UGWU v. CBN & ANOR
(2021)LCN/15755(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Friday, February 12, 2021
CA/E/334/2016
Before Our Lordships:
Ahmad Olarewaju Belgore Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Between
CHIEF JERRY UGWU (For Himself And On Behalf Of Ogui Nike Community Enugu State) APPELANT(S)
And
1. CENTRAL BANK OF NIGERIA 2. FEDERAL MINISTRY OF LANDS HOUSING & URBAN DEVELOPMENT RESPONDENT(S)
RATIO
WHETHER OR NOT IT IS A PLAINTIFF’S CLAIM THAT DETERMINES THE JURISDICTION OF A COURT
The Law is trite and cases abound, that to determine whether a Court has jurisdiction to hear and determine a case/suit before it, and/or whether the Claim of the Plaintiff is statute barred, resort is had only to the Claims/reliefs sought by the Plaintiff, not to the statement of defence, or the insinuations, contraption/imagination of the defendant, as to what the case before the Court is. Though jurisdiction is donated by Statute to any Court in determining whether a Court has powers/jurisdiction to hear a given case, it is usually the subject matter of the litigation that the Court has to consider, and that is done by taking close look at the claims/reliefs sought by the Plaintiff. Sometimes, however, the parties to the action are also considered. In the case of Maifata Vs Upper Sharia Court, Kofar Kudu Ors (2017) LPELR-45128 CA, it was held:
“It is settled law that what primarily confers jurisdiction on a Court of law is the statue that creates the Court and other enabling laws to that effect. The subject matter of the cause of action may as well be of relevance in determining the jurisdiction of a Court. See Per Mohammed JSC in the case of A.G. Rivers State Vs A.G. Akwa Ibom State (2011) LPELR-633 (SC)…”
In the case of Incorporated Trustees of Association of House Owners & Residents, Aba Ngwa & Ors Vs Hon. Chief Judge of Abia State (2019) LPELR-47280 CA, it was held:
“In considering whether a Court has jurisdiction to entertain a suit, it has to premise its decision on the Claim brought by the Plaintiff, by considering his writ of summons and pleadings (the originating summons and grounds/affidavit of the Plaintiff) not the anticipated defence by the defendant. See the case of Inakoju Vs Adeleke (2007) LPELR-1510 SC; Ladejobi vs Shodipo (1989) 1 NWLR (Pt. 99); See also Customary Court of Appeal, Edo State Vs Aguele & Ors (2017) LPELR-44632 SC; Emejuru & Anor Vs Abraham & Ors (2018) LPELR-46330 SC, where it was held: “…When issue of jurisdiction is raised in proceedings, the Court must carefully refer to the writ of summons and statement of Claim to ascertain whether it has jurisdiction to entertain, hear and determine the claim filed before it….” PER MBABA, J.C.A.
THE REQUIREMENT OF THE LAW IN DETERMINING WHETHER THE CLAIM OF A PLAINTIFF IS CAUGHT BY LIMITATION ACTION
And, when it comes to determining whether the claim of a Plaintiff is caught by the Limitation Act, the law also requires a close study of the case of the Plaintiff, as per the writ or statement of claim or originating summons, to locate when the cause of action accrued, and when the Plaintiff filed the action, to originate the Suit. See the cases of Nigerian Maritime Administration and Safety Agency Vs Ihenacho & Ors (2016) LPELR – 40565 CA; Dangaji Vs Abdulkadir & Anor (2020) LPELR – 52183 (CA); Oteri Holdings Ltd Vs Oluwa & Ors (2020) LPELR – 52395 (SC).
In the case of Okanu Vs Anoruigwe & Anor (2019) LPELR – 48835 CA, where the provision of Sections 3 and 4 of the Imo State Land Limitation Edict 1994 was sought to bar the Plaintiff from maintaining action to ward off trespassers from Respondent’s land, this Court held:
“I think it amounted to sheer wishful thinking, for Appellant to imagine that he was in possession of the Respondents’ land (in dispute) for over 10 years, before the Respondent filed the Suit, thus trying to invoke the provisions of Sections 3 and 4 of the Imo State Land Limitation Edict 1994, which says:
(3) “No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued or, if it first accrued to some person through whom he claims, to that person.
(4)(1): where the person bringing an action to recover land or some person through whom he claims, has been in possession thereof and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of dispossession or discontinuance.” PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Ruling of Enugu State High Court in Suit No. E/36/2014, delivered on 17/2/2016 by Hon. Justice R.O Odugu, wherein the learned trial Judge dismissed the suit of the plaintiff (now Appellant), on the objection raised by 1st Defendant (now 1st Respondent) against the suit, for want of jurisdiction, that the suit was statute barred.
