THE SURVEYOR GENERAL OF CROSS RIVER STATE & ORS v. MR. OPUTE JONATHAN & ORS
(2014)LCN/7394(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of July, 2014
CA/C/101/2012
RATIO
LAND LAW: RIGHTS OF OCCUPANCY; THE POWER OF THE GOVERNOR UNDER THE LAND USE ACT TO REVOKE EXISTING OR DEEMED RIGHTS OCCUPANCY
Section 28 of the Land Use Act, Cap L 5 LFN 2004 vests the Governor with wide power of revocation of existing or deemed Rights of Occupancy over the underdeveloped potion of Land around Nitel Quarters. Section 28 of the Land Use Act Cap L5 LFN 2004. Vest wide powers of revocation of existing rights over land within Cross River State for over-riding public interest, public purpose for breach of the provisions of S.10 of the Land Use Act, for failure to comply with this requirements specified in Section 9(3) of the Act. Adola vs. Gwar (2004) 34 NSCQR 543-568-569.
The power of the Governor under Section 28(6) & (7) of the Land Use Act to revoke existing rights over land in the state are limited only where the Rights of Occupancy are effectively rested in the Federal Government or any of its agencies. The preamble to the Land Use Act and Section 49(1) of the Act limited the governor’s powers of revocation where the land is already vested in the Federal Government or its agency before the Land Use Act came into effect on 29/3/1978 can only apply where the Land is effectively vested in the Federal Government or its agencies. Section 49(1) of the Act is inapplicable where the land is not effectively vested in the Federal Government or its agencies. per. PAUL OBI ELECHI, J.C.A.
THE MEANING OF WORDS: VESTED; THE MEANING OF ‘VESTED’
The word ‘vested’ according to Blacks Law Dictionary 8th Edition page 1595 is explained to mean:
“Having become a completed and consummated right for present or future enjoyment, not contingent, unconditional and absolute.” per. PAUL OBI ELECHI, J.C.A.
COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION TO AN ADJUDICATION AND THE JURISDICTION OF THE FEDERAL HIGH COURT IN CIVIL CAUSES AND MATTERS
The issue of jurisdiction is so fundamental and crucial that when ever it is raised, it should first be determined. Jurisdiction is said to be the body and soul of every judicial proceeding before any Court or tribunal and without it, all subsequent proceedings are futile, fruitless and a complete nullity. Mogaji Galadima vs. Alhaji Tanboi & 11 Ors (2000) 11 NWLR Pt.677, Page 1, NDIC vs. Central Bank of Nigeria & Anor (2002) 18 WRN 1 Afror Continental Nigeria Ltd. & Anor vs. Cooperative Association of Professionals Inc (2003) 5 NWLR Pt.813, Page 303, Alhaji Matari & Ors vs. Dangaladima & Anor (1993) 3 NWLR Pt 281, Page 266.
Indeed in the absence of jurisdiction, there is no competence to exercise the judicial powers vested in the courts by Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999 as amended. What then determines jurisdiction one may ask before going further in this judgment? It is the Plaintiff’s claim. Adeyemi & Ors vs. Opeyeri (1976) 1 FWLR 149, NSCC, the Supreme Court stated the position clearly as follows:
“It is a fundamental principle of Law that it is the claim of the Plaintiff which determines the jurisdiction”
Also Madukolu vs. Nkemdili & Ors (2001) 46 WRN 1, (1962) 1 ALL NLR 587 at 595.
In the case at hand, the Court being referred to in this case at the Lower Court is the Federal High Court, Calabar Division. S.251(1)(p)(q)(r) of the 1999 Constitution of the Federal Republic of Nigeria as amended provides for the jurisdiction of the Federal High Court in civil causes and matters thus:
“(1) 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 Shell have and exercise jurisdiction to the exclusion of any other Court in civil causes and matter.
(p) The administration or the management and control of the Federal Government or any of its agencies.
(q) Subject to the provisions of the Constitution, the operation and interpretation of this constitution in so for as it affects the Federal Government or any of its agencies.
(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive action or decision by the Federal Government or any of its agencies”
The claim of the Respondents reads as follows:
(a) ” An Order enforcing or securing the enforcement and protection of the Applicant’s Fundamental Rights as enshrined in Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
(b) An Order restraining the Respondents and their agents from interfering and or further/attempting to seize, take possession on measure the immovable property of the Applicants situate at NITEL SENIOR STAFF QUARTERS, MIKOT UDUAK OFF MCC ROAD Calabar pending …” per. PAUL OBI ELECHI, J.C.A.
PRACTICE AND PROCEDURE: PARTIES TO A SUIT; WHETHER THERE IS NO PARTY THAT CAN BE CONSIDERED AS NECESSARY IN A SUIT WITHOUT WHICH THE MATTER CANNOT BE SETTLED
Whether the Federal Ministry of Communication or whosoever is joined or not, does not mean so much as far as this case is concerned. Infact there is no party that can be considered as necessary in a suit without which the matter can not be settled. Green vs. Green (2001) 45 WRN 90. See also Peenok Investment Ltd. vs. Hotel Presidential Ltd. (2011) ALL FWLR Pt 571 page 1428 at 1458. per. PAUL OBI ELECHI, J.C.A.
JUSTICES
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
1. THE SURVEYOR GENERAL OF CROSS RIVER STATE
2. GOVERNMENT OF CROSS RIVER STATE
3. THE AIG ZONE 6, CALABAR Appellant(s)
AND
1. MR. OPUTE JONATHAN
2. MR. ESHIET ALEXANDER J.
3. MR. ODUAK AKPAN PETER
4. MR. ODEY ANTHONY OGBORIKU
5. MRS. IHEBOM ANGELA CHIMA
6. MR. BALOGUN ADEWALE AYINLA
7. MR. OKO ISONDI AUGUSTINE
8. MR. E.B ETIM
9. MR. U. U. NKANU
10. MR. E. A. ENOIDEM
11. MR. FRIDAY VICTOR FRANK
12. ENGR. D. E. BASSEY Respondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is the appeal against the Judgment of the Federal High Court Calabar in suit No FHC/CA/C3/3/2008 delivered on the 9th July, 2009. The Respondents after obtaining the leave of the Federal High Court, Calabar on the 2nd May 2008, filed a joint Motion on Notice for the enforcement of their fundamental rights. They sought for the following reliefs:
1. An order enforcing or securing the enforcement and protection of the applicant Fundamental Rights as enshrined in Sections 43 and 44 of the Constitution of the of the Federal Republic of Nigeria 1999.
2. An order restraining the Respondents and their agents from interfering/attempting to seize, take possession/measure the immovable property of the Applicants situate at NITEL SENIOR STAFF QUARTERS, IKOT UDUAK OFF MCC ROAD, CALABAR pending the determination of this application for enforcement in terms of the relief sought in the statement accompanying the affidavit in support of the application for leave to apply for the Order on the grounds set out in the copy statement served herewith, used on the application for leave to apply for such Order.
