OKIRO v. EMEH & ANOR
(2020)LCN/15442(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Thursday, November 26, 2020
CA/E/101/2015
RATIO
TRESPASS AND INJUNCTION: WHETHER A CLAIM FOR TRESPASS AND INJUNCTION PUTS TITLE IN ISSUE
The law is settled that a claim for trespass and injunction puts title in issue as the law ascribes possession to the party who can prove a better title. The State Proceedings Law of Enugu State is also not applicable to this suit which is rooted in claim for recovery of land, trespass and injunction. See ROE LTD. V.UNN (2018) LPELR-43855(SC) AT 21-22 (D-A). FCDA V. KUDA ENG. & CONSTRUCTION COY.LTD & ORS.(2014) LPELR-22985 (CA) AT 32 (A-B).OBUN V. OBANLIKU L.G.C. (2017) LPELR-43804 (CA) AT 12-16 (F-A).
Even if the law is applicable to the 1st respondent’s suit and I say it is not, the law is settled that a cause of action for recovery of land accrues when possession is lost or the date of the alleged trespass See KASANDUB & ANOR. V. ULTIMATE PETROLEUM LTD & ANOR. (2007) LPELR-8228 (CA) AT 29 (D-A). MOYOSORE V. GOVERNOR OF KWARA STATE & ORS. (2011) LPELR-8813 (CA) AT 46 (A). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
GROUNDS OF APPEAL: RELEVANCE OF A GROUND OF APPEAL FROM WHICH NO ISSUE IS FORMULATED
The law is settled that any ground of appeal in respect of which no issue is formulated is deemed abandoned. See SAPO & ANOR, V. SUNMONU (2010) LPELR-3015 (SC). DAKOLO & ORS. V. REWANE-DAKOLO & ORS. (2011) LPELR-915 (SC) AT 29 (C-E). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
SIR MIKE MBAMA OKIRO APPELANT(S)
And
1. DR. KINGSLEY EMEH (SUING BY HIS ATTONEY MR. CHIBUEZE OFFORMA) 2. THE ENUGU STATE ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE RESPONDENT(S)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgement of the High Court of Enugu State delivered in suit no. E/18/2011 on 19/5/2014. The 1st respondent instituted the suit wherein he sought for the following reliefs against the appellant and the 2nd respondent:
a. “A declaration that the purported revocation of the plaintiff’s plot 75, Unity Estate. Independence Layout, Enugu by the Enugu State Commissioner of Lands and Housing and purported reallocation of same to the 2nd defendant was not done in accordance with the due process of law and is therefore illegal.
b. A declaration that the building certificate of occupancy issued to the plaintiff in respect of plot 75 Unity Estate Independence Layout Enugu registered as No 27 at page 27 in volume 1483 and dated 15th March, 1999 at the Lands Registry Enugu is valid and subsisting.
c. N100,000,000.00 (One Hundred Million Naira) being general damages for trespass.
d. A perpetual injunction restraining the defendants whether by themselves, their agents, servants and/or their privies from committing any further acts of trespass on the plaintiff’s plot 75 Unity Estate Independence Layout, Enugu or in anyway whatsoever interfering with the plaintiff’s ownership and possessory rights over the said plot 75 Unity Estate Independence Layout, Enugu.”
The 1st respondent’s case at the Court below was that a plot of land referred to as plot 75, Unity Estate, Independence Layout, Enugu covered by a Certificate of Occupancy dated 15th March, 1999 and registered as no.27 at page 27 in Volume 1483 at the Lands Registry, Enugu was allocated him. By an Irrevocable Power of Attorney dated 14th December, 2007 and registered as No. 72 at page 72 in Volume 1592, he transferred his interest in the land to Mr. Chibueze Offorma Attorney and donated to him an irrevocable power of attorney. Mr. Offorma erected a three-bedroom bungalow on the land in March, 2008.
On 23rd July, 2009, the agents of the appellant entered the land and demolished part of the building. On 17th February, 2010, the agents of the appellant entered the land again and completed the demolition of the building on the land. The respondent later discovered that the appellant purportedly re-allocated the land to the 2nd respondent by a Certificate of Occupancy dated 22nd of March, 2010 and registered as No.34 at page 34 in Volume 56 at the Lands Registry, Enugu. The re –allocation was premised upon a letter of revocation dated 3rd September, 2008 addressed to Dr. Kingsley Emeh of The Federal Science College, Enugu which was not served on the 1st respondent.
