RALIATU MUSA AIGORO v. COMMISSIONER OF LANDS AND HOUSING, KWARA STATE (2011)

RALIATU MUSA AIGORO v. COMMISSIONER OF LANDS AND HOUSING, KWARA STATE

(2011)LCN/4744(CA)

In The Court of Appeal of Nigeria

On Monday, the 18th day of July, 2011

CA/IL/67/2010

RATIO

INTERPRETATION OF STATUTE : INTERPRETATION OF SECTION 294(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 AS IT REGARDS TIME FRAME FOR DELIVERY OF JUDGMENT

…section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 which reads thus; “every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of the evidence and final addresses and furnish all parties to the case or matter determined with duty authenticated copies of the decision within seven days of delivery thereof.” There is no doubt that if a court fails to deliver its judgment within three months, such failure contravenes the above stated provision, thus, the judgment becomes null and void’ section 294 of the 1999 constitution was enacted to prevent judgment from being unduly delayed. PER SOTONYE DENTON WEST, JCA

ISSUE OF JURISDICTION: EFFECT OF AN ACTION WITHOUT JURISDICTION

…in Aribisafa v ogunyemi (2005) 6 NWLR (pt 921), the supreme court held inter-alia that: “Jurisdiction is blood that gives life to survival of an action in a law, and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise” PER SOTONYE DENTON WEST, JCA

POWER OF COURT: WHETHER A COURT CAN RAISE AN ISSUE SUO MOTU AND DECIDE ON SAME POINT WITHOUT CALLING ON THE PARTIES TO ADDRESS THE ISSUE

INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 44 OF THE CONSTITUTION AS IT REGARDS COMPENSATION FOR COMPULSORY ACQUISITION OF MOVEABLE PROPERTY OR INTEREST IN IMMOVABLE

By virtue of section 44 of the constitution which is hereby reproduced thus: “No moveable property or any interest in on immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that among other things (a) Requires the prompt payment of compensation therefore; and (b) Gives to any person claiming such compensation a right a right of access for the determination of his interest in the property and the amount of compensation to o court of law or tribunal or body having jurisdiction in that part of Nigeria. PER SOTONYE DENTON WEST, JCA

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

IGNATUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

Between

RALIATU MUSA AIGORO
(suing by her Attorney Abdul Mumuni) Appellant(s)

AND

COMMISSIONER OF LANDS AND HOUSING, KWARA STATE Respondent(s)

SOTONYE DENTON WEST, JCA (Delivering the Leading Judgment): This appeal stems from the ruling of Honourable Justice H.A Saleeman of the Kwara state High Court of justice, Ilorin Division which was delivered on 24/02/2009. The trial court in her wisdom struck out the appellant’s suit. The appellant felt discontented, hence, this Appeal.
The Appellant vide a Fundamental Enforcement Rule sought for redress for the violation of the Appellant’s principal fundamental right to compensation. The Appellant sought for the following reliefs at the lower court, as follows;
i. A DECLARATION that the acquisition of the applicant’s principal’s land by the Kwara state Government without paying compensation to the principal.
