Agencies Ltd (2009) 9 NWLR (Pt. 1145) 193, Adeogun v. Fasogbon (2011) 8 NWLR (Pt. 1250) 427 and Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522. The lower Court was in error when it discountenanced the defence of limitation law raised by the Appellant. This Court will proceed to consider the defence in the exercise of its powers under Section 15 of the Court of Appeal Act.
The relevant provision of the Public Officers Protection Act Cap. 379, Laws of Federation of Nigeria 1990 relied upon by the Appellant is Section 2 (a) which states:
“2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution of any act or law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, law, duty or authority, the following provisions shall have effect –
(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damages or injury within three months next after ceasing thereof …”
While that of the Nigeria National Petroleum Corporation Act is Section 12 (1) and it reads:
Notwithstanding anything in any other enactment, no suit against the Corporation, a member of the Board or any employee of the Corporation for any act done in pursuance or execution of any act done in pursuance or execution of any enactment or law, or any public duties or authority, or in respect of any alleged neglect or default in the execution of such enactment or law, duties or authority, shall be or be instituted in any Court unless it is commenced within twelve months next after the act, neglect or default complained of or in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof.”
Reading the two provisions, it is clear that while the Public Officers Protection Act makes a general provision as to the limitation of time for action against public officers and public institutions, the Nigeria National Petroleum Corporation Act makes a specific provision on limitation of time for action against the Appellant. The law is that where there are two enabling provisions, one specific and the other general, the court ought to presume without more that the lawmaker has intended the specific provision to prevail over the general provision and so to govern the matter. The reason behind this rule is that the legislature in making the special provision considered the particular case and expressed its will in regard to that case, hence the special provision forms an exception importing the negative – Osahon v. Federal Republic of Nigeria (2003) 16 NWLR (Pt. 845) 89, Nigerian Deposit Insurance Corporation v. The Governing Council of the Industrial Training Fund (2012) 9 NWLR (Pt. 1305) 252, Abubakar v. Nasamu (No. 1) (2012) 17 NWLR (Pt. 1330) 407, Madumere v. Okwara (2013) 12 NWLR (Pt. 1368) 303. Thus, it is the limitation provision of the Nigeria National Petroleum Corporation Act that is relevant and governs in the instant case.
Counsel to the first Respondent argued that the action before the lower Court was in respect of continuous trespass and that as such, it is not caught by the limitation period of twelve months. Our law recognizes the concept of continuing trespass. It is continuing trespass for a person to remain on another’s land without that other’s authority or consent, so that barring defences properly raised and sustained which defeat the right of the owner of such land to complain of the continuing trespass, the landowner is always entitled to protection as appropriate. It is the feature of a continuous trespass that successive actions can be instituted from time to time in respect of its continuance – Onagoruwa v. Akinremi (2001) 13 NWLR (Pt. 729) 38, Gulf Oil Co. (Nig) Ltd v Oluba (2002) 12 NWLR (Pt. 780) 92, Anyakora v. Obiakor (2005) 5 NWLR (Pt. 919) 507, Oyebamiji v. Lawanson (2008) 15 NWLR (Pt. 1109) 122, Chukwuma v. Ifeloye (2008) 18 NWLR (Pt. 1118) 204, Obueke v. Nnamchi (2012) 12 NWLR (Pt. 1314) 327. The doctrine of continuing trespass relates to cases where something has been brought on land and wrongfully left there and it continues to cause damage. This will give rise to actions de die in diem, so long as it lasts. Thus, where the act of building by a party on another person’s land is found to be unlawful and the structures have been left on the said land, the trespass will be held to have continued as long as the structures remained on the land – Oniah v. Onyia (1939) 1 NWLR (Pt. 99) 514. This was explained by Ogwuegbu, JSC in Adepoju v. Oke (1999) 3 NWLR (Pt. 594) 154 at page 163 C-E thus:
“The learned trial Judge was right in his conclusion that the act of the defendants which led the plaintiffs to institute Suit No 11/66 in Oshun Divisional Grade ‘A’ Customary Court that terminated in the Court of Appeal on 19/5/78 as Suit No. FCA/1/162/77 was a continuing one and fresh causes of action for trespass arose after the termination of Suit No. FCA/1/162/77 (Exhibit ‘D’). The judgment in Exhibit ‘D’ ….did not terminate the continuance of the trespass which is the erection of houses on the land which the learned trial Judge found to be in the possession of the plaintiff/respondent before 1956 and the houses have continued to remain on the land while the act of erection was unlawful. There was no appeal against the finding that the land in dispute was in the possession of the plaintiff’s family.
The original erection of the houses did influence the continuance of the act of trespass and it remained a continuing trespass from the very erection of those houses. There is therefore an act of continuity of the trespass by the defendants since the houses are still on the land which the learned trial Judge found to be in the possession of the plaintiff.”