The Motion on Notice was accompanied with 26 paragraphs of affidavit deposed to by Odey Anthony Ogboriku (4th Respondent), on behalf of all the respondents who introduced themselves as retired NITEL STAFF inoccupation of the flats at NITEL SENIOR STAFF QUARTERS IKOT UDUAK CALABAR. There is also a statement, a verifying affidavit and service and several exhibits attached.
Upon service of the motion on notice, the Appellants filed a counter-affidavit of ten paragraphs on the 3/11/2008 and another 16 paragraphs further counter-affidavit on the 17/11/2008. By order of Court dated 30/6/2009, the counter-affidavits and accompanying written addresses were deemed properly filed and served.
FACTS OF THE CASE
In 1973, the Cross River State Government acquired a total of 10.443 hectares (104.430 meter square) of undeveloped land at Ikot Uduak, Off MCC, Calabar for transmission to the Department of Post and Telecommunications P & T now to NITEL to build its WHP centres and staff quarters. Despite the absence of vested perfect title over the land, the Post and Telecommunications entered into the land and developed 2.639 hectares (26.390m) only as Senior Staff Quarters out of the total area of 10.443 hectares (104.430m) originally intended, leaving a balance of 7.804 hectres (78,040m2) rejected, undeveloped and abandoned since 1973. It is this portion in which the Governor of Cross River State revoked all its existing or deemed existing rights that the Respondents are challenging in this suit. The trial High Court after argument by the parties delivered its judgment on the 9/7/2009 awarding all the undeveloped 7.804 hectares (78.040m2) of land to the Respondents. It is against this said judgment that this appeal has arisen.
ISSUES FOR DETERMINATION
In arguing her appeal, the Appellants formulated seven grounds of appeal on their notice of appeal filed on the 4/9/2009 to wit:
GROUND ONE: ERROR IN LAW
The learned trial judge erred in law because he lacked the jurisdiction to hear and entertain a matter in which the Federal Government or its agency was not a party.
PARTICULAR OF ERROR
1. S.251 of the Constitution of the Federal Republic of Nigeria, 1999 cloths the Court with jurisdiction to hear certain matters and against certain bodies.
2. The Applicants/Respondents are not the Federal of Nigeria or any of its Agencies.
3. NITEL, Federal Government Agency which sold the flats to the revocation of their rights over the under-developed portion of the land.
GROUND TWO: ERROR IN LAW
The learned trial judge erred in Law in adjudicating upon a matter involving ownership of undeveloped land between Applicants and Respondents.
PARTICULARS OF ERROR
1. The subject matter of the suit was ownership of undeveloped land situate of MCC Road, Ikot Uduak, Calabar.
2. The Federal Government or its agency was not a party in the suit.
3. The Applicants/Respondents are not agents of Federal Government and have no mandate of the Federal Government to originate the suit.
GROUND THREE: ERROR IN LAW
The learned judge erred in Law when he held that the Applicants have locus standi to institute this suit.
PARTICULARS OF ERROR
1. The Applicants/Respondents being retired staff of NITEL acquired NITEL SENIOR STAFF QUARTERS COMPRISING 2 No. block of flats (5 Nos. two bedroom flats and 6 Nos. Three bedroom flats) with boys quarters/garages at Ikot Uduak Off MCC Road, Calabar, Cross River State.
2. The advertisement by NITEL in the punch newspaper of 2nd May, 2007 at page 40 item 220 – NITEL Senior Staff Quarters, Ikot Uduak Off MCC Road, Calabar also referred to flats and not undeveloped land.
3. All the biding/Acceptance forms and the lease agreements (Exhibit A – D) attached to Applicants/Respondents motion on notice all referred to flats and not undeveloped land.
4. The Applicants/Respondents did not buy any undeveloped land; have no title over any undeveloped land, and have no legally enforcement right over the land in issue.
5. The Applicants have no locus standi to request for adjudication in respect of the undeveloped portion of about 7.804 hectares (78.040m2), which was neither advertized for sale nor bought by the Respondents.
GROUNDS FOUR: ERROR IN LAW
The Learned trial judge erred in law when he held that the Government of Cross- River State was not right in revoking the right of occupancy existing or deemed to exist in all that undeveloped piece or parcel of land lying behind NITEL Staff Quarters at (Ikot Uduak) in Calabar Municipality of Cross River State of Nigeria.
PARTICULARS OF ERROR
a) The Government of Cross River in 1973 gave the Federal Government 10.443 hectres (104.430m2) of land for use by the ministry of communications (Department of posts and Telecommunications, P & T), now NITEL to build its VHF Centre and Staff Quarters.
b) The Ministry of Communication developed 2.63 hectares (26.390m2) for staff quarters leaving 7.804 hectares (78.040m2) undeveloped and abandoned which became farm land to trespassers and hiding place for miscreants and hoodlums.
c) Since the Ministry of Communications failed to develop substantial portion of the land from 1973 (33 years), the Government of Cross River State desirous of utilizing the developed portion of the land for overriding public interest revoked same.
d) The learned Trial Judge descended into the arena to make out a case for the applicants/Respondents against the Respondents/Appellants.
e) If NITEL had use for the undeveloped portion it would not have specifically advertized the flats 51.300m2 for sale instead of the entire land comprising 104.430m2.
GROUND SIX: ERROR IN LAW
The learned trial judge erred in law when he held that the Respondents/Appellants violated the Applicants/Respondents right to acquire and own immovable properties anywhere in Nigeria of which Calabar is a part of, as guaranteed in Sections 43 and 44 of the CFRN 1999.
PARTICULARS OF ERROR
a) The Government of Cross River State did not dispute or contest Applicants usufructuary rights granted to them by NITEL in respect of the flats purchased by them.
b) The Survey Plan exhibited by the Respondent/Appellants clearly shows that Government is not interested in the Applicants/Respondents flats occupied by them.
c) Paragraph one of the notice of revocation clearly states that “notice is hereby given that all rights of occupancy existing or deemed to exist on all that undeveloped piece or parcel of land lying behind NITEL, staff quarters of Ikot Uduak”. And no reference is made to the flats occupied by the Applicants/Respondents.
d) The Applicants did not show clearly in what manner their civil rights and obligations protected by law in relation to the flats they acquired and are residing in, are being breached or likely to be breached by the revocation published by the Respondents.
e) NITEL or the Federal Government have not complained about the Revocation by the Appellants.
GROUND SEVEN: ERROR IN LAW
The learned trial judge erred in law when he held thus:
“This Court has scrutinized Exhibit A which is Federal Government of Nigeria’s Punch advert of 2/5/2007-Invitation to Bid Sale of Non-Core Assets of NITEL, NITEL staff pension fund, S/No.220 stating the property address, property types and land area, Exhibit -Offer of lease instant to the applicants, Exhibit C-C7, D-D2 and opine that the property area sold to then applicants by the Federal Government of Nigeria is 51.300m2 of land as stated by the Applicants’ counsel in his submissions”.