At the lower Court, the Plaintiff had sought the following reliefs:
(1) A declaration that the Plaintiff, for himself and on behalf of Ogui Nike Community, are entitled to the large expanse of land, measuring 22.92 acres, part of which 2.286 acres was given to Central Bank of Nigeria to site its branch office at Okpara Avenue, Enugu State, Nigeria.
(2) A declaration that the plaintiff and on behalf of Ogui Nike Community, are entitled to the customary right of occupancy of an area of land measuring 2.286 acres of land, where the Central Bank of Nigeria as a sub-leasee to Federal Government of Nigeria, sited their branch at Okpara Avenue in Enugu State.
(3) A declaration that Federal Government of Nigeria, having not sought and obtained the consent of the plaintiffs community and also failed to pay their rent, should not have sub-letted (sic) the leased property to the Central Bank of Nigeria.
(4) A declaration that the Central Bank of Nigeria being in occupation of the plaintiff’s property by authorization of the Federal Government, which authorization is illegitimate, is entitled to pay rent to the plaintiff covering the period of 50 years, that the Central Bank of Nigeria has been in occupation of the property.
(5) An order that the Central Bank of Nigeria pay the sum of N120,000,000 (One Hundred & Twenty Million Naira) only being the assessed current value of the acres measuring approximately 2.286 acres which the Central Bank is occupying.
(6) An order directing the Central Bank of Nigeria to pay to the plaintiff interest of 10% current Central Bank of Nigeria rate on the sum represented in paragraph 5 above pursuant to Public Lands acquisition Miscellaneous Decree/Act, 1976) No. 33.
(7) An order that the defendant (sic) pay the plaintiff the sum of N10, 000,000.00 (Ten Million Naira) only, cost of litigation (As per the statement of claim on pages 4-7 of the Records of Appeal).
Upon being served with the processes, the 1st Respondent filed a defence and also raised a motion on 20/5/2014, seeking:
(1) “An order… disposing of the legal points raised by the 1st Defendant in its statement of Defence dated and filed on 14th day of April, 2014.
(2) An order striking out the reliefs in the statement of claim filed by the Plaintiff, for non-disclosure of reasonable action and for being vexatious, frivolous and abuse of Court process;
(3) An order declining jurisdiction to deal with this matter, the cause of action being statute barred and being an action against agencies of Federal Government of Nigeria;
(4) An order dismissing the entire action or in the alternative, striking it out, for lack of locus standi of the plaintiff;
(5) And for such further orders or other orders as this Honourable Court may deem fit to make in the circumstances.” See pages 67-68 of the Records.
The trial Court entertained the objection to the trial on 18/1/2016, upon both parties filing written addresses, and adopting same. On 17/2/2016, the trial Court delivered its ruling and dismissed the Suit, on the grounds that it was statute barred and that the proper Court to adjudicate on it was the Federal High Court, because the 1st and 2nd Defendants were/are agencies of Federal Government of Nigeria, consequently the trial State High Court had no jurisdiction to entertain the suit.
The trial Court said on pages 219, 220, 224 and 225 of the Records of Appeal:
“This is my 14th year on the High Court Bench and I must confess that I have never come across any Notice of Preliminary Objection or Motion on Notice, challenging the jurisdiction of the Court like the present case. There are multiple grounds upon which the jurisdiction of this Court is being challenged. They are six in number and each one of them is substantial… I shall not review the details of arguments of Counsel; neither shall I examine all the issues raised on why this Court has no jurisdiction to entertain the suit. The better option is to begin with grounds that are weighty in law, the resolution of which may determine the fate of the suit in one way or the other. The first two issues which I have distilled among others for determination in this ruling are as follows:
(1) Whether the plaintiff’s suit on account of the effluxion of time has become statute barred.
(2) Whether this Court has the requisite jurisdiction to determine a case involving the Federal government of Nigeria and its known agencies…
I do not agree with the submission of learned Counsel for the plaintiff that a plaintiff has unrestricted right of access to Court to claim compensation payable to him and that the law on limitation is not applicable in such cases. I have come to the conclusion on this issue that the plaintiff’s claim which was filed after a period of about 52 years of the accrual of the right of, is statute barred, as there is no claim of renewal of the right of action by any of the defendants, which would have affected the period or date of the accrual of the right of action.