The law is that, generally, where the injury complained of is a continuing one, time does not begin to run for the purpose of application of a limitation law until the cessation of the event leading to the cause of action – Abiodun v. Attorney General, Federation (2007) 15 NWLR (Pt. 1057) 359. Also, where the continuance of damage is such that gives rise to a fresh cause of action every time it occurs, limitation law will not apply to bar action on the fresh cause of action – The Shell Petroleum Development Company of Nigeria Ltd v. Amadi (2010) 13 NWLR (Pt. 1210) 82. The case of the first Respondent before the lower Court was that the Appellant trespassed and was still trespassing on their farms lands by fencing and building thereon, by spillage of oil and other chemicals on the land and by the destruction of both their permanent and seasonal crops and that the Appellant had remained in wrongful possession of their land. This is clear allegation of continuous trespass and as such it is not caught by the provisions of Section 12 (1) of the Nigeria National Petroleum Corporation Act. The action of the first Respondent was not statute barred.
On pre-action notice, the Appellant never raised the issue in its pleadings and it only canvassed it at the address stage. Counsel to the first Respondent objected to the raising of the issue at the address stage. The lower Court in its deliberations stated thus:
“Learned Counsel for the Plaintiff contended that the failure by the Defendant to raise the objection in the pleading is fatal because the objection is in the nature of demurrer. With regard to the senior Counsel, I do not think he is correct in his submission because a challenge to jurisdiction is an objection that is extrinsic to adjudication. It is not a demurrer in the sense that demurrer relates to the pleaded facts which even if all are admitted will not entitle the Plaintiff to judgment ….
As I have earlier on stated, this objection is not a demurrer, though a point of law, it is however one that raise a jurisdictional challenge to the competence of the court. However, the nature of this objection is one that the Defendant cannot raise this late stage of address when no further evidence can be taken …” (see page 203 of the records)
The lower Court proceeded to treat the letter of demand issued by the Solicitors to the first Respondent to the Appellant dated 2nd September, 1997, Exhibit A, as a pre-action notice for action commenced on 13th February, 1998.
With respect to the learned trial Judge, he turned the law on its head and got himself confused by and entangled in semantics. There is a whole world of difference between procedural irregularity and the substantive jurisdiction of a court to hear a matter and procedural irregularity does not qualify as “a jurisdictional challenge to the competence of the court” that can be raised at anytime. Procedure for invoking the jurisdiction of court should not be confused with the authority of the court to decide matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction. It is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the court or tribunal in going into matters before it are matters of procedure regulated by procedural rules. A plaintiff who has commenced an action which on the face of it is not incompetent is deemed to have invoked the presumed jurisdiction of the court. A matter that impugns the presumed competence of the action should be raised by the opponent.
It is matters of substantive jurisdiction that that can be raised at anytime and which if resolved against a party renders the entire proceedings a nullity, not matters of procedural irregularity. Matters of procedural irregularity must be raised by a party at the earliest opportunity upon being served with the court process and before taking any further step in the matter, otherwise he will be deemed to have waived the irregularity and be foreclosed from raising it again. – Kwaa v. Kwakwa 3 WACA 176, Odu’a Investment Co. Ltd v. Talabi (1997) 10 NWLR (Pt. 523) 1, Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187, the unreported decision of this Court in Appeal No. CA/K/5/2006 – Muhammed v. Ajingi delivered on the 12th of February, 2013, Nagogo v. Congress for Progressive Change (2013) 2 NWLR (Pt. 1339) 448, Udo v. The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt. 1375) 488. The Supreme Court has held many times that non-service of pre-action notice was a matter of procedural irregularity, and not one of substantive jurisdiction, and must be raised by a party seeking to rely on it in his pleadings and that where it is not so raised, the party will be deemed to have waived it. This is predicated on the principle that where pleadings are filed, a party relying on a condition precedent must plead it and if it is not so pleaded, the party would by simple rules of pleadings be taken to have waived whatever rights he possesses on the point – Katsina Local Government Authority v. Makudawa (1971) 7 NSCC 119, Mobil Producing (Nig) Unlimited v. Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt. 798) 1, F & F Farms (Nig.) Ltd. v. Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt. 1155) 387.
The Appellant, not having pleaded the non-service of a pre-action notice, could not raise the issue at the address stage in the lower Court and the issue ought to have been discountenanced by the lower Court. The Appellant definitely cannot raise the issue in this appeal.