PARTICULARS OF ERROR
(a) The Respondents/Appellants contended that the entire land is 104.430m2 out of which NITEL developed 26.390m2 leaving 78.040m2 undeveloped.
(b) The Applicants/Appellants contended that they bought flats with an area of 51.300m2.
(c) Even if the Court found that the property area sold to the Applicants/Respondents by the Federal Government of Nigeria was 51.300m2 of land as stated by the Applicants, counsel in his submissions, it would have limited its award to the Applicants/Respondents 51.300m2 and not the entire undeveloped land.
(d) The learned Trial Judge descended into the arena to make out a case for the Applicants/Respondents against the Respondents/Appellants by embarking on a historical treatise on the meaning of appurtenances to justify his award.
(e) The Court granted to the Applicants/Respondents what they did not ask for, and this has occasioned a miscarriage of justice.
FOUR ISSUES WERE RAISED FOR DETERMINATION
ISSUE 1:
Whether the trial court acted without jurisdiction in entertaining a suit in which the Federal Government or any of its agencies was not a party when the extent of land sold by the Federal Government to the Respondents.
ISSUE 2:
Whether the trial Court was right in holding that the Respondents have locus standi to enforce their fundamental rights over the undeveloped portion of the land which is not vested in them or their lessors.
ISSUE 3:
Whether the trial Court was right in nullifying the revocation of all existing or deemed rights of occupancy of land situation would NITEL senior staff quarters, Ikot Uduak, off MCC, Calabar by the Governor of Cross River State.
ISSUE 4:
Whether the trial Court was right in holding that the rights of the Respondents to acquire and own property in Nigeria under Section 44 of the Constitution of the Federal Republic of Nigeria 1999 as amended were violated by the Appellants.
ISSUE 5:
Whether the trial court was right in awarding to the Respondents 78.040m2 (7,804 hectares) of undeveloped land around NITEL senior staff quarters, Ikot Uduak, off MCC, Calabar when the Respondents actually purchased flats within specified area of 51.300m2 (5.13 hectres) advertised in the Punch Newspapers of 2/5/2007.
Issue 1 above is distilled from grounds 1 & 2, issue 2 from ground 3, issue 3 from ground 4 and 5, issue 4 from grounds 6 while issue 5 is distilled from ground 7 of the grounds of appeal. Accordingly to Appellant’s Counsel issues 1, 2 & 5 will be argued together.
On issue No. 1 above, Learned Appellant Counsel Mr. Ikoi E. Ikona, Director of Civil Litigation, Ministry of Justice Calabar submitted that the trial Court lacked the jurisdiction to entertain suit No. FHC/CA/CS/3/2008. Also, that the court cannot on its own expand or reduce its jurisdiction. Gafa vs. Government of Kwara State & 2 Ors 2007, 1-2 SC 189, That by Section 251(1)(p)(q) of the 1999 Constitution as amended provides for the jurisdiction of the Federal High Court in Civil Causes, Section 251(i)(r) specifically vest jurisdiction to handle matters in which the executive or the administrative action of the Federal Government or any of its agencies is in issue. He stated that the undeveloped land in issue was the land acquired by the state Government for the Federal Government Agency, post and Telecommunications, Abuja now NITEL/MTEL under the Federal Ministry of Communications, Abuja. NITEL/MTEL Staff Pension Fund in litigation offered for sale flats in their senior staff quarters, Ikot Uduak, off MCC Calabar.
All the flats offered for sale were bought by the Respondents in these quarters with their appurtenances are contained within an area of 51.300m2 (5.13 hectres). Instead of the Respondents limiting their claims to the flats bought by them within the area of 51.300m2 (5.13 hectares) they are now claiming 78.040m2 (7.804 hectares) ie they are claiming additional 26.740m2 (2.674 hectares) of undeveloped land adjourning the NITEL quarters in addition to the actual 51.300m2 (5.130) hectares advertised for sale by NITEL/MTEL Staff Pension Fund in liquidation and bought by the Respondents. He stated that the right of the ownership of the above piece of land cannot effectively be determined without joining the Federal Ministry of Communication or the NITEL/MTEL Staff Pension Fund in liquidation or whosoever that inherited same. Without the above parties Learned Appellant’s Counsel submitted that the trial Court acted without jurisdiction. See Ekpere vs. Aforihe (1973) 3 SC 117, Plateau State vs. Attorney General of the Federation & 2 Ors (2007).
According to Mr. Ikona the main issue for determination in this appeal is the ownership of the undeveloped portion of land around NITEL Quarters, Ikot Uduak, off MCC Calabar. Since title is in issue 1, the trial Court lacks the jurisdiction as contained in the Section 251 of the Constitution of the Federal Republic of Nigeria as amended. Also the Fundamental Rights Enforcement Procedure Rules 2009 does not extend to land matters. Adetayo & 2 Ors vs. Ademola & 2 Ors (2070) 3 – 5 SC Pt 87. Learned counsel then submitted that the section amended on acquisition of land by citizens does not vest the trial Court with jurisdiction on title to undeveloped land and urged the Court to resolve this issue in favour of the Appellant.
On issue No 2, Learned Appellant counsel submitted that the trial Court erred in Law in holding that the Respondents have locus standi to institute the suit. Where there is lack of locus standi, the suit must be struck-out as being incompetent. Owodunni vs. Registered Trustee of C.C.C. (2000) 6 SC Pt.111, page 60.
The Court he said always looks at the statement of claim to determine whether or not a Plaintiff has locus standi. See Adesokan vs. Adegorolu (1997) 3 NWLR Pt.494, Page 261. Pam & Anor vs. Mohammed & Anor (2008) 5-6 SC (Pt.1) Pages 83.
The Respondents on page 78 of the records particularly paragraphs 1 & 7 of the record of appeal, the Respondents are retired Nitel staff who bought 2 No. block of the Flats (5 Nos. two bedroom flats with boys quarters (garages) at Nitel Senior Staff Quarters Ikot Uduak Off MCC Calabar. The advertisement by NITEL/MTEL Pension Fund (in liquidation) in the Punch newspaper of 2/5/2007 at page 40 item 220 (See page 87 of the records) expressly listed flats with their boys quarters/garages for sale.
The offer of leasehold, the acceptance by the Respondents and the documentation evidencing the transaction between the Respondent and NITEL conclusively pointed to the sale/lease of flats and cannot refer to all the undeveloped land around the quarters. Exhibits A, B,-B7, C-C7 and D-D7 established the above transaction.
“Flat together with all appurtenances, right of way easement and principles retailed there to” as interpreted by the trial Court to include the undeveloped portions of the land is not legally justifiable according to Appellants’ counsel.
The Respondents only purchased the flats and not the undeveloped portion of the land. As a result therefore they have no recognizable right to be enforced by a breach. Then Learned Counsel urged the Court to uphold this issue in favour of the Appellant.