violates the principal’s fundamental right to compensation for the loss of the land to the state government IN THE ALTERNATIVE, A DECLARATION that the acquisition of the applicant’s principal’s land by the Kwara state Government is a nullity for want of payment of compensation to the principal.
ii. AN AWARD of N300,000.00k as the overt market value of one plot of the applicant’s principals land measuring 100ft x 50ft being at Quarry area of Sango, Ilorin as at the year 2007;
IN THE ALTERNATIVE, AN AWARD of general or nominal exemplary damages of N500,00.00k for acquiring the applicant’s principal’s land by the Kwara state Government without paying compensation to the principal.
iii. AN AWARD of interest at the bank rate of 21% per annum for delay in paying compensation to the applicant’s principal from 12th September, 2007 till the final payment of the compensation to the principal.
iv. AN AWARD of N 99,000.00k against the Kwara state Government for loss of the reserved 99 years of deemed right of occupancy of the applicant’s principal.
And same was supported with a 26-paragraph Affidavit deposed to by one Abdul Mumuni. The Respondent, that is, the commissioner for lands in Kwara state never appeared to defend the suit, despite proof that they were served.
The appellant filed eight grounds of appeal on 1st day of JUNE 2011, the Appellant’s counsel, A.A Ibrahim adopted his brief of argument dated 25th day of August and fifed 1st of September 2010. The Respondent was served but did not reply or file any other process. The Appellant formulated five (5) issues for determination thus;
1. whether, by the constitutional time limit, a nullity and a miscarriage of justice have occurred in the Ruling Appealed against which was delivered by the trial judge post 90 days of conclusion of the trial.
2. Whether, by the procedure adopted by the trial judge, the issues of propriety of endorsing the Appellant’s capacity of Attorney after the name of his principle and the issue of the propriety of instituting fundamental rights proceedings in the matter of money had and received by the Gobir family were raised and determination suo motu by the trial court. (Ground of Appeal No 2 and 3)
3. Whether, by the adversary system of justice in Nigeria, the trial judge has made out a different case of money had and received by the Gobir family as well as a case of fiduciary relation of the said family arising from the inchoate ownership of the land in question by the Appellant’s principle where the Appellant presented a case of claim of compensation for respondent’s compulsory acquisition of the land in question to the trial court(Grounds of Appeal No 4, 6 and 7)
4. Whether, from the evidence before the court, the trial judges, decision that the appellant’s fundamental right proceeding before it, was inappropriate is a perverse decision. (Ground of Appeal No 5)
5. Whether, the trial court’s observation that it called for further address from the parties before it on the issue of propriety of the agent suing for his principal did not affect its decisions that the suit of this Appeal be amended. (Ground of Appeal No.5).
Before proceeding to resolve the issues, the appeal was heard only on the appellant’s brief who had earlier applied to do so before the court The resolution of the Appeal shall be based on the Appellant’s issues alone as formulated, as the Respondent never filed any brief.