This takes us to the second issue for determination – whether the delivery of the judgment outside a period of ninety days by the lower Court occasioned a miscarriage of justice. Counsel to the Appellant stated that the parties in the suit delivered their written addresses before the lower Court on the 19th of January, 2005 and judgment was delivered on the 10th of August, 2009, four years and seven months thereafter. Counsel traced the history of the constitutional provisions dealing with time limit for the delivery of judgment through the years culminating in Section 294 (1) of the 1999 Constitution which mandated every Court established under the Constitution to deliver its decisions in writing not later than ninety days after close of addresses. Counsel referred to the provisions of Section 294 (5) of the Constitution which says that judgment delivered after the ninety days period will not be declared a nullity where there is no miscarriage of justice and stated that this required a party seeking to declare such judgment a nullity to show that the delay in the delivery of judgment occasioned a miscarriage of justice.
Counsel proceeded to define what amounts to miscarriage of justice and he referred to the case of State v. Ajie (2002) 8 WRN 1 and he thereafter coursed through the judgment of the lower Court and stated that whilst the lower Court reviewed the evidence of the sole witness of the first Respondent, it did not review the testimonies of the two witnesses called by the Appellant and of the sole witness called by the second Respondent. Counsel stated the reason for this was not far-fetched as the record of the testimonies of the three witnesses had disappeared from the records of the Court and were not available to the lower Court when it delivered the judgment on the 10th of August, 2009 and that it was on the order of this Honourable Court that the records of the testimonies of the three witnesses were transcribed and forwarded to this Court on 18th of July, 2011. Counsel stated that the lower Court referred to the pleadings of the parties without specifying the pleadings in question as the Appellant and first Respondent filed more than one set of pleadings and that in the course of the judgment, the lower Court used bare averments in the pleadings as it had lost focus of the entire evidence and also granted reliefs that were never claimed by the first Respondent. Counsel urged this Court to resolve the second issue for determination in favour of the Appellant.
In response, Counsel to the first Respondent reproduced the provisions of Section 294 (5) of the 1999 Constitution and stated that the law is that the mere fact that a judgment was delivered outside ninety days does not automatically render it bad unless it has occasioned a miscarriage of justice and that what would constitute miscarriage of justice depends on the facts of each case and the onus was on the party alleging miscarriage of justice to prove it and where this is not done, an appellate Court will find it difficult to declare such a judgment a nullity; he referred to SBN Ltd v. Ind. O. Corp SC (2009) 8 NWLR (Pt 1144) 491. Counsel admitted that the lower Court did not review the oral testimonies of the two witnesses of the Appellant and of the sole witness of the Third Party but stated it was unnecessary as the testimonies of the witnesses were documentary and the documents were considered by the lower Court in its judgment and that it was incorrect that the record of the evidence of the witnesses had disappeared and were not available to the lower Court when it delivered the judgment. Counsel stated that the parties only had one set of pleadings each properly filed before the lower Court and that there was no need for the lower Court to specify which of the pleadings of the parties it relied on in the judgment and that it was incorrect that the judgment of the lower Court was not related to the issues joined and Counsel asserted that it was the issues of joined on the pleadings that the lower Court decided upon in the judgment. Counsel stated that on the facts and circumstances of this case, the delay in the delivery of judgment cannot be said to have had any effect on the deliberations of the lower Court and urged this Court to resolve the second issue for determination in favour of the Respondents.
It is not in contest in this matter that the lower Court delivered its judgment four years and seven months after the trial and addresses of Counsel; the final written addresses of the parties were adopted on the 19th of January, 2005 and judgment was delivered on the 10th of August, 2009. This second issue for determination revolves around the interpretation of the provisions of Section 294 (1) and (5) of the 1999 Constitution of the Federal Republic of Nigeria. Section 294 (1) reads:
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final address”
Section 294 (5) states that:
“The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of the decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
These provisions have been interpreted severally by the Courts to mean that by a combined reading of the provisions of Sections 294 (1) and (5) of the 1999 Constitution of the Federal Republic of Nigeria, a party cannot seek to nullify a judgment of court simply because it was delivered outside the ninety day period allowed by the Constitution. The party must proceed further to convince the court exercising jurisdiction by way of appeal or review of that decision that he has suffered a miscarriage of justice by the reason thereof. Where there is a failure to so establish a miscarriage of justice, the appellate court will find it difficult to declare that judgment a nullity. In other words, the emphasis is not strictly on the length of time simpliciter but on the effect it produced in the writing of the judgment – Savannah Bank of Nigeria Ltd v. Starite Industries Overseas Corporation (2009) 8 NWLR (Pt. 1144) 491, International Beer and Beverages Industries Ltd v. Mutunci Company (Nig) Ltd (2012) 6 NWLR (Pt. 1297) 487, Kolawole Industrial Company Ltd v. Attorney General, Federation (2012) 14 NWLR (Pt. 1320) 221 and Peoples Democratic Party v. Okorocha (2012) 15 NWLR (Pt. 1323) 205.