Issues 3 & 4 are argued together Learned Appellant’s Counsel submitted right away that the Respondents Fundamental Rights to, acquire and own property in Nigeria under Section 44 of the 1999 Constitution were isolated by the revocation of existing or deemed Rights of Occupancy over the undeveloped position of land around Nitel Quarters, Ikot Uduak, off MCC Calabar by the Governor of Cross River State of the 3/8/2007.
Section 28 of the Land Use Act, Cap L 5 LFN 2004 vests the Governor with wide power of revocation of existing or deemed Rights of Occupancy over the underdeveloped potion of Land around Nitel Quarters. Section 28 of the Land Use Act Cap L5 LFN 2004. Vest wide powers of revocation of existing rights over land within Cross River State for over-riding public interest, public purpose for breach of the provisions of S.10 of the Land Use Act, for failure to comply with this requirements specified in Section 9(3) of the Act. Adola vs. Gwar (2004) 34 NSCQR 543-568-569.
The power of the Governor under Section 28(6) & (7) of the Land Use Act to revoke existing rights over land in the state are limited only where the Rights of Occupancy are effectively rested in the Federal Government or any of its agencies. The preamble to the Land Use Act and Section 49(1) of the Act limited the governor’s powers of revocation where the land is already vested in the Federal Government or its agency before the Land Use Act came into effect on 29/3/1978 can only apply where the Land is effectively vested in the Federal Government or its agencies. Section 49(1) of the Act is inapplicable where the land is not effectively vested in the Federal Government or its agencies. The land in dispute was not effectively vested in the Federal Government or its agency, Post or Telecommunication (P & T) now Nitel before the Land Use Act came into effect on 29/3/1978. The exchange of correspondence for the acquisition of the land between the State Government Post and Telecommunication department of the Federal Ministry of Communication started from the 5/7/1973 as clearly shown in paragraph 5 of the Appellant further counter-affidavit filed on 17/11/2008 at page 159 of the record of appeal, and exhibit M.O.J. ‘A’A attached to the record of appeal.
Also is Exhibit M.O.J. ‘B’ if for whatever reason any land is vested in the Federal Government or its agency which can not be revoked by the Governor, than it is either the 26.309m2 (2.639 hectares) developed or the 51,300m2 (5.13 hectares) advertised for sale and accepted by the Respondents.
It can not be the whole land around the quarters measuring appropriately 78.040m2 (7.804) hectares. It was on that basis that Mr. Ikoi E. Ikona submitted that the trial Court acted in error in holding that the entire undeveloped land around the Nitel Staff Quarter Ikot Uduak,Calabar was already vested in the Federal Government or its agency, Nitel pursuant to Section 49(1) of the Land Use Act and can not be revoked by the Governor. The court, he said also erred in Law by nullifying the revocation of all existing rights over the entire land by the state governor on the 3/8/2007.
The trial Court should have restricted itself to the 51.300m2 (5.13 hectares) advertised by Nitel and accepted by the Respondents. He then urged the Court to hold these issues 3 & 4 in favour of the Appellant.
Issue No. 5: On this issue Learned Appellants Counsel submitted that the trial Court awarded more undeveloped land to the Respondents than what they claimed or are entitled to. He went on to adopt all arguments proferred for issue 3 & 4 in respect of issue No. 5. He stated that so far, the documentation of the transaction between NITEL/MTEL and the Respondents conclusively pointed to the sale of the flab in boys quarters/garage within the are of 51.300m2 (5.13) hectres. But the Court awarded to the Respondents 78.040m2 (7.04 hectares) advertised and additional 26.740m2 (2.674 hectares). This he submitted is not supportable in Law as the court is not a ‘father Christmas’ and can not grant a relief not claimed or give more than what is sought for by a party. Falomo vs. Bangbe (1998) 6 SC 141.
Finally, he urged the court to uphold the appeal and set aside the judgment of the trial court. In the Appellants reply brief dated 6/6/2013 and filed same date, Learned counsel for the Appellant contended that the mere joining of the Inspector General of Police Zone 6, Calabar as 3rd Respondent was meant to give the Federal High Court a semblance of jurisdiction to hear the suit which it did not have. Alhaji Lawal Zakari vs. Inspector General of Police (2000) 6 NWLR Pt.670, page 666 at 683 and other cases cited by the Respondent on this issue is not applicable.
Also, that contrary to c (9) of the Respondents brief, that the Appellant did not change the case of the Appellant/Respondents by insisting that title to land is involved in this particular suit. It is only defined and ascertainable rights to immovable property that are enforced under Section 43 of the Constitution. He then submitted that since this particular suit deals on the quantum of land/interest acquired by the Applicants, the suit ought to have been filed at the state High court in accordance with Section 39(1) of the Land Use Act 1978 and not the Federal High Court.
Contrary to paragraph D4 of the Respondents brief, he submitted that there is no inconsistency in paragraph 6 of the Appellant’s counter-affidavit at page 155 of the records. The Respondents never filed any further affidavit contradicting the deposition in paragraph 6 of the further counter-affidavit being attached by them. The said paragraph 6 is clear.
On joinder, counsel submitted that the failure of it can not estop the Appellants from raising the issue of Nitel as a necessary party.
The Appellant raised the issue of jurisdiction at the trial Court when it challenged the locus standi of the Respondents. Therefore the issue of jurisdiction is not a fresh issue as an issue of jurisdiction can be raised at anytime and even on appeal without leave of Court. Texaco vs. Shell (2002) 2 SC Pt.11, page 1 at 3. On the whole, he urged the court to allow the appeal and set aside the judgment of the lower Court.
In reply, the Respondents adopted their brief of argument on the 20/5/2014 and after reviewing the facts of the case distilled two major issues for determination thus:
1. Whether the trial Court had jurisdiction to try the case?
2. Whether the Cross River State Government has powers to revoke land vested in the Federal Government and any of her agencies?
In arguing issue No. 1 above, Learned Counsel for the Respondents Mr. Ikpeama Onyeanwu submitted that the trial Court was adequately seized with the jurisdiction to try the case both as to the parties and as to the subject matter. Jurisdiction he defined as the bedrock and standing, clothing the Court and parties with the authority to prosecute a matter. Madukolu vs. Nkemdilim (1993) 2 SCNLR. page 341. And that the jurisdiction of the Court can be determined by the presence or absence of the subject matter the Constitution of the Court and the proper parties.
Learned Counsel referred the Court to the claim of the Respondents as per the records. He stated that the Respondents claim to their fundamental right to immovable property ie the houses and appurtenances is provided by Sections 43 and 44 of the Nigerian Constitution 1999 which was in operation then. The said Sections 43 & 44 fall under Chapter 4 of the Nigeria Constitution 1999 dealing with Fundamental Rights of Nigerian. He referred to Order 1, Rule 2(1) and Order 1 Rule 2 of the Rules and submitted that both the Federal High Court and the High Court of a state have concurrent jurisdiction to entertain cases based on Fundamental Right Enforcement. Grace Jack vs. University of Agric Makurdi (2004) 12 FWLR Pt.239 page 76, Dayo Omosowan & Ors vs. Chidozie (1998) 9 NWLR Pt.566, Page 477, Also Alhaji Lawal Zakari vs. Inspector General of Police (2000) 6 NWLR Pt.670, Page 666.