1. ISSUE 1
whether, by the constitutional time limit, a nullity and a miscarriage of justice have occurred in the Ruling Appealed against which was delivered by the trial judge post 90 days of conclusion of the trial.
The Appellant argued that the Ruling in this matter was delivered 34 days beyond the 90 days time limit for delivery of Ruling or judgment vide section 294(1) of the 1999 constitution of the federal Republic of Nigeria herein referred to as the constitution’ that the Ruling ought to be delivered on 24/2/2009 and not 24/2/2009 when the Ruling was delivered. The Appellant’s counsel thereafter submitted that, the Ruling delivered after the stipulated 90 days should be declared null and void, he referred this court to the case of ODI v. OSAFILE (1985) 1 NWLR pt. 1 pg73 at 78 to buttress his argument.
Appellant’s counsel further contended that, the memory of the trial judge failed her as the trial judge muddled up the proceedings and that the issues as formulated by the Appellant at the lower court were not considered. He went further to state that the trial judge brought into the case, what was not, that is, by stating that the Respondent was unaware of the transfer of rand to the Appellant and that the issue of the authority of the Gobir family to collect compensation for the Appellant’s principal could not be resolved in the absence of the said family, when there was no fact or evidence to that effect.
The Appellant argued that, it is evident that the Appellant pleaded quiet enjoyment’ that there was no place where the Respondent ever contested this suit of this Appeal talk less of joining issues with the Appellant over the evidence of quiet enjoyment of the Appellant on this land. This is contrary to the position of the lower court, which held that the interest of the Appellant principal over the land in question is inchoate ambiguous interest.
The Appellant further stated that throughout the proceedings at the rower court, there was no proof of compensation being received by the Gobir family for the Appellant’s principal which is contrary to the decision of the lower court that the Appellant had a case of money had and received against the Gobir family.
The Appellant further contended that the lower court confused the issue it raised suo motu and that the lower court was in a confused state of mind as to what was actually claimed by the Appellant and what the court imagined to have been claimed by the Appellant. He thereafter submitted that the trial courts decision lower court. He referred to the case of ODI v. OSAFILE supra. He finally submitted that on the strength of the Appellant’s initial submission above that the Ruling of the trial court has been caught by glaring miscarriage of justice, the Appellant urges this court to answer this issue in the affirmative.
RESOLUTION OF ISSUE 1:
1. The argument pertaining to this issue is on the construction to be placed on section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 which reads thus;
“every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of the evidence and final addresses and furnish all parties to the case or matter determined with duty authenticated copies of the decision within seven days of delivery thereof.”
There is no doubt that if a court fails to deliver its judgment within three months, such failure contravenes the above stated provision, thus, the judgment becomes null and void’ section 294 of the 1999 constitution was enacted to prevent judgment from being unduly delayed. As categorically stated by the Appellant’s counsel the lower court is likely to have muddled up the issue, facts, and the freshness of the demeanor of the witness is lost. The essence of the provision is to save such undue delay.
Any judgment or ruling delivered outside the 90 days as stipulated by the 1999 constitution has lost its potency and that mean it was delivered without jurisdiction, in Aribisafa v ogunyemi (2005) 6 NWLR (pt 921), the supreme court held inter-alia that:
“Jurisdiction is blood that gives life to survival of an action in a law, and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise”
I have taken my time to go through the record of proceedings of the lower court from the records’ on 22/1/09 the appellant adopted a written address and ruling was delivered in the case on 24/2/2009, that is just about 33 days after the adoption of the address of the appellant.
The attitude of the appellant’s counsel to and or misdirect this court is unethical and such attitude should be discouraged. I do not understand how the appellant calculated the date of the last address and the date Judgment was delivered to arrive at such date. This act should never be encourage castigate counsel here.
In view of the fact above issue one is resolved against the appellant to the extent that judgment was given with in the statutory period envisaged by the constitution contrary to the claim of the appellant.
ISSUE 2
1. whether, by the procedure adopted by the trial judge, the issues of propriety of endorsing the Appellant’s capacity of Attorney after the name of his principal and the issue of the propriety of instituting fundamental rights proceedings in the matter of money had and received by the Gobir family were raised and determination suo motu by the trial court. (Ground of Appeal No 2 and 3)
The Appellant argued that the lower court raised the issue of propriety of instituting fundamental right proceedings with non-absolute prayers and the Appellant filed his address dated 15/01/2009 in response to the said issue, but that the lower court re-constructed the issue and framed the issue that the Appellant claim was not covered by sections 44(1) (a) 9(b) of the 1999 constitution. By virtue of section 44(1)(b) 9 (b) which is hereby reproduced as follows thus;
“No moveable property or any interest in on immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that among other things
(a) Requires the prompt payment of compensation therefore; and
(b) Gives to any person claiming such compensation a right a right of access for the determination of his interest in the property and the amount of compensation to a court of tow or tribunal or body having jurisdiction in that part of Nigeria”
He thereafter submitted that for the lower court to have formulated an issue motu and heard same suo motu without recourse to the Appellant is an illegality.
He referred the court to SAVANNAH v. AJILO (1989)1 SCNJ pg 169 at 211.
The Appellant further argued that the lower court raised other issues suo motu and or reframed other issues to mean, the propriety of endorsement of the Appellant’s capacity as Attorney after the name of his principal and since issue 2 before the lower court is different, the lower court has delivered the Ruling on it, without listening to the Appellant. He referred to the case of SAVANNAH v. AJILO (supra).
The Appellant further referred this court to the case of ANAEDOBE v OSAFILE (2001) FWLR pt45 pg 718 at 71.8. wherein the Appellant endorsed his attorney’s capacity after the name of his principal in the title column of the said suit. He thereafter urged this Honourable court to answer this issue in the affirmative.
RESOLUTION OF ISSUES 2:
The term suo motu means when a judge raises an issue on his own motion.