This Court agrees with this interpretation given to the provisions of Section 294 (1) and (5) of the 1999 Constitution and it represents the literal meaning of the wordings of the section.
This Court, however, believes that the interpretation must be qualified by the concepts of common sense and reasonableness. After all, there is always presumption against the legislature intending what is unreasonable and abhorrent to common sense in the interpretation of statute and as such, in construing statutes, the construction agreeable to justice and reason must be adopted – Ibrahim v. Sheriff (2004) 14 NWLR (Pt. 892) 43, Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76, Sobamowo v. Elemuren (2008) 11 NWLR (Pt. 1097) 12. The position of the law in this respect is well set out in Maxwell on the Interpretation of Statutes, 12 Edition by Langan, 1976 at page 199 thus:
“In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available.”
Looking at the provisions of Section 294 (1) and (5) of the 1999 Constitution in the light of these concepts, the delay that must have been envisaged by the drafters of the provisions of Section 294 (5) of the Constitution must be one that is within reason and common sense. Thus, the requirement that a party complaining of delay in the delivery of judgment must go further to convince the court exercising jurisdiction by way of appeal or review of that decision that he has suffered a miscarriage of justice by the reason thereof can, and should, only be applicable where the delay itself is reasonable and it is explained by the lower Court in the judgment. Where the delay is unreasonable and it is not explained, the very fact of such delay should be sufficient ground for the appellate Court to find that there has been a miscarriage of justice. The reasons for this position are simple. The courts recognize that what amounts to miscarriage of justice varies in relation to particular facts of a case and that to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage. It is enough if what is done is not justice according to law – Adigun v. Attorney General, Oyo State (1987) 1 NWLR (Pt. 53) 678, State v. Ajie (2000) 11 NWLR (Pt. 678) 434, Adebayo v. Attorney General Ogun State (2008) 7 NWLR (Pt. 1085) 201.
The term “justice” means proper administration of laws; the constant and perpetual disposition of legal matters or disputes to render every man is due. In Obajinmi v. Adedeji (2008) 3 NWLR (Pt. 1073) 1, the Court of Appeal stated that “justice means fair treatment, and the justice in any case demands that the competing rights of the parties must be taken into consideration and balanced in such a way that justice is not only done but must be seen to be done.” And the insertion of a provision in the Constitution stipulating a time period within which a court should deliver its judgment in a case after final address is in recognition of the fact that “human memory is limited by time and space and loses its impressions or knowledge of persons, things, with the passage of time and therefore loss increases with time and pre-occupations” – Ifezue v. Mbadugha (1984) 5 SC 79. “Thus, where the delay in the delivery of judgment is unreasonably long, it cannot be contested that it will, without more, affect the memory of the trial Judge and his impressions of the facts and evidence led in the matter such that whichever way the decision goes, it cannot be, and would not be, seen to be justice according to law.
What would amount to reasonable delay must depend on the facts of each case. In the instant case, the delay in the delivery of judgment was four years and seven months and no explanation was offered by the lower Court for the delay. This delay, by all parameters, is not only unreasonable and contrary to common sense, it is also highly irresponsible. To interpret the provisions of the Constitution in a manner that seeks to condone, tolerate and permit such a delay by requiring the party complaining to go further to explain the injustice it suffered by the delay before such a judgment is set aside is tantamount to promoting absurd and irresponsibility and such an interpretation must be unacceptable to anyone concerned with the proper administration of justice. The law recognizes that where reliance on the literal interpretation of wordings of a statute will lead to absurdity, a court is permitted to depart from that principle of interpretation. This Court is sure that the drafters of Section 294 (5) of the Constitution could not in their “wildest dreams” have envisaged a delay of such a length of time when they were inserting the provision. It is the view of this Court that a delay for such a length of time must be enough ground for this Court to find that there has been a miscarriage of justice and to set aside and nullify the judgment of the lower Court.
Going further and considering whether the Appellant has shown a miscarriage of justice by reason of the delay in the delivery of judgment, the acceptable criteria must be that given by Oputa, JSC, in Dibiamaka v. Osakwe (1989) 3 WLR (Pt. 107) 101, at page 114 where the learned Justice said thus:
“And the law is that if inordinate delay between the end of trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impression made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate court interfere. The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.”
The question that arises is whether the Appellant in the instant case showed that the delay in the delivery of the judgment “apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impression made on him by the witnesses”?