On the second issue of the jurisdiction of this Court to entertain suits involving the agencies of the Federal Government of Nigeria, authorities are legion to the effect that the proper Court to adjudicate on the claims of the plaintiff is the Federal High Court … both the 1st and 2nd defendants whom the plaintiff dragged to this Court are agents of the Federal Government. Consequently, this Court has no jurisdiction to entertain this suit as it presently constituted… Accordingly, this suit is hereby dismissed. The 1st Defendant is entitled to costs against the plaintiff which is assessed to be N50, 000.00 (Fifty Thousand Naira) only.
The second Defendants also entitled to costs which o assessed to be N25, 000.00 (Twenty Five Thousand Naira) only.”
That is the decision Appellant appealed against, as per the Notice and Grounds of Appeal, on pages 226 to 229 of the Records of Appeal, filed on 29/2/2016. Appellant filed his brief of arguments on 29/9/2016, which was deemed duly filed on 1/7/2019. He distilled 3 issues for the determination of the Appeal, as follows:
(1) Whether the plaintiff’s suit is statute barred;
(2) Whether it is the parties to a suit that confers jurisdiction on the Federal High Court or State High Court to entertain a suit or the subject matter of the said suit that confers jurisdiction.
(3) Whether the order of N50, 000.00 costs awarded to the 1st defendant/respondent and N25,000.00 awarded to the 2nd defendant/respondent was an exercise of the Courts discretion done judiciously and judicially.
The 1st Respondent filed its brief on 5/10/2020, which was deemed duly filed on 12/10/2020, and adopted the issues donated by the Appellant for the determination of the Appeal. The 2nd Respondent filed no brief, but the Appellant filed a Reply Brief on 26/10/2020.
Arguing the Appeal on 14/1/2021, Appellant’s Counsel, U.T. Odili Esq., on Issue 1, referred us to the Appellant’s claim (pleadings) at the Lower Court, to the effect that the land was on lease to the government with yearly rental of One Hundred and Sixty Pounds, Eight Shillings and Ten Pence at the time the Eastern Government (now Federal Government) acquired it; that it was the Federal Government that sub-let the property to the Central Bank of Nigeria (1st Respondent), pursuant to a building lease, dated 17/11/1964, that because the Plaintiff never alienated or sold the land to the Government, the Plaintiff’s community still had Customary right over the land and remained customary owners of same, that such right was not subject to the statute of limitation, as the reversionary right of the landlord remains in a tenancy/lease agreement. He relied on the cases of Omokanye & Anor Vs Adini & Anor (2012) LPELR-7934 CA; Silli Vs Mosoka (1997) 1 NWLR (Pt. 479) 103; Abioye Vs Yakubu (1991) 5 NWLR (Pt.190) 130; Omah Vs Onyiah (1974) 1 SC 1.
Counsel also relied on Sections 18 and 19 of the Actions Law, Cap 4 Revised Laws of Enugu State, 2004 to say that the suit was not statute barred.
On Issue 2, Counsel said it is the subject matter of a suit that confers jurisdiction, not the parties to a suit; that the trial Court was wrong to say that it (trial Court) had no jurisdiction to entertain the suit simply because 1st and 2nd Respondents were Federal Government Agencies; he said that Section 251 of the 1999 Constitution, as amended, did not vest jurisdiction on the Federal High Court in land matters, rather Section 39(1) (a) (b) of the Land Use Act, confers exclusive jurisdiction on the State High Court in respect of land matters in the state.
He said that Appellant’s claim bothered on land and so the Federal High Court had no jurisdiction to hear such a case. He relied on Adisa Vs Oyinwola (2000) 10 NWLR (Pt. 674) 116; Azagba Vs Nigeria College Of Aviation Technology, Zaria (2013) LPELR-20740 CA; Omotesho Vs Abdullahi (2008) ALL FWLR (PT.402) 114; NNPC Vs Zaria & Anor (2014) LPELR – 22362 (CA).
Counsel said that the fact that a party is an agency of the Federal Government does not, necessary, make the matter available to the Federal High Court to hear, where the same is outside the purview of Section 251 of the 1999 Constitution, or the subject matter is land. He relied on the case of Onuorah Vs Kaduna Refining And Petrochemical Co. Ltd (2005) 6 NWLR (Pt.921) 393. Adeogun Vs Fashogbon (2008) 17 NWLR (Pt.1125) 149; Adetayo Vs Ademola (2010) 10 NWLR (Pt.1215) 169.