Furthermore, the Respondents as applicants in the lower Court sued the 3rd Respondent therein ie the Assistant Inspector General of Police Zone 6, Calabar. By the provisions of Section 251(1)(p)(q) & (r) of the 1999 Constitution in force then, the 3rd Respondent is an agent of the Federal Government. Adetona vs. Igele General Enterprises Ltd. (2011) ALL FWLR Pt.569 page 1025, where the Court held that by the provisions of Section 46(1) and 251 of the Constitution of the Federal Republic of Nigeria 1999 a persons Fundamental Right is breached, that person may apply to the judicial division of the Federal High Court of the State in which the breach occurred or is occurring or about to occur. On the authority of Alhaji Lawan Zakari vs. Inspector General of Police (supra) it is beyond question that the police force is an agency of the Federal Government and any action against the police or any of the high ranking officers representing her will be instituted at the Federal High Court.
On the totality of the above submission, Learned Respondent’s Counsel then urged the Court to hold and rightly too that the Federal High Court Calabar had the jurisdiction to entertain the suit both by the subject matter ie the cause of action and the presence of the parties.
On the cause of action in this suit he referred to the Respondents claim which is for the enforcement of their Fundamental Right to property as guaranteed and protected by Law as can be seen in the motion paper and statement. The validity of claim in Court is determined by the Plaintiff’s claim and not by the defence of the defendant. See Ijebu Ode Local Government vs. Segun (2004) 12 FWLR Pt.242, Page 560 at 583 – 584. As a result therefore, the Appellants can not change the case of the Applicants as they sought to do by stating that the issue before the Court is title. He urged the Court not to allow it, and to resolve this issue in favour of the Respondents.
On issue No. 2, Learned counsel referred the Court to paragraphs 4 – 8 of the Appellant’s further counter-affidavit at pages 157 – 158 of the records. That in unequivocal term, the Appellant stated that they gave the Federal Government a total of 10.443 hectares of land and out of which a total of 2.63 hectares leaving 7.804 hectares undeveloped. Also that the Appellants in paragraphs 7 of the counter-affidavit Page 155 of the record) agreed with the Respondents in paragraph 19 of the affidavit (page 8 of the records) that they farm on the land.
Based on that the Appellants having accepted that the rest of the land forming the appurtenances of the property in issue is farmland of the Respondents cannot approbate and reprobate at the same time as they did in paragraph 10 of the further counter-affidavit (page 158 of the records) where they now deposed that the undeveloped portion became farmland to trespassers and hiding place for miscreants and hoodlums. This attitude he said cannot be allowed by the Court. See Aregbesola vs. Oyinlola (2011) All FWLR Pt. 570, page 1292 at 1392.
Learned Counsel them drew the attention of the Court to the inconsistencies in paragraph 6 of the Appellants counter-affidavit (page 155 of the record) wherein they said that having acquired the land and handed over same to the Federal Government that they retained interest in the adjourning plots of land that were not handed over to the Federal Government however in paragraphs 7 & 8 of their counter-affidavit (page 158 of the record) the Appellants story was that their land acquired/given to the Federal Government was 10.443 hectares but that the Federal Government developed only a part of it. According to him, the correct version of the story is that the entire land was given to the Federal Government and her agency, Department of post & Telecommunications (P & T and later Nitel) which developed part of it. The Appellants having seen that a portion of the land remained undeveloped became interested and sought to take it over. This is precisely in accordance with paragraphs 7 – 11 of their further affidavit at page 158 of the records. The version of the story in paragraph 6 of the counter-affidavit (page 157 of the record) is not true because the land given to the Federal Government was a virgin land and the Appellants cannot be said to retain an undeveloped portion since the land was yet to be built up. Learned Counsel then maintained and stated that he has established the following that:
a) The Respondents were offered the property in issue.
b) That having paid the required deposit and fulfilled all other formalities, hove on interest in the land.
c) The letters of offer given to the Respondents over the property was not just their flat but include “together with all the appurtenances rights of way, easements and principles related thereto.”
d) They have exercised rights over the entire parcel of land measuring 10.443 hectares. (paragraph 19 of the affidavit at page 8 of the record)
e) They have unequivocally stated in paragraph 11 of their affidavit (page 8 of the records) that the Appellants carried out “a survey of the land and appurtenances attached to and forming part of the property…”
f) It is agreed among parties that the property belongs to the Federal government and her agency and upon liquidation and on intent to sell the property, the Respondents have made an offer for which part performance has done.
Based on all the above, he submitted that the relevant parties necessary for the Court to assume jurisdiction are present. Madukolu vs. Nkemdilim (Supra).
On the need or otherwise to join Nitel or its liquidator, learned counsel submitted that there is no need to join either of them in view of the provisions of Section 49 of the Land Use Act. Peenok Investment Ltd vs. Hotel Presidential Ltd. (2011) ALL FWLR Pt.571 page 1428 at 1458 where the Court held that no party can be considered as necessary without which the matter cannot be settled. Not even the Appellants applied for such a joinder nor did not the Court suo motu.
Also raising an issue of joinder in this appeal amounts raising fresh issue without leave of Court makes it, liable to be struck-out. New Resource International Ltd. vs. Ejike Orawusi (2001) ALL FWLR Pt. 577, Page 760, Agbeola vs. UBA PLC (2011) ALL FWLR Pt.574, Page 74 at 91.
On the issue raised by the Appellants on issue 1, the Appellants did not depose to such issue as to the joinder/presence or otherwise of the Federal Government or her agency. The two affidavit evidence of the Appellants at pages 154-155 & 157 -158 of the records are clear. Counsel in his address did not mention it. However, even if he did, it will go to no issue as counsel address cannot take the place of evidence. Oloruntoba Ojo vs. Abdul-Raheem (2009) FWLR Pt.483, Page 6485. He then urged the Court to discountenance the argument in issue 1.
The Appellants by their admission and documents attached maintain that the piece of land was given to the Federal Government and her agency in 1973. The Land Use Act came into force in 1978. That means according to counsel that the land measuring a total of 10.443 hectares was already vested in the Federal Government and her agency (P & T or Nitel) The Land Use Act opened with a preamble or an explanation of the purport and intended operational basis of the Law. It states thus:
“An Act to vest all land comprised in the territory of each state (Except Land vested in the Federal Government or its agencies) solely in the governor of the state…”
The word ‘vested’ according to Blacks Law Dictionary 8th Edition page 1595 is explained to mean:
“Having become a completed and consummated right for present or future enjoyment, not contingent, unconditional and absolute.”