Reading through the proceedings of the lower Court and the judgment delivered, it is obvious that the delay affected the Court’s perception of the case before it. In the additional records of appeal containing the testimonies of the defence witnesses and numbered as pages 165A to 165AO, the lower Court at pages 165M to 165N engaged the Counsel to the Appellant in a discussion and stated clearly its understanding of the case of the first Respondents to be that the first Respondents were not contesting the acquisition of their farmlands and that “the central issue in this suit if I understand is about compensation, payment of compensation or payment of adequate compensation. That is the central issue in this case.” Meanwhile in the judgment delivered, the first issue the lower Court proceeded to resolve was whether the Appellant satisfied the mandatory provisions for compulsory acquisition of the farmlands of the first Respondent and the lower Court proceeded to nullify the acquisition of the farmlands on the basis of the provisions of Section 28 of the Land Use Act that there was a failure on the part of the Appellant to prove service of revocation notice. The first Respondent did not pray for an order nullifying the acquisition of their farmlands.
Further, the lower Court made no reference to the testimonies of any of the three defence witnesses either by way of summary or evaluation. In fact the transcribed records of the testimonies of the witnesses were not part of the initial records of appeal compiled and transmitted to this Court and the transcribed testimonies of the witnesses were forwarded to this Court upon the observation made by the Court. These support the suggestion of Counsel to the Appellant that, by reason of the delay, the lower Court did not have the benefit of the transcribed testimonies of the three defence witnesses when it wrote the judgment. Counsel to the first Respondent stated that the testimonies of the three witnesses were documentary and that the lower Court made reference to the documents they tendered and that this should suffice. This is, however, not entirely correct. The second and third defence witnesses gave copious oral evidence on enumeration of the farmlands, identification of the individual owners of the farmlands and on payment of compensation to the owners of the farmlands numbering seven thousand seven hundred and sixty three claimants while thirty-one persons refused to collect their compensation. The records of appeal show that the named first Respondent applied for and was granted leave by the lower Court on the 24th of March, 1998 to prosecute the suit in a representative capacity on behalf of nine hundred and seventy persons. Perhaps if the lower Court had had the benefit of the oral testimonies and considered them along with the documents tendered, it might have come to the conclusion that the majority of the persons who the first Respondent said he represented in commencing the action had collected compensation and had thus waived their rights to make the claims they made in the action.
Again, the findings and the final orders made by the lower Court were conflicting, contradictory and confusing and they showed a mind no longer tuned to the realities of the case presented for adjudication. Firstly, the plaintiff witness tendered certain documents as Exhibit A, A1 to A11 in the course of trial and they were admitted without objection. The final addresses of Counsel contained arguments on whether the lower Court should attach any probative value to the documents. The issue on the documents was on whether they were deserving of probative value. In the judgment, the trial Court proceeded to rule on the admissibility of the documents and not on their probative value. Secondly, the lower Court nullified the acquisition of the farmlands of the first Respondent on the ground that the Appellant did not prove that notice of revocation was served on the owners of the farmlands as required by the provisions of Section 28 (6) and (7) of the Land Use Act but then proceeded to order that the Appellant was at liberty to pay full and adequate compensation in accordance with the provisions of Section 29 of the Land Use Act that is, that the compensation must be for the value at the date of revocation of the first Respondent’s unexhausted improvements. How is it possible to pay compensation for an acquisition that has been nullified? Further, the lower Court found the Appellant to be in trespass and awarded damages in the sum of N150 Million and then stated that it was without prejudice to Appellant agreeing on the proper scale of payment of compensation. How is this to be done?
It is apparent that the delay in the delivery of the judgment obviously affected the lower Court’s perception and appreciation of case presented to it for adjudication and its treatment of the evidence of the witnesses shows that it had lost the impression made by their testimonies. This Court finds that the delay in the delivery of judgment led to a miscarriage of justice and the second issue for determination is resolved in favour of the Appellant.
On the third issue for determination, whether the first Respondent established their claims, Counsel to the Appellant stated that from the pleadings of the parties, the issue of the title of the first Respondent to the portion of land in dispute was raised and the onus laid squarely on them to establish their title. Counsel stated that the first Respondent led no evidence in proof of their claim of ownership of the land in dispute and that such proof was germane to their claims in this matter. Counsel said further that the Appellant pleaded that there was oil spillage on their land and that the Appellant failed to pay compensation therefor but that Exhibit A to A11 relied upon by the first Respondent to prove the fact stated that it was prepared in respect of compulsory acquisition of their farmlands and meanwhile the plaintiff witness denied any such acquisition under cross-examination. Counsel stated that the conclusion from these was that the case of the first Respondent as pleaded was at variance with the evidence led. Counsel also stated that it was obvious from the judgment that the lower Court did not consider the testimonies of the defence witnesses and did not thus weigh the evidence of both parties on a scale of justice to see which preponderates more and it thus abdicated its primary responsibility and which led to a miscarriage of justice; he referred to the cases of Chukwu v. Nneji (1990) 6 NWLR (Pt. 156) 363, National Electric Power Authority v. Inameti (2002) FWLR (Pt. 131) 1695. Counsel urged this Court to resolve this issue in favour of the Appellant.