Where an issue not in the contemplation of the parties and not before the court is raised, considered and concluded upon by the court, the issue is said to have been raised obiter. see HON. POLYCAP EFFIOM V CROSS RIVER STATE INDEPENDENT ELECTORAL COMMISSION (2010) LPELR SC 289/2008 It has been resolved and decided in different cases that a court cannot raise an issue Suo Motu and decide on same point without calling on the parties to address the issue. See UZO v NCP (2007) ALL FWLR (Pt.394) 370 at 387, OBAWOLE V WILLIAMS (1996) 10 NWLR (Pt.477) and OLUSANYA V OLUSANYA (1983)7 SCNLR 734
on this issue as raised by the appellant, the first point of in representative capacity was well-taken by the lower court and same has not prejudiced nor done any harm to the appellant and need not complain for same. This issue to my mind is of no basis as it is a mere academic venture that gets the appellant to nowhere .see AMEACHI v INEC (2008) 5 NWLR (pt.1080)
Without being immodest issue two has no substance and same is resolved against the Appellant.
ISSUES 3:
1. whether, by the adversary system of justice in Nigeria, the trial judge has made out a different case of money had and received by the Gobir family as well as a case of fiduciary relation of the said family arising from the inchoate ownership of the land in question by the Appellant’s principal where the Appellant presented a case of claim of compensation for respondent’s compulsory acquisition of the land in question to the trial court.
The Appellant’s argument is that since paragraph 9 of the supporting Affidavit states that a 3rd party “PURPORTED TO COLLECT THE COMPENSATION” early in January 2007, and paragraph 13 of the same affidavit states that the compensation was actually paid in the month of September, 2007 to some other land owners, then it is only logical that the clear and ordinary meaning of the words “purported to collect the compensation” in the above mentioned paragraph should mean that a 3rd party merely “ATTEMPTED” to collect the said compensation or “JUST APPEARED” before the Respondent to collect compensation early in the year 2007.
Appellant submitted that the lower court erred by reading paragraph 9 of the supporting affidavit in isolation. He referred to the case of AD V FAYOSE (2004) ALL FWLR PT 222  1719 at  1757.
Appellant contended that, if the lower court had not read paragraph 9 of the affidavit in isolation, extraneous words would not have been introduced to the case he referred to the case of EZEADUKWA v MADUKA (1997) 8 NWLR, (pt 518) 635 at 669 to support his argument.
Appellant further argued that it was because the lower court read paragraph 9 of the affidavit in isolation that led the court to come to the conclusion that the case of the appellant is that of tortuous case of money had and received as well as to a case of fiduciary relationship between the appellant and the Gobir family. He cited the case of EDEWOR v UWEGBA (1987) 2 SCNJ 18 AT 38.
He prayed this court to resolve issue three in his favour. RESOLUTION OF ISSUE 3:
To enable me get a clear picture, it will be wise to reproduce paragraph 9-14 of the appellant’s affidavit:
“(9) Early January 2007, the representatives of the Gobir family unilaterally purported to collect compensation of the subject matter of these proceedings on behalf of the applicant’s principal but without any authorization from the applicant’s principal to do so.
(10) On 16th January 2007, the applicant’s principal submitted her caveat emptor as well as her application for the compensation of the subject matter of these proceedings to  the secretary to the Honorable Commissioner for Lands and Housing at the Ministry and the said secretary endorsed the acknowledgement of receipt of some on o copy of the said caveat emptor and the application for compensation.
(11) The document stated in paragraph 10 above notified the Ministry and the state government of the applicant’s principal’s entitlement to the compensation of the subject matter of these proceedings which is part and parcel of the land acquired by the state government and it equally cautioned the Ministry not to pay the applicant’s principal’s compensation to the said Gobir family (herein attached is the caveat emptor and the application for compensation dated 15th January,2007 and marked exhibit ‘B’) (12) On 2nd August 2007, the applicant’s principal submitted her REMINDER to the secretary to the commissioner for lands and Housing at the Commissioner’s Office and the said secretary endorsed the acknowledgement of receipt of same on a copy of the document. The document was to refresh the memory of the state government and the Ministry of the previous caveat emptor and application for compensation (here attached is the REMINDER doted 17th July 2007 and marked Exhibit ‘C’) (13) Between 7th September, 2007 and 12th September, 2007 the Honorable Commissioner for land and Housing refused to list the applicant’s principal compensation in spite of ‘B’& “C” and despite the presence of the applicant’s principal in one of the conference rooms of the Ministry where the cheques for compensation were handed over to the other land owners in the Quarry area of Zongo, Ilorin (14) On 19th October, 2007 the applicant’s principal submitted her letter of Demand for  adequate Compensation and notice to make recourse to the judiciary to the secretary to the said Commissioner in the Commissioner’s office and the said secretary endorsed the acknowledgement of receipt of some on o copy of the document ( here attached is the  endorsed letter of Demand for Adequate Compensation dated 19th October, 2007 and marked Exhibit ‘D’).