Therefore, the above definition clearly took cognisance of the fact that having in 1973 passed title/ownership to the Federal Government and her agency, the right of the Appellants is completely extinguished since the passage of the title is absolute. Learned Counsel stated that to drive home the point. Section 49(1) & (2) of the Land Use Act provides thus:
“Nothing in this Act shall affect any title to land whether developed or undeveloped held by the Federal Government of the commencement of this Act and accordingly any such land shall continue to rest in the Federal Government or agency concerned”
It is counsel further submission that the Appellants by Section 49 of the Land Use Act lack the locus to access or determine or ascertain the size or extent of the land given or being sold to the Respondent and called them meddlesome interlopers. The only body that has the right to ask such question if any and in the event that it feels that what the Respondents have taken more than it gave is the liquidator.
He argued that the Respondents have a right to maintain action and word off the Appellants because what was given to the Respondents by the offer of leasehold interest are the blocks and flats referred to as the property.with all appurtenances, rights of way, easement and privileges thereto. He then submitted that the Appellants who are trespassers are not in a position to determine what constitute the appurtenances. Beyond the building there is an appurtenance attached to it which is why the Respondents have used the remaining space as their garden and submitted that this was the intention of the Federal Government.
The word ‘appurtenance’ has been defined in the Blacks Law Dictionary 8th Edition page 111 as:
“Something that belongs to or is attached to something else, the garden is an appurtenance to the land.”
Furthermore, he argued that the opening words of 54.9(1) of the Land Use Act that “Nothing in this act shall affect any title to land…” to the effect that all actions of the Appellant pursuant to Section 28 of the Land Use Act ie publication of notices of revocation over the subject matter go to no issue as they are not capable of changing the status quo of the ownership of the Land rested in the Federal Government and her agency.
In the final analysis, the urged the Court to affirm the judgment of the Federal High Court Calabar with its consequential orders.
The main issue for determination on this appeal is the ownership of the undeveloped portion of the land around NITEL Quarter Ikot Uduak off MCC Calabar which the Respondents use for farming purposes. This is really the bone of contention in this case. This is so because no person is really quarrelling with the ownership or right over the flats purchased by the Respondents individually. The first issues more or less adopted by both parties for the just determination of this case is;
“Whether the trial Court had the jurisdiction to try this case”
The issue of jurisdiction is so fundamental and crucial that when ever it is raised, it should first be determined. Jurisdiction is said to be the body and soul of every judicial proceeding before any Court or tribunal and without it, all subsequent proceedings are futile, fruitless and a complete nullity. Mogaji Galadima vs. Alhaji Tanboi & 11 Ors (2000) 11 NWLR Pt.677, Page 1, NDIC vs. Central Bank of Nigeria & Anor (2002) 18 WRN 1 Afror Continental Nigeria Ltd. & Anor vs. Cooperative Association of Professionals Inc (2003) 5 NWLR Pt.813, Page 303, Alhaji Matari & Ors vs. Dangaladima & Anor (1993) 3 NWLR Pt 281, Page 266.
Indeed in the absence of jurisdiction, there is no competence to exercise the judicial powers vested in the courts by Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999 as amended. What then determines jurisdiction one may ask before going further in this judgment? It is the Plaintiff’s claim. Adeyemi & Ors vs. Opeyeri (1976) 1 FWLR 149, NSCC, the Supreme Court stated the position clearly as follows:
“It is a fundamental principle of Law that it is the claim of the Plaintiff which determines the jurisdiction”
Also Madukolu vs. Nkemdili & Ors (2001) 46 WRN 1, (1962) 1 ALL NLR 587 at 595.
In the case at hand, the Court being referred to in this case at the Lower Court is the Federal High Court, Calabar Division. S.251(1)(p)(q)(r) of the 1999 Constitution of the Federal Republic of Nigeria as amended provides for the jurisdiction of the Federal High Court in civil causes and matters thus:
“(1) 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 Shell have and exercise jurisdiction to the exclusion of any other Court in civil causes and matter.
(p) The administration or the management and control of the Federal Government or any of its agencies.
(q) Subject to the provisions of the Constitution, the operation and interpretation of this constitution in so for as it affects the Federal Government or any of its agencies.
(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive action or decision by the Federal Government or any of its agencies”
The claim of the Respondents reads as follows:
(a) ” An Order enforcing or securing the enforcement and protection of the Applicant’s Fundamental Rights as enshrined in Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
(b) An Order restraining the Respondents and their agents from interfering and or further/attempting to seize, take possession on measure the immovable property of the Applicants situate at NITEL SENIOR STAFF QUARTERS, MIKOT UDUAK OFF MCC ROAD Calabar pending …”
The Respondents Counsel contended that the claim of the Respondents is to their Fundamental Right to the immovable property ie the houses and appurtenances as provided under Sections 43 & 44 of the Federal Republic of Nigeria 1999. The said Sections 43 & 44 fall under chapter 4 of the Constitution of the Nigerian Constitution 1999 dealing with Fundamental Rights of Nigerians Section 43 of the Nigeria Constitution which provides thus:
“Subject to the provisions of this Constitution every citizen of Nigeria shall have the right to acquire and own its own immovable property anywhere in Nigeria.
Section 44(1) provides:
“No immovable property or any interest in an immovable property shall be taken possession of compulsorily and no right over the interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purpose prescribed by a law that among other things…”
The Respondent’s Counsel has dramatised in so many legal principles authorities on the Fundamental Rights Enforcement Procedure Rules 1979 especially Order 1 Rule 2(1) which provides that:
“Any person who alleges that any of the Fundamental Rights provided for in the Constitution and to which he is entitled to, has been or is being or is likely to be infringed, may apply to the Court in the state where the infringement occurs or is likely to occur for redress”
What is the Fundamental Right of the Respondents in this appeal that they are entitled to, has been or is being or is likely to be infringed that have compelled them to come to this Court for redress especially, after taking a critical look at their claim. The Appellants have not threatened to seize, take possession or interfere with the flats, they purchased because as submitted by Counsel, they are entitled to own property any where in Nigeria in accordance with Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria 1999. What the Respondents bought and acquired from the Liquidator (Olusola Adekanola & Co) are block of flats with boys’ quarters and garage which are really the items advertised for sale. A few examples may suffice.
1) Opute Jonathan (1st Applicant) Block E flat 1.
2) Odey Timothy Ogboruke 4th Applicant (Block F flat 2)
3) Oduak Akpan Peter (3rd Applicant) Block E flat 3.
4) Mrs. Iheben Angela Chioma 5th (applicant), Block F, flat 4.
5) Mr. Balogun Adewale Ayinle 6th Applicant Block FS Flat 3.
The rights of the Applicants start and stop at their various flats bought and occupied by them. The receipt issued to them show this very well. At no time was it shown that the flats bought by the Respondents also include the undeveloped portion of land now in dispute. The respondents can not lay claim to the remaining portion of the land under the guise of Fundamental Right of theirs being infringed by the Appellant. No matter how one looks at this case, both parties are showing interest on the remaining portion of undeveloped portion of land hitter to allocated to the Federal Ministry of Communication.