In response, Counsel to the first Respondent traversed through the pleadings of the parties and portions of the evidence led and stated that, apart from a general denial which has been held to be deemed as an admission, the Appellant never denied the title of the first Respondent to the portion of land in dispute and that no issue was thus raised in the pleadings on the title of the first Respondent; he referred to the cases of Igbinovia v. Okomu Oil Palm Plc (2002) 17 NWLR (Pt. 796) 386 and Awote v. Owodunni (1987) NSCC 591. Counsel referred to the provisions of Sections 137 (1) and (2) of the Evidence Act on onus of proof and stated that the first Respondent has no onus to prove title as same was admitted by the Appellant and that the first Respondent proved trespass to their farmlands and that the onus thus shifted to the Appellant. Counsel stated that the Appellant made an issue of the acquisition of the farmlands of the first Respondent and thus had the onus to prove such acquisition and that the Appellant failed woefully to discharge the onus on it and the lower Court was thus correct in awarding damages for trespass and an injunction in favour of the first Respondent; he referred to the cases of Olorunfemi v. Asho (1999) 1 NWLR (Pt. 585) 1 and Ogunyombo v. Ookoya (2002) 16 NWLR (Pt. 793) 224. Counsel urged this Court to resolve the third issue for determination in favour of the first Respondent.
Before delving into the merits of this issue for determination, this Court considers it necessary to comment on the way and manner the Third Party Notice was employed in this matter. The records of appeal shows that by a motion on notice dated the 30th of July, 2003, the Appellant sought for an order of Court joining Messrs I. Idi and Partners, the second Respondent, as co-defendant in the suit. When the motion came up on the 16th of October, 2003, Counsel to the Appellant withdrew the application and orally applied for the issuance of a Third Party’s Notice instead and the oral application was granted and whereupon the Third Party Notice dated the 6th of November, 2003 was issued and served on the second Respondent. In reaction thereto, the second Respondent entered an appearance and filed a motion for extension of time to file a statement of defence which was granted by the lower Court on the 24th of February, 2004. The second Respondent filed a statement of defence dated the 23rd of February, 2004 to the case of the first Respondent and thereafter proceeded to participate fully at the trial defending the claims of the first Respondent.
Third Party proceedings in the Federal High Court are governed by Order 9 Rules 17 to 24 of the Federal High Court Rules and a third party notice is served where a defendant claims against a party not already a party to the action that he is entitled to contribution or indemnity; or that he is entitled to any relief or remedy relating to, or connected with the original subject matter of the action and substantially the same as one relief or remedy claimed by the plaintiff; or that any question or issue relating to or connected with the said subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and defendant but as between the plaintiff and the defendant and the third party or between any or either of them – Peter Tiwell (Nig) Ltd v. Inland Bank (Nig) Ltd (1997) 3 NWLR (Pt. 494) 408, Labode v. Otubu (2001) 7 NWLR (Pt. 712) 256.
In other words, a third party is a person not originally a party to the suit but is enabled by the third party proceedings to be brought into the suit as a party at the instance of the defendant. A third party is thus not a defendant to the suit of a plaintiff and he cannot therefore defend the plaintiff’s case, as a matter of course, nor can the plaintiff obtain judgment against him in the suit – Okafor v. African Continental Bank Ltd (1975) 5 SC 89 at 103 and Expo Ltd v. Pafab Enterprises Ltd (1999) 2 NWLR (Pt. 591) 449.
Where a third party desires to defend the case of a plaintiff, he must obtain leave of Court to do so under the provisions of Order 9 Rules 23 and 24 of the Federal High Court Rules or apply to the Court to be joined as a co-defendant in the suit – Expo Ltd v. Pafab Enterprises Ltd. supra. The procedure adopted by the parties in the present suit- whereby the second Respondent, as a third party, filed a statement of defence to and it defended the case of the first Respondent without first obtaining the leave of the lower Court to do so or praying to be joined as a co-defendant was most irregular and in total non-compliance with the rules of the lower Court. The parties did not, however, complain against this irregular procedure and none of them has made it an issue in this appeal, so this Court will make no issue of it apart from this passing comment.
Going to the merits on the third issue for determination, it is beyond dispute that the foundation of the claims of the first Respondent in this matter, as stated on their pleadings, was that they owned the said farmlands in dispute by inheritance from their ancestors who had been the owners thereof from time immemorial and had been living, cultivating and depending on the said farmlands as their only means of livelihood. It is settled law that where a plaintiff’s claim to a piece of land in dispute is predicated on ownership, the onus is on him to prove and establish his ownership – Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414 and Elegushi v. Oseni (2005) 14 NWLR (Pt. 945) 348.