(15) On 10th July, 2008 (264th day post service of the Exhibit D on the Ministry, the applicant sued the respondent before this Honorable Court for the actualization of his principal’s right to adequate compensation.”
The paragraphs highlighted above shows that the 3rd party has not collected the compensation as at the time the appellant is applying that the compensation should not be paid to the 3rd party.
I agree with the appellant that community reading should be giving to all the paragraph and paragraphs of affidavit should not be read in isolation see A.D v FAYOSE (2004) FWLR pt222 1799 at 1757 and AIGBE V NUT (2006) 16 NWLR(pt 1005) 258-259.
From the reproduced paragraph it is clear that the compensation has not been paid on the appellant’s property. The paragraphs of the affidavit show that compensation has not been paid on the appellants land.
The lower court erred in law by reading what was not in the paragraph into it, it is travesty of justice for a court of law to introduce or import what is not into it. See EZEADUKWA vs MADUKA (1997) 8 NWLR (pt 518) 535 and 669 paragraph F, ALAPO V AGBOKERE (2010) LPELR-SC 83/2004 AND IBULUYA V DIKIBO (1976) 6 SC 97 at 104. Reading extraneous words into a document is not allowed in the court of justice.
I am in agreement that if the lower court had not read what is not into the affidavit the conclusion would have been different. With utmost respect to the lower court, paragraph 9 never said the appellant nor the Gobir family whom were referred to as the third party has received compensation or has been paid compensation. Indeed the lower court made a wild inference and misconceived the whole issue by arriving at the conclusion that this is a case of tortuous case of money had and received. See EDEWOR V UWEGBA (1937) 2 SCNJ 18 and 38.
Courts are guided by the case of a plaintiff and not anything. See ADEYEMI V OPEYORI (1976) 9-10 sc 31.
To this extent, Issue three is hereby resolve in the favour of the appellant to the extent that the lower court had made out a different case for the appellant.
ISSUE 4:
Whether, from the evidence before the court, the trial judges’ decision that the appellant’s fundamental right proceeding before it, was inappropriate is a perverse decision.
Appellant argued that it is glaring from paragraph 13 of the supporting affidavit and page 5 of the record of Appeal, that the Respondent took no step to pay compensation on the land in question to the Appellant’s principal. In addition, paragraph 5 of the same affidavit, is also evident that the Appellant’s principal had been in customary ownership of the land without any interference of the 3rd party up till the time of the compulsory acquisition by the Respondent. It is also evident that the Appellant’s principal demanded for the payment of the compensation on the land in question far before the payment of compensation made in September 2007.
The Appellant’s argument here is that the failure of the Respondent to contest the suit of this Appeal before the trial court as well as their failure to contradict the said paragraph of the affidavit, only points to the fact that the evidence before the trial court supported the following;
a. That the Respondent refused to pay compensation to the Appellants’ principal, who was in sole quiet enjoyment of the land in question, despite his demand for compensation by the said principal far before the time of payment of the compensation by the respondent.
b. There is no shred evidence showing that the Gobir family is a joint or sole owner of the land at the time of acquisition.
c. There is no shred of evidence showing that the Gobir family was a representative of the Appellants’ principal for the purpose of compensation.
d. There is no shred of evidence showing that the Gobir family ever collected the said compensation from the Respondent, talk less of collecting it for and behalf of the Appellants, principal.
He referred to the case of SAGAY v SAGERE (2000) F.W.L.R., pt.7 pg 1111 at 1112, paragraph B & C to buttress the point that the decision of the trial court must be based on the evidence before it but not on whims & caprices of the judges
RESOLUTION OF ISSUE 4
Issue 3 and 4 of the appellant should been taken together as they have similar argument facts and submissions. Court acts on facts and evidence as placed before them and not on any extraneous matter or influence. The court is not allowed to import what is not into a case. see FATOBA v OGUNDAHUNSI (2003) 14 NWLR (PT.840) 323 AND IBWA V SASEGBON (2007) 16 NWLR (PT 1059) 195 at 214