The Respondents, it must be noted are not contesting this matter for and on behalf of NITEL/MITEL who were the erstwhile owners of the property, courtesy of the Government of Cross River State. And so, it appears that they are fighting another person’s war. The rights of the Respondents have not been infringed as the block of flats they purchased legitimately have not been tampered with by the Appellants. Since the issue at stake is the revocation order by the Governor of Cross River State and since the Respondents are claiming same as being the appurtenance attached to their various flats purchased, there is therefore this element of title which has come into play. That is why I said earlier in this judgment that the Respondents cannot hide under the guise of breach of their Fundamental Rights to contest title over a piece of land. Under Section 251 of the Constitution of the Federal Republic of Nigeria 1999 as amended,the Federal High Court has no jurisdiction to hear and determine land matters. Also the Fundamental Rights Enforcement Procedure Rules 2009 does not extend to land matters. On the basis of this therefore, I find as a fact and hereby hold that the Federal High Court, Calabar lacks the jurisdiction, notwithstanding the joinder of the 3rd Appellant/Respondent (the AIG Zone 6) Calabar I therefore resolve this issue No. 1 in favour of the Appellants.
Also resolved is that the Learned trial Judge erred in Law in adjudicating upon a matter involving ownership of undeveloped land between Applicants and Respondents. I have dwelt so much in this issue, I hereby hold that the Learned trial Judge erred in Law when he failed to appreciate that the real issue in contention was the vacant and undeveloped piece of land around the NITEL Senior Staff Quarters at MCC Road, Ikot Uduak, Calabar and not any infringement of the Respondents Fundamental Rights as the Appellants have not tampered with their right of possession in their flats. If the veil is lifted, this position will manifest itself. And so I resolve this issue in favour of the Appellants and hold that the Learned trial Judge erred in adjudicating on a matter outside S.251 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
ISSUE 2:
Whether the trial Judge was right in holding that the Respondents have locus to enforce their fundamental rights over the undeveloped portion of the land which is not vested in them or their lessors?
Learned Appellants Counsel submitted that the Learned trial Judge erred in Law for holding that the Respondents have a locus where there is lack of locus standi, the suit must be struck out for being incompetent. Owodunni vs. Registered Trustee of C.C. (2000) 6 SC Pt.111, page 60. The Respondents are retired Nitel Staff who purchased 2 No block of the flats with boys quarters (garages) at Nitel Senior Staff Quarters, Ikot Uduak Off MCC Calabar. The offer of leasehold, the acceptance by the Respondents and the documentation evidencing the transaction between the Respondents and NITEL conclusively point to the sale/lease of the flats as could be seen from Exhibits A, B – B7, C-77 & D- D7.
Respondent’s Counsel had in his written address submitted wittingly that the Appellant admitted that the piece of land was given to the Federal Government and her agency in 1973. The Land Use Act came into force in 1978. This therefore means that the land measuring a total of 10.443 hectares was already vested in Federal Government and her agency P & T or NITEL. According to Learned Counsel and in recognizance of the fact that having in 1973 passed on title/ownership to the Federal Government and her agency as the right of the Appellants on the portion of land is completely extinguished. See Section 49(1) & (2) of the Land Use Act which provides:
“Nothing in this Act shall affect any title to land, whether developed or undeveloped held by the Federal Government or any agency of the Federal Government of the commencement of this Act and accordingly any such land shall continue to vest in the Federal Government or agency concerned.”
The above argument and submission of Learned Respondent’s Counsel is only tenable only if the Federal Government or any of its agencies is a Respondent in any suit or matter. In the present case at hand, the Federal Government is not the Respondent. The Respondents are mere individuals in their private capacity who merely purchased flats in buildings at the former Senior Staff Quarters of Nitel along MCC Road, Calabar. They did not inherit, acquire or purchase the whole piece of land (10.443 hectares) of land given to NITEL. Out of this original allocation to Nitel, a total of 2.63 hectares was developed for the said senior staff quarters leaving a 7.804 hectares undeveloped. It is this 7.804 hectares that the Respondents are now laying claim in the name of appurtenances, right of way, easement and privilege attached to their purchases of their individual flats. It may sound funny to ask this question – how can the appurtenances (7.804 hectares) be more than the actual area of land where the flats are situated. Or to put it in another way- how can overtime allowance be more than the main salary?
I think that the Respondents are merely over stretching the legal meaning of appurtenances to lay claim to a piece of property over and above which they negotiated and paid for as far as the sale of the flats in the Senior Staff Quarters of Nitel at MCC Calabar is concerned. They have no locus in the matter and so I resolve this issue against the Respondents.
On issue 3 and 4 can be stated thus:
“Whether the Cross River State Government has power to revoke any land owned by the Federal Government and any of her agencies and also whether the rights of the Respondents to acquire and own property in Nigeria under Section 4 of the Constitution of the Federal Republic of Nigeria 1999 as amended were violated by the Appellants?”
To argue these issues, Appellant’s Learned Counsel Mr. Ikoi E. Ikona, Director Civil Litigation Ministry of Justice Calabar submitted that the Respondents Fundamental Rights to acquire and own property in Nigeria under Section 44 of the 1999 Constitution were isolated by the revocation of existing or deemed rights of Occupancy over the undeveloped portion of land around NITEL Quarters, Ikot Uduak, off MCC Calabar by the 3/8/2007.
He maintained that Section 28 of the Land Use Act Cap L5 Laws of the Federal of Nigeria 2004 vests the Governor with vide power of revocation of exiting or deemed rights of occupancy over the undeveloped portion of land around NITEL quarters, Ikot Uduak MCC, Calabar. Also the same Section 28 of the Land Use Act Cap L5 Laws of the Federal of Nigeria 2004 vests vide powers of revocation of existing rights overland within Cross River State for overriding public interest, public purpose for breach of the provisions of S.10 of the Land Use Act, for failure to comply with these requirement specified in Section 9(3) of the Act. Adela vs. Gwar (2004) 34 NSCQR 543 -568-569.
However, the power of the Governor under Section 28(6) and (7) of the Land Use Act to revoke existing rights over land in the State are limited only where the Rights of Occupancy are effectively rested in the Federal Government or any of its agencies S.49(1) of the Act is not Applicable where the land is not effectively vested in the Federal Government or its agencies, Posts and Telecommunication (P&T) now Nitel before the Land Use Act came into effect on the 29/3/1978.