In dealing with the issue of proof of ownership of the farmlands in dispute by the first Respondent, the lower Court stated in the judgment thus:
“Let me state at this stage that title of the Plaintiffs to the farmland within the buffer zone compulsorily acquired is not in dispute, notwithstanding the contention of the Defendants in their respective addresses. The Defendant did not directly in its Defence deny the fact that the Plaintiffs owned farmlands that were compulsorily acquired … The general denial by the Defendant and the admission by the Third Party clearly put out of question the title of the Plaintiffs to their respective farmlands. It is an established principle of law that facts admitted by the adverse party need not be proved… It is therefore my respectful view that it is beyond question that the Plaintiffs are owners of the lands compulsorily acquired.” (See pages 204 to 205 of the records)
Counsel to the first Respondent canvassed this position of the lower Court in his brief of arguments and suggested that the need for the first Respondent to prove their ownership of the farmlands in dispute was obviated by the general denial of the ownership of the land by the Appellant in its pleadings as such general denial amounted to an admission. With respect to Counsel, it is not in every instance that a general denial of a paragraph of a statement of claim amounts to an admission of the averments in that paragraph – Lion of Africa Insurance v. Fisayo (1986) 4 NWLR (Pt. 37) 674, Attorney General, Anambra State v. Onuselogu Enterprises Ltd (1987) 4 NWLR (Pt. 66) 547, Ugochukwu v. Cooperative & Commerce Bank Ltd (1996) 6 NWLR (Pt. 456) 524, Ugochukwu v Unipetrol (Nig.) Ltd (2002) 7 NWLR (Pt. 765) 1, Akanni v. Olajide (2004) 9 NWLR (Pt. 879) 575, Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241. The Court must read the entire pleadings of a party and have a general overview of the case presented by the party to determine whether he admitted the entire case, or portions thereof, of the other party – Audu v. Guta (2004) 4 NWLR (Pt. 864) 463 and Buhari v. Obasanjo supra.
In this instant case, the facts presented before the lower Court by the parties show that there was no admission of the titles of the first Respondent to the farmlands in dispute either by the Appellant or the Third Party. As stated earlier, the first Respondent obtained the leave of lower Court to commence this action in a representative capacity on behalf of nine hundred and seventy persons who alleged that they owned the farmlands in dispute by inheritance. Nowhere in the entire records of appeal were the names of these persons listed. It was the testimony of the witness of the first Respondent, under cross-examination, that the number of farmers affected was four thousand seven hundred and ninety and that it was their findings that four thousand three hundred and fifty one people to whom compensation was paid were “ghost farmers”. It was the case of the Appellant through the second Respondent, as third party, that an enumeration exercise of the farmland was carried out in 1993 whereat the owner of each farmland was physically identified and they were seven thousand seven hundred and ninety five persons in number and out of which compensation was paid and collected by seven thousand seven hundred and sixty three farmers, leaving thirty one persons, including the named first Respondent, who refused to collect their compensation and the list of all those paid compensation and of those that refused to collect were made into a schedule and presented before the lower Court.
In other words, while the first Respondent maintained that they owned the farmlands, it was the case of the Appellant that the owners of the farmlands had been identified and paid compensation, except a few. These cannot be said to amount to an admission of the ownership of the farmlands by the un-named nine hundred and seventy persons represented by the first Respondent. These facts show that there was clearly a contest between the parties on the real owners of the farmlands in dispute and this made it imperative for the first Respondent to establish by cogent evidence that the nine hundred and seventy persons represented as claimants in the matter were the actually owners of the farmlands in dispute in this matter and not those to whom compensation was paid by the Appellant through the Third Party.
Additionally, the principle that a general denial amounts to an admission which obviates the burden of proof is inapplicable in land litigation where title to land is in issue. Where a party claim ownership of land, the law is that he must prove his ownership by cogent, credible and compelling evidence and the onus of proof is not diminished by a general denial or by an evasive averment such as “the defendant is not in a position to deny or admit paragraph… and will put the claimant to the strictest proof thereof” – Umesie v. Onuaguluchi (1995) 9 NWLR (Pt. 421) 515, Shasi v. Smith (2009) 18 NWLR (Pt. 1173) 330. Neither is it obviated even by an admission on the pleadings or by a default in filing pleadings, because the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence – Bello v. Eweka (1981) 1 SC 101, Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299, Motunwase v. Sorungbe (1988) 4 NWLR (Pt. 92) 90, Henshaw v. Effanga (2009) 11 NWLR (Pt. 1151) 65, Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81.
The first Respondent had the onus to prove the ownership of the farmlands in dispute by the represented claimants. They led no evidence to prove the ownership of the farmlands and they thus did not establish the foundation upon which their claims were predicated. The claims must fail. The third issue for determination is resolved in favour of the Appellant.