On Issue 3, whether the cost awarded was properly exercised by the trial Court, Counsel answered in the negative. He said the Court did not exercise its discretion, judiciously and judicially; that costs are not imposed as punishment on a party, but as an indemnity. He relied on Kupoluyi Vs Philips (2001) 13 NWLR (Pt.731) 736; NIPOST Vs Musa (2013) LPELR – 20780 CA. Counsel also relied on Order 49 Rule 11 of the High Court of Enugu State, to say that the trial Court did not even hear the Appellant on issue of costs, and urged us to interfere with it. He relied on E.F.P Co. Ltd Vs NDIC (2007) ALL FWLR (PT. 367) 793. University Of Lagos Vs Olaniyan (1985) 1 NWLR (Pt. 1) 143; Nzeribe Vs Dave Eng (1994) 8 NWLR (Pt. 361) 124.
He urged us to resolve the issues for Appellant and to allow the Appeal.
Responding, Chief Emeke Ngige, SAN, (who argued the Brief settled by Osinachi Nwoye, Esq.) for 1st Respondent, answered the Issue 1 in the affirmative; he said that the suit was statute barred, the plaintiff having filed the suit about 52 years, after the accrual of the cause of action. He agreed that the Court has to look at the claim of the plaintiff, to decide whether the suit is statute barred and relied on Mulima Vs Usman (2014) 16 NWLR (Pt. 1432) 160; Ajayi Vs Adebiyi (2012) 11 NWLR (Pt. 1310) 137.
The Learned Senior Counsel said that the land in issue was the subject matter of the Public Land Acquisition Law of the then Eastern Nigeria, now Public Lands Acquisition Act of the Federal Government, which compulsorily acquired the land on or about 16th February 1956; he said that the Eastern Government followed the procedure for the acquisition exercise by giving requisite notices to acquire the property to the persons interested, that is, the Ogui Community, publishing the notice and gazetting it and eventually taking possession of the land on 16/3/1956; he said that the said property vested in the Federal Government, as represented by 2nd Respondent. (The above arguments however appeared pre-emptory as the case of the Plaintiff was never heard to elicit such evidence).
He relied on the case of F.G.N Vs Akinde (2013) 7 NWLR (Pt.1353) 349. Counsel argued that upon acquisition of the land, the same no longer vested in the Ogui Nike Community as presented by Appellant, but on the Federal Government; that on 17/12/1964, the Minister of Town Planning, by Power vested on him by the State Land Act, demised the premises to the Central Bank of Nigeria. He relied on Section 49 of the Land Use Act, to say that the land now vests in the Federal Government and/or the agency to Federal Government; that it was not a customary tenancy anymore. He argued that the cases cited by Appellant did not apply and also Section 18 of the Actions Law, cited by Appellant, did not apply to the Suit or Appeal; rather, that Section 2(2) of the Actions Law, Cap 4 of the Revised Laws of Enugu State, 2004; applied, which says:
“No action shall be brought by any other person to recover land after the expiration of twenty years from the date on which the right of action accrued to him or if it first accrued to some other person through whom he claims, to that person.”
He argued that Appellant had waited for about 52 years to take the action, that the suit was statute barred as held by the trial Court. He relied on Lagos State Government & Ors Vs Martins (2015) LPELR-24580 CA; Moronfoye & Anor Vs Abdulateef & Ors (2018) LPELR-44237 (CA).
On Issue 2, Counsel said the law is trite, that jurisdiction of a Court is determined by the plaintiff’s claim and/or relief; that a look at the relief sought by Appellant, showed it was about acquisition of land in 1956 by the Government of Eastern Region, now Federal Government and further demised to the Central Bank of Nigeria, a Federal Agency. He referred to the Section 251(1) (r) of the 1999 Constitution, as amended, to say that Appellant’s claim was challenging the administrative action taken by the Federal Government to acquire the land and bequeath same to the 1st Respondent (Central Bank), agency of Federal Government. Thus, the State High Court had no jurisdiction to hear the case, being one for the Federal High Court to entertain. Minister of Works and Housing Vs Shittu (2007) 16 NWLR (Pt.1060) 351; Minister Federal Ministry of Housing and Urban Development & Anor Vs Bello (2009) 12 NWLR (PT. 1155) 345; Council of Legal Education & Ors Vs Balogun & Ors (2011) LPELR-4005 (CA); NEPA VS EDEGBERO (2002) 18 NWLR (PT. 798) 99 at 100.
The Senior Counsel asserted that the subject matter of the action was a challenge to the executive or administrative actions or decision of the Federal Agency on the land, and so the appropriate Court to hear the case was the Federal High Court.
On the Issue 3, on the costs awarded by the trial Court, Counsel said award of costs is always entirely at the discretion of the Court making the award, that once it is exercised properly, the appellate Court cannot interfere; he said that in making the award the Court considers:
(a) All the fees paid for filling and prosecution of all the processes in the case.
(b) Allowance for counsel’s fees;
(c) Reasonable out of pocket expenses;
(d) Rules of Court, where applicable.