The case of the 2nd respondent was that the letter of revocation was served on the 1st respondent by EMS speed post at No.2, Chime Avenue, New Haven, Enugu which is his last known address on 8th September, 2008. The land was reallocated to the 2nd respondent after the interest of the 1st respondent was revoked for non development. That the 1st respondent’s interest in the land had been extinguished by revocation as at the date the 1st respondent executed the power of attorney dated 14th December, 2007 and registered as No. 72 at page 72 in Volume 1592 on 17th December, 2007 and transferred his interest to Mr. Chibueze Offorma. The development on the land in March, 2009 was done 9 years after the certificate of occupancy was issued to the 1st respondent contrary to the terms of the allocation and without the approval of the Town Planning Authority contrary to Town Planning Law.
The case of the appellant was that the land in dispute was allocated to him and he has since obtained a certificate of occupancy in respect of the land. If there was a revocation of the land before it was reallocated to him, he was not aware of the revocation as revocation can only be done by the 1st respondent.
Four witnesses testified in the case. The 1st respondent as the plaintiff called two witnesses. The appellant and 2nd respondent as defendants called 1 witness each. Parties filed and exchanged written addresses which they adopted as their final arguments before the Court. The Court below in his considered judgment granted all the reliefs sought by the 1st respondent.
The appellant being dissatisfied with the judgment filed a notice of appeal dated 20 /6/ 2014 which contained one ground of appeal against the judgment. The ground of appeal is as follows:
“The judgment is against the weight of evidence.”
The appellant’s brief of argument was filed on 22/1/2015. It was deemed as properly filed and served on 30/1/ 2015. The 1st respondent’s brief of argument was filed on 9/2/2018. It was deemed as properly filed and served on 15/2/2018. The appellant raised the following issues for determination:
1. “Whether the trial Court had jurisdiction to hear the
suit having regards to S.2 of the Public Officers Protection Act Cap P.41. Laws of the Federation 2004 and S.37 of the Actions Law of Enugu State Cap 4 Laws of Enugu State 2004? (Culled from ground 2).
2. Whether Notice of Revocation not supported by any advance notification of intention to revoke plaintiff’s allocation was incompetent? (Culled from grounds 3 and 4)
3. Whether the Notice of Revocation being served at No. 2 Chime Avenue, New Heaven Enugu was wrongful? (Culled from ground 4).”
1st respondent formulated the following issues for determination:
1. “Whether the proceedings at the trial Court were statue barred, thus depriving the Court of jurisdiction?
2. Whether the decision of the trial Court invalidating the revocation of the 1st respondent’s interest in the land the subject matter of this appeal was perverse?”
As stated earlier in this judgment, the notice of appeal filed on 20/6/2014 which is on pages 162 and 163 of the record of appeal contain only one ground of appeal. At the hearing of the appeal, the appellant’s counsel relied on the said notice of appeal. No issue was formulated in respect of the sole ground of appeal. The law is settled that any ground of appeal in respect of which no issue is formulated is deemed abandoned. See SAPO & ANOR, V. SUNMONU (2010) LPELR-3015 (SC). DAKOLO & ORS. V. REWANE-DAKOLO & ORS. (2011) LPELR-915 (SC) AT 29 (C-E). The sole ground of appeal in respect of which no issue is formulated is deemed abandoned and is hereby struck out. There are no grounds 2, 3 and 4 in the notice of appeal.
Issues 2 and 3 formulated by the appellant’s counsel do not relate to any ground of appeal. The law is settled that issues formulated for determination in an appeal must relate to or arise from the ground (s) of appeal. Any issue which is not related to the ground(s) of appeal is incompetent and must be discountenanced. Issues 2 and 3 are hereby discountenanced.
However, issue 1 raises an issue of jurisdiction which by law can be raised at any stage of the proceedings by whatever name, form or shade, even in the brief of argument on appeal at the Supreme Court for the 1st time. See PDP V. EZEONWUKA (2017) LPELR- 42563 (SC) AT 92 (A-D). NNPC & ANOR. V. ORHIOWASELE & ORS. (2013) LPELR-24710 (SC) AT 5 (A-C). APGA V. OYE & ORS. (2018) LPELR-45196 (SC) AT 42-44 (A-E).
The only surviving issue for determination which is the same as issue 1 formulated by the 1st respondent’s counsel is whether the trial Court had jurisdiction to hear the suit having regards to S.2 of the Public Officers Protection Act Cap P.41. Laws of the Federation 2004 and S.37 of the Actions Law of Enugu State Cap 4 Laws of Enugu State 2004?