In conclusion, this Court finds merit in this appeal and it hereby succeeds. It is the finding of this Court that the lower Court lacked the subject matter jurisdiction that will govern the final orders to be made in this appeal and it is trite that where a court lacks jurisdiction to entertain a matter, the proper order to make is one striking out the suit – NEPA v. Edegbero & 15 Ors (2002) 18 NWLR (Pt. 798) 79, Arjay Ltd v. Airline Management Support Ltd (2003) 7 NWLR (Pt. 820) 577, Abubakar Tatari Ali Polytechnic v. Maina (2005) 10 NWLR (Pt. 934) 487. The judgment of the Federal High Court sitting in Kaduna in Suit No. FHC/KD/CS/19/1998 delivered by Honourable Justice A. M. Liman on the 10th of August, 2009 is hereby set aside. The claims of the first Respondent before the lower Court are hereby struck out. The parties shall bear their respective costs of this appeal. These shall be the orders of this Court.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: The judgment just delivered by my learned brother, Abiru, J.C.A., has been carefully studied by me and I have no hesitation in agreeing with him that the Federal High Court has no jurisdiction whatsoever to entertain any suit bordering on land matters. The Respondent had sued the Appellant before the Federal High Court, Kaduna Division for an order of injunction restraining the Appellant from the land in dispute, damages of N196,017,647.00; possession of the said land and premises, and another order of injunction from further pollution and destruction of the said land. As expressed by the Supreme Court, the claim before the Court being for possession, the common law rule is that anyone who was out of possession must recover the land by the strength of his own title and not by reason of any defect in the title of the person in possession. To succeed in his case, the Respondent must prove his title over the land. It is instructive to note that to prove that issue of title, the suit must be commenced in the Court that Section 39 of the Lands Use Act has endowed with the jurisdiction to entertain the same. It’s only the High Court of a State that has the jurisdiction to entertain the suit in respect of land in urban areas. It is also settled law that where two competing parties claim to be in possession of land in dispute in a case, the law ascribes possession to the one with the better title, per Akintan, J.S.C., in Adetayo v. Ademola (2010) All FWLR Part 533 page 1809. It was further held therein that the purpose which Sections 39, 41 and 42 of the Land Use Act are designed to serve are very clear. While Section 39 excludes Area Courts and Customary Courts from exercising jurisdiction in respect of land the subject of statutory right of occupancy, Section 41 redefines the jurisdiction of the Courts referred to therein so as to ensure that Courts, such as the Customary Courts in Southern States of this country which had previously been exercising concurrent jurisdiction with the High Court without distinction by classification of land, have their jurisdiction limited as stated therein. In other words while the State High Court has exclusive jurisdiction over lands in Urban Areas by virtue of Section 39(1) of the Land Use Act, that Court shares jurisdiction with only the Area Courts and Customary Courts or other Courts of equivalent jurisdiction by virtue of both the jurisdiction of the State High Court under Section 272 of the 1999 Constitution and the jurisdiction conferred on the Area Courts and Customary Courts by virtue of Section 41 of the Act. As there is nothing in these Sections 39, 41 and 42 of the Land Use Act that conferred any jurisdiction on the Federal High Court to entertain land causes or matters. The Federal High court has no jurisdiction to hear and determine any dispute on declaration of title to land. In the light of the aforementioned, I agree with the decision of my brother that this suit ought to be struck out for want of jurisdiction. The same is hereby struck out by me.
ITA GEORGE MBABA, J.C.A.: I have had the privilege of reading, in draft, the lead judgment, just delivered by my learned brother ABIRU JCA and I agree with him, completely, that the Federal High Court had no jurisdiction over the subject matter in dispute, being title to land, and that title to land is not proved by falling back on the weakness of the defence case, or admission by the Defendant or a third party. The plaintiff is always under a duty to establish the root of his own title, and can only succeed on the strength of his case. OLOHUNDE & ANOR. v. ADEYOJU [2000] 10 NWLR (Pt. 676) 562; (2000) LPELR-SC 15/1995; UDOJI v. ONUKOGU (2005) 16 NWLR (Pt. 950) 97; (2005) LPELR – SC 93/1999; EGOMI v. EGONU (1978) 11-12 SC [Reprint] 2; (1978) LPELR-SC 344/1976.
With this and the fuller reasons in the lead judgment, I too allow the appeal and abide by the consequential orders in the lead judgment.
Appearances
Hassan AbdulRahamanFor Appellant
AND
Mrs. S. O. Omoloba wth Asabe Ahmed,
Nana A. Usman and Khadijat Umar Ibrahim for first RespondentFor Respondent