The fact that the Respondent refused to pay compensation to the Appellants’ principal, who was in quiet enjoyment of the land in question, despite his demand for compensation by the said principal far before the time of payment of the compensation by the respondent coupled with the fact that there is no shred of evidence showing that the Gobir family is a joint ownership of the land at the time of acquisition, there is no shred of  evidence that the Gobir family was a representative of the Appellants, principal for the purpose of compensation. There is no shred evidence showing that the Gobir family ever collected the said compensation from the Respondent, talk less of collecting it for and behalf of the Appellants, principal and these facts were not disputed. These facts were not disputed and same should not be misconstrued as done by the lower court. See section 43 and 44 of the constitution of Federal republic of Nigeria, 1999.
By virtue of section 44 of the constitution which is hereby reproduced thus: “No moveable property or any interest in on immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that among other things
(a) Requires the prompt payment of compensation therefore; and
(b) Gives to any person claiming such compensation a right a right of access for the determination of his interest in the property and the amount of compensation to o court of law or tribunal or body having jurisdiction in that part of Nigeria.
Issue four is resolved in favour of the appellant against the respondent
ISSUE 5:
Whether, the trial court’s observation that it called for further address from the parties before it on the issue of propriety of the agent suing for his principal did not affect its decisions that the suit of this Appeal be amended. (Ground of Appeal No. 8).
The Appellants argument is that the lower court called for address of the parties on the issue of the propriety of the agent suing for his principal. Throughout the Record of Appeal, the trial court never called for further address on same issue, whereas at page 23 line 4 and page 22 line 11 of the record only for the appellant to see lower court observing that the trial court called for further address from the parties on the said issue of the propriety of the agent suing for his principal. Appellant further argued that, on the strength of the argument above the appellant’s submission is that the trial judges observations which cause the judge to hold that the originating process of the suit to be amended is a perverse observation because it was never borne out of the evidence and proceedings before the court. He referred this court to the case of GUARDIAN EXPRESS BANK PLC V OJUKWU (2007) 1 CWLR VOL 1253 at 283 paragraph B where the court of appeal Lagos Division held that an appeal might be made against an orbiter of a judge which radically influenced the decision of the court.
RESOLUTION OF ISSUE 5
Just like the resolutions in issues 3 and 4, the lower court misdirected itself and there was miscarriage of justice in his final conclusion. However in further resolution of issue 5, I shall seize the opportunity to touch on these other relevant issues.
Therefore in totality and based on the argument and submissions before this court it is clear that the lower court judge raised some issues suo motu without allowing the counsel to address on it and it is a miscarriage of justice for a lower court to read a paragraph of an affidavit in isolation of other paragraph. Similarly, it was observed that a trial judge read extraneous words into a document before it and this lead to misconception of fact.
Critically looking at the record of proceedings most especially, the lower court Judge signed, it has “24/02/2008” whilst the appellant is challenging the ruling of “24th February 2009”.
Even though the appellant’s action seems not to lack merit especially in view of section 43 and section 44 of the 1999 constitution of the Federal republic of Nigeria, whereby a party has right to acquire land and be paid compensation.
See section 43 and 44, of the constitution shall be reproduced here.
Thus: “No moveable property or any interest in on immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that among other things
(a) Requires the prompt payment of compensation therefore; and
(b) Gives to any person claiming such compensation d right a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.
By virtue of the combined provisions of section 43 and 44 of the constitution, the appellant is enabled to own and acquire property upon which he could enforce his rights under the fundamental Human Rights if his compensation in the event of acquisition was not paid.
For all the contradictions. conflict of judgments and bundle of confused facts relating to payments of compensation to Gobir family thereof, it is not certain what judgment is before this court for determination. In fact this is a situation in which this court would have declared this appeal as non competent before it but for the fact that there is no way this court would have known of all these discrepancies, confusions and conflicting judgment’s if the court did not proceed to the hearing of the appeal. Certainly or uncertainty of which judgment the court presiding upon is very vital and relating to its decision. The court is at of loss on which judgment to rely upon.