The exchange of correspondence for the acquisition of the land between the State Government and Posts & Telecommunication Department of the Federal Ministry of Communication started from the 5/7/1973 as clearly shown in paragraph 5 of the Appellant further counter-affidavit filed on the 17/11/2008 at page 159 of the record of appeal, and Exhibit M.O.J ‘A’ attached to the record of appeal. Also is exhibit M.O.J ‘B’. he stated that if for whatsoever reason any land vested in the Federal Government or its agency which can not be revoked by the Governor, it is either the 26.309m2 (2.639 hectares) developed or the 51.300m2 (5.13 hectares) advertised for sale and accepted by the Respondents. It cannot be the whole land around the quarters measuring 104.430m2. The Lower Court therefore acted in error in holding that the entire undeveloped land around NITEL quarters Ikot Uduak, Calabar was already vested in the Federal Government or its agency, Nitel pursuant to S.49(1) of the Land use Act and can not be revoked by the Governor. The Court also erred in law by nullifying the revocation of all existing rights over the entire land by the State Governor on the 3/8/2007. The trial Court should have restricted itself to the 51.300m2.
On the other hand, Respondents Counsel contend that since the Cross River State Government had passed title to the Federal Government and her agency in 1973, the right of the Appellant on the property is completely extinguished the passage of title is complete. See Section 49(1) & (2) of the Land use Act. However, the provisions of S.49(1 & 2) of the Act can only apply where the right of occupancy is effectively vested in the Federal Government or any of its agencies in this case at hand, if there is any land vested in the Federal Government which cannot be revoked by the Governor of the State, it is either the 26.309m2 (2.639 hectares) already developed or the 51.300m2 (51.13 hectares) advertised for sale and accepted by the Respondents. It ought to be noted that the area in contention is the undeveloped part of the land (51.300 hectres) advertised for sale and not the whole land around the Senior Staff Quarters of Nitel.
There appears to be a misconception of issues which the Appellant’s Counsel has tried to clear. It is to the effect that the revocation order by the State Governor does not affect the whole area where the blocks of flat are situated and which the Respondents have been enjoying their flats together with all the appurtenances, right of way, easement and principles related there to (26.309m2 or 2.639 hectares) or 51.300m2 or 5.13 hectares advertised for sale and accepted by the Respondents. It only affects the undeveloped and abandoned portion of the land (7.804 hectares or 78.04m2) for the past thirty three years.
According to the Appellant’s Counsel the Posts and Telecommunication (P&T) or Nitel never perfected their title to vest the land especially the undeveloped portion on the Federal Government. In view of the above, I am of the firm view now that the Lower Court erred in Law and misdirected itself when it held thus: “The acts as well as the purported notices or revocation of right of occupancy published in the Nigeria Chronicle of Wednesday August 8, 2007 and the Punch News paper of Monday 6th August 2007 by the 2nd Respondent pertaining to all that undeveloped piece or parcel of land lying behind Nitel Staff Quarters at Ikot Uduak in Calabar, Cross River State Nigeria are illegal, null and void and of no effect and I so hold”
I say so because the above holding of the Learned trial Judge went beyond the size of the property in contention. Nitel specially offered and advertised for sale the flats on 51.300m2 but the order has been made to include the total area of the land comprising 104.430m2. That is to say that the Respondents were given more them what they bargained for. The trial Court could have limited itself to the 51.300m2 (5.13 hectares). This is an error in Law and a misdirection on the part of the trial Court. See Falomo vs. Bangbe (1998) 6 SC 141.
The Appellants have not disturbed the peaceful possession and ownership of the Respondents over their flats located within 26.309m2 or 2.639 hectares. Their right under Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria 1999 as amended has not been violated. Their right and ownership of the flats are in tact. They have been enjoying their flats together with the appurtenances, right of way, easement and principles related thereto even with the institution of this case. They are therefore enjoying their right to live and own property anywhere in Nigeria, Calabar inclusive as part of the entity called Nigeria. They have a right therefore to that extent.
Appellants Counsel in the course of argument in his brief stated that this suit can not be effectively and finally determined without hearing from the Federal Ministry of Communication or NITEL/MTEL Staff Pension Fund Liquidation or whoever inherited it. The reason according to him is because they are necessary parties. According to Respondent’s Counsel to be joined as a necessary party, the Court must come to the conclusion that the presence of such a party is necessary for the effectual determination of the case. Whether the Federal Ministry of Communication or whosoever is joined or not, does not mean so much as far as this case is concerned.
Infact there is no party that can be considered as necessary in a suit without which the matter can not be settled. Green vs. Green (2001) 45 WRN 90. See also Peenok Investment Ltd. vs. Hotel Presidential Ltd. (2011) ALL FWLR Pt 571 page 1428 at 1458.
So whether or not the NITEL/MTEL Staff Pension Fund Liquidation is joined or not, the matter can still be determined meritoriously without joining them and I so hold.
After reviewing all the six issues canvassed in this appeal, I find all them resolved in favour of the Appellants. The appeal is meritorious and it is hereby allowed. The judgment of the Lower Court in suit No. FHC/CA/CS/3/2008 delivered on the 9th July, 2009 is hereby set aside. No Order as to costs.
CHIMA CENTUS NWEZE, J.C.A.: My learned brother, Paul Obi Elechi, JCA, obliged me with the draft of the leading judgment just delivered now. His Lordship has dealt with the issues in an admirable manner. I, also abide by the consequential orders therein.
ONYEKACHI A. OTISI, J.C.A.: I had the opportunity of reading, in draft, the Judgment just delivered by my learned Brother, Paul Obi Elechi, JCA, in this appeal. The issues raised in this appeal have been comprehensively addressed. I am in complete agreement with his reasoning and conclusion; allowing this appeal. I will only make few comments in support..
The suit at the lower court was instituted to enforce the fundamental rights of the Respondents. But, as rightly found in the lead Judgment, the real bone of contention in this suit is ownership of the undeveloped land around NITEL Quarters, Ikot Uduak, off MCC Calabar.
It is well established that an applicant’s claim to enforce his fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules 2009 must be founded on constitutionally guaranteed rights. The applicant must seek to enforce or protect a right guaranteed by Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
It is the duty of the court to examine the reliefs sought by the applicant, the grounds for such reliefs and the facts relied upon. If they disclose that breach of fundamental right is the main plank, redress may be sought through the Fundamental Rights (Enforcement Procedure) Rules 2009. But where the alleged breach of fundamental right is incidental or ancillary to the main complaint, it is incompetent to proceed under the rules, Sea Trucks Nig. Ltd v Anigboro (2001) 1 MJSC 111; Tukur v. The Government of Taraba State (1997) 6 NWLR (Pt.510) 549; Egbuonu v. Borno Radio Television Corporation (1997) 12 NWLR 29.
The Fundamental Rights Enforcement Procedure cannot be employed to contest title to a piece or parcel of land. Furthermore, the Federal High Court does not have jurisdiction to hear and determine matters pertaining to title to land, Section 251 of the Constitution of the Federal Republic of Nigeria, 1999, as amended. The lower court therefore lacked the necessary vires to entertain the suit submitted before it for adjudication.
For this reasons, and, for the fuller reasons given in the lead Judgment, I also allow this appeal. I abide by the orders made in the lead Judgment.
Appearances
I.E. Ikona Esq. with Clara Itam and N.U. UkoFor Appellant
AND
Ikpeama Onyeanwu Esq.For Respondent