On this issue, the appellant’s counsel referred to paragraphs 9 and 10 of the statement of claim. He submitted that the 1st respondent’s cause of action arose in 2008 when he discovered the revocation of his interest in the land in dispute. He further submitted that the writ of summons having been issued on 24/1/2011, three years after the cause of action arose, the suit is statute barred by virtue of Section 37 of the Actions Law of Enugu State and Section 2 (a) of the Public Officers Protection Act.
In his response, the 1st respondent’s counsel submitted that it is wrong for the appellant to argue that the cause of action accrued in 2008 when the plaintiff’s case is that there was no service of the notice of revocation as required by law. He argued that though knowledge of accrual of the cause of action on the part of the plaintiff is not a condition precedent to the application of Limitation Law, where there is a fraudulent concealment of the right of action, statute of limitation will not apply so long as the party defrauded remains ignorant of the fraud. He referred to AJIBONA V. KOLAWOLE (1996) 10 NWLR (PT. 476) 22 AT 36. MULIMA & ANOR. V. USMAN & ORS. (2014) 1-2 SC (PT.111) 123 AT 170.
Counsel contended that the cause of action accrued on 23/7/2009 and 17/2/2010 when the acts of trespass and demolition of the building on the land was carried out. He argued that the second act of trespass gave rise to a fresh cause of action distinct from the cause of action that accrued on 23/7/2009. He contended that it is the State Proceedings Law, Cap 147, Laws of Enugu State, 2004 that is applicable to this case and not Public Officers Protection Act. He submitted that the suit was filed within the 12-month period stipulated by Section 11 (1) of the State Proceedings Law and therefore not statute barred.
RESOLUTION
Section 1 (1) of the Constitution states that the Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. By Section 2 (2), Nigeria shall be a Federation consisting of States and a Federal Capital Territory. Enugu State is one of the 36 States of the Federation listed in Section 3 (1). By virtue of Section 4 (6) and (7) the legislative powers of a State of the Federation is vested in the House of Assembly of the State. The House of Assembly of a State has the power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say-
(a)any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.
(b)any matter included in the Concurrent Legislative List
set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
The State Proceedings Law of Enugu State was enacted by virtue of Section 4(6) and (7) of the Constitution. The purpose of the law as clearly stated therein is to regulate suits by or against the State or public officers and matters connected thereto. Sections 2, 4, 7 and 11 of the Law provide that:
2. In this law-
“Attorney-General” means Attorney-General of the State;
“Consolidated Fund” includes fund formed by the public revenue and incomes of the State;
“Damage” means harm resulting from a tortuous act or mission;
“Injury” has the same meaning as damage;
“Governor” means Governor of the State;
“Public officer” means an officer engaged in the service of the state in a civil capacity;
“Servant” includes a public officer;
“State” means Enugu State of Nigeria;
4. (1) Subject to the provisions of this law, the State shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject, in respect of torts committed by its servants or agents in their capacity and within the scope of their authority as such servants or agents:
Provided that nothing herein contained shall be construed as affecting any written law from time to time in force in the state which limits the liability of the State in matters specified therein.
(2) Where the State is bound by a statutory duty which is binding also upon persons other than the State and its officers, then subject to the provisions of this law, the State shall, in respect of failure to comply with that duty, be subject to all those liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity.
7. Any claim in contract or in equity against the State which would if such claim had arisen against a person other than the State be the ground of an action in any competent Court shall be cognizable by the said Court against the State.
Provided than no claim in contract shall lie against the State where another remedy is provided by a written law in force in the state: provided further that nothing in this section shall be construed to affect the law relating to arbitration.
11. (1) No action or proceeding shall lie or be instituted under this law unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuing damage or injury, within twelve months next after the ceasing thereof:
Provided that if the action or proceeding be at the instance of any person for a cause arising while such a person was a convict prisoner, it may be commenced within twelve months after the discharge of such person from prison or, in the case of a continuing damages or injury, within twelve months next after the ceasing thereof, whichever shall last occur.
(2) No action shall be instituted
(a) against the State; or
(b) against a public officer in respect of any act done in pursuance of execution or intended execution of any written law, or of any public duty or authority until the expiration of a period of three months after notice in writing has been, in the case of the state delivered to the Secretary to the Government, and in the case of a public officer, delivered to him, stating the cause of action, the name, description and place of residence of the proposed plaintiff and the relief which he claims; and the plaint when eventually prepared shall contain a statement that such notice has been so delivered and the date on which it was delivered:
Provided that nothing herein contained shall be construed as affecting the provisions of any law which limits the liability of the Government or any department thereof in respect of any act or omission of its servants.”