However when the Pandora box was flipped open, by the hearing of the appeal on 1st day of June 2011, we found only conflicting references to judgments. The judgment referred to by appellant in their brief is completely different from the judgment in the record of proceedings. Whilst the appellant glibly and without due respect to his lordship of the lower court, referred to the court in his submission in issue one that the trial court failed in the delivery of its judgment within ninety (90) days which happens not to be so, whist it seems in my humble view that the appellant’s counsel A. IBRAHIM is the one in fact more confused as to the state of payment of the compensation sought for and the crux of the appeal which is the ruling appealed against is ambiguous. Consequently issue 5 is hereby resolved against the appellant. It seems A. IBRAHIM ESQ is not clear on the date of the ruling and indeed, the ruling he is appealing against. Furthermore, the request that the trial judge be reported to the Chairman of the National Judicial Council (NJC) for disciplinary action for non-compliance by the trial judge with the provisions of section 294 (1) of the 1999 constitution of Federal Republic of Nigeria is obviously unfair on the part of appellant’s counsel Mr A. IBRAHIM considering the fact that he actually failed to do a proper calculation of the stipulated time under section 294 (1) of the 1999 constitution of the Federal Republic of Nigeria.
I seize this opportunity once more to appeal to counsel who derive pleasure in attacking the personality and dignity of judges instead of squarely fighting their cause of action or prosecuting their appeals to desist from unnecessarily attacking the judges except in deserved circumstances where the judges themselves have not acted responsibly. See a case of ANPP vs Regional Electoral Commissioner of Akwa Ibon state (2008) 8 NWLR (pt.1090) pg 453 at 528.
Consequently and further from the above the claim is not a tortuous case of money had and received, as could be gleaned from the record of proceedings and from the ruling dated 24th day of February 2008, although delivered on the 24th day of February 2009. There is no doubt that the ruling was actually delivered in 2009, because the lower court in her ruling stated, thus
“On the 8th day of October, 2008 on exparte application was moved before this court for leave to allow the applicant apply for the enforcement of her fundamental rights. Leave was granted and the motion on notice was moved on the 22nd day of October 2008 dafter (sic) service had been effected on the respondent who is the Commissioner for Land and Housing, Ilorin.”
There is no way the appellant’s right of action could lie in tort for money had and received in view of the clear and unambiguous provisions of Section 46 of the 1999 constitution of Federal Republic of Nigeria. A tort or tortuous act as being defined in Osborns Concise Law Dictionary is as follow:-
“an act which causes harm to a determinate person, whether intentionally or not, being the breach of a duty arising out of a personal relation or contract, and which is either contrary to law, or and an omission of specific legal duty, or o violation of an absolute right ( sir F. Pollock), A civic wrong for which the remedy is common Law action for unliquidated damages, and which is not inclusively the breach of a contract, or the of o trust or other merely equitable obligation (salmond).”
No Law or any decision of a court as applied by the trial court could vitiate the provisions of the constitution. The 1999 constitution of Federal Republic of Nigeria is the ground norm and it stands tall above all other Laws and procedure. Therefore the cases of Ramson Kuti vs A.G of Federation (1985) 2 NWLR (pt.6) 211 and chime & others vs. Chine (1995) 6 NWLR (pt.404) 734 at 765 etc, relied upon by the trial Judge are not apposite to this appeal.
From the foregoing, I find that the appeal is lacking in merit and in the interest of justice and in conclusion, tam obliged to disallow the appeal and also set aside the judgment of lower court, and accordingly hereby direct that the chief judge of Kwara state to reassign this mater to another judge to determine the action in line with the provisions of the law as reflected in section 46 of the 1999 constitution of the Federal Republic of Nigeria to wit
(1) Any person who alleged that any of the provisions of this chapter has been, is being or likely to be controvened in any state or relation to him may apply to d high court in that state for redress,
(2)subject to the provision of this commission, o high court shall hove original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issues such writs and give such directions as it may be consider appropriate for the purpose of enforcing or securing the enforcement within that state of  any right to which the person who make the application may be entitled under this chapter.
Finally and in the interest of justice and fair play this matter is hereby referred to the chief Judge of Kwara State to reassign this matter to another court for de novo hearing.

TIJJANI ABDULLAHI, J.C.A.: I have had the privilege of reading in draft, the lead judgment
of my learned brother, DENTON-WEST; J.C.A. just delivered. I agree with her line of reasoning and conclusion. I too allow the appeal and abide by the consequential order contained therein.

IGNATIUS IGWE AGUBE, J.C.A.: I agree.

Appearances

A. IBRAHIM Esq.For Appellant

AND

For Respondent