The Attorney General is a public officer representing the Enugu state in the suit and there is no doubt that the suit is against the state for failure to comply with the Section 44 of the Land Use Act and for demolition of the building on the land in dispute. I am therefore of the view the Public Officers Protection Act is not applicable to any suit instituted against the Attorney General of Enugu State who is a public officer engaged in the service of the state especially when the cause of action is a land dispute in respect of a land situate within Enugu state covered by a certificate of occupancy granted by the Governor of Enugu State. See NASARAWA STATE UNIVERSITY V. NEKERE (2018) LPELR-44550 (CA) AT 22-24(E-D) where this Court per Ekanem, J.C.A. held that: “I agree with counsel for the respondent that the Public Officers Protection Act being a Federal enactment does not apply to the appellants who are state agency/officer. A Federal Law cannot be applied to a State institution and its agents except the State adopts the same. This is because a State within its sphere of operation is autonomous and independent of the Federal Government and so the Federal Legislature cannot make a law that applies to or is binding on a State except in matters within the exclusive and concurrent legislative lists. See Abdullahi v Millitary Administrator, Kaduna State (2009) 15 NWLR (Pt. 1165) 417, 435 and Attorney-General of Lagos State V Attorney-General of the Federation (2003) 111 LRCN 1867. Contrary to the position of appellants’ counsel the definition of public officers contained in Paragraph 15 of Part II of the Fifth Schedule to the Constitution of Nigeria 1999 (as amended) is for the purpose of the Code of Conduct and not the application of the Public Officers Protection Act.”
A community reading of the entire pleadings of the 1st respondent leaves no one in doubt that this is an action for recovery of land. The law is settled that a claim for trespass and injunction puts title in issue as the law ascribes possession to the party who can prove a better title. The State Proceedings Law of Enugu State is also not applicable to this suit which is rooted in claim for recovery of land, trespass and injunction. See ROE LTD. V.UNN (2018) LPELR-43855(SC) AT 21-22 (D-A). FCDA V. KUDA ENG. & CONSTRUCTION COY.LTD & ORS.(2014) LPELR-22985 (CA) AT 32 (A-B).OBUN V. OBANLIKU L.G.C. (2017) LPELR-43804 (CA) AT 12-16 (F-A).
Even if the law is applicable to the 1st respondent’s suit and I say it is not, the law is settled that a cause of action for recovery of land accrues when possession is lost or the date of the alleged trespass See KASANDUB & ANOR. V. ULTIMATE PETROLEUM LTD & ANOR. (2007) LPELR-8228 (CA) AT 29 (D-A). MOYOSORE V. GOVERNOR OF KWARA STATE & ORS. (2011) LPELR-8813 (CA) AT 46 (A).
In the instant case, the 1st respondent pleaded that the agents of 2nd respondent and the appellant entered the land on 23/7/2009 and demolished part of the wall fence, the gate house and the left wing of the bungalow on the land. On 17/2/2010, the same agents of the 2nd respondent and the appellant led a crowd of thugs with a bulldozer and completed the demolition of what remained of his property on the land. The demolition of the remaining building on 17/2/2010 constitutes a continuing act of trespass which gave the 1st respondent a right to institute the suit. The suit having been filed on 21/1/2011 was filed within the twelve (12) months period stipulated by the State Proceedings Law.
The argument of the appellant’s counsel that the cause of action accrued in November, 2008 is untenable. The informal information or rumour that the land in dispute had been declared an undeveloped land without service of the revocation notice as required by law cannot be the basis of the declarations sought by the 1st respondent or an action for recovery of land, trespass and injunction. The Court does not adjudicate on gossips or rumours. Until the agents of the 2nd respondent entered the land and destroyed the buildings thereon, the fact of revocation remained in the rumour mill.
For the above reasons, the contention of the appellant that the 1st respondent’s suit is statute barred is misconceived. The objection to the jurisdiction of the Court is dismissed. The appeal fails and it is hereby dismissed. Parties shall bear their own 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 MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. and I totally endorse the reasoning and conclusion therein. For the more detailed reasoning in the lead judgment, I equally find no merit in this appeal and I accordingly dismiss it.
ABUBAKAR SADIQ UMAR, J.C.A.: I have had the privilege of reading before now, the Judgment of my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, J.C.A., and I am in full accord with his reasoning that led him to the conclusions that the appeal is unmeritorious.
For the reasons given in the lead judgment, I will also dismiss the appeal and abide by the consequential order made as to costs.
Appearances:
Ofoma Agbo with him, J. S. Obodike For Appellant(s)
Ejike Nwobodo with him, J. S. Obodike for 1st Respondent.
Nkechi Okegbe, Assistant C. L. O. Ministry of Justice Enugu State for 2nd Respondent. For Respondent(s)