He relied on Ozigbu Eng. Co Ltd Vs Iwuamandi (2009) 16 NWLR (Pt. 1166) 44 and said that the trial Court had exercised its discretion, properly, in awarding the costs, and relied on the case of Theobros Auto-Link Ltd. Vs B.I. E.E Co. Ltd (2013) 2 NWLR (Pt.1338) 337 to say that there is no need to hear the parties before the Court can make award for costs. He also relied on the case of Celtel Nig Ltd Vs Econet Wireless Ltd (2013) 3 NWLR (Pt. 1233) 156, to say that, one who quarrels about the award of cost must show that the discretion to award same was improperly exercised, to justify intervention of the appellant Court.
Counsel urged us to resolve the Issues against the Appellant and to dismiss the Appeal.
The 2nd Respondent filed no brief, as earlier stated.
In his Reply brief, Appellant emphasized that jurisdiction is donated by statute that created the Court, and determined by the claim/relief of the Plaintiff, not by the claims of the Defendant, or what the defendant wants the Court to hear/determine.
RESOLUTION OF THE ISSUES
I think only two Issues are thrown up for the determination of this Appeal, namely:
1) Whether the trial Court was right to dismiss the claim/case of the Appellant at the lower Court on the ground that the suit was Statue barred; and
2) Whether the Lower Court (State High Court) had jurisdiction to entertain the Suit despite the fact that 1st and 2nd Respondents were Agencies of Federal Government.
I shall however, take the two Issues together.
The Law is trite and cases abound, that to determine whether a Court has jurisdiction to hear and determine a case/suit before it, and/or whether the Claim of the Plaintiff is statute barred, resort is had only to the Claims/reliefs sought by the Plaintiff, not to the statement of defence, or the insinuations, contraption/imagination of the defendant, as to what the case before the Court is. Though jurisdiction is donated by Statute to any Court in determining whether a Court has powers/jurisdiction to hear a given case, it is usually the subject matter of the litigation that the Court has to consider, and that is done by taking close look at the claims/reliefs sought by the Plaintiff. Sometimes, however, the parties to the action are also considered. In the case of Maifata Vs Upper Sharia Court, Kofar Kudu Ors (2017) LPELR-45128 CA, it was held:
“It is settled law that what primarily confers jurisdiction on a Court of law is the statue that creates the Court and other enabling laws to that effect. The subject matter of the cause of action may as well be of relevance in determining the jurisdiction of a Court. See Per Mohammed JSC in the case of A.G. Rivers State Vs A.G. Akwa Ibom State (2011) LPELR-633 (SC)…”
In the case of Incorporated Trustees of Association of House Owners & Residents, Aba Ngwa & Ors Vs Hon. Chief Judge of Abia State (2019) LPELR-47280 CA, it was held:
“In considering whether a Court has jurisdiction to entertain a suit, it has to premise its decision on the Claim brought by the Plaintiff, by considering his writ of summons and pleadings (the originating summons and grounds/affidavit of the Plaintiff) not the anticipated defence by the defendant. See the case of Inakoju Vs Adeleke (2007) LPELR-1510 SC; Ladejobi vs Shodipo (1989) 1 NWLR (Pt. 99); See also Customary Court of Appeal, Edo State Vs Aguele & Ors (2017) LPELR-44632 SC; Emejuru & Anor Vs Abraham & Ors (2018) LPELR-46330 SC, where it was held: “…When issue of jurisdiction is raised in proceedings, the Court must carefully refer to the writ of summons and statement of Claim to ascertain whether it has jurisdiction to entertain, hear and determine the claim filed before it….”
Of course, in some instances, as earlier said, it is necessary to consider both the subject matter of the case and the parties to the suit, where the issue touches on the jurisdiction of the Federal High Court to hear the Case. See the case of Agbaso Vs Iwunze & Ors (2014) LPELR-24108 (CA); Adetayo Vs Ademola (2010) NWLR (Pt. 1215) 169; A.G Anambra State & Ors Vs A.G. Fed. & Ors (1993) 6 NWLR (Pt.302) 192.
And, when it comes to determining whether the claim of a Plaintiff is caught by the Limitation Act, the law also requires a close study of the case of the Plaintiff, as per the writ or statement of claim or originating summons, to locate when the cause of action accrued, and when the Plaintiff filed the action, to originate the Suit. See the cases of Nigerian Maritime Administration and Safety Agency Vs Ihenacho & Ors (2016) LPELR – 40565 CA; Dangaji Vs Abdulkadir & Anor (2020) LPELR – 52183 (CA); Oteri Holdings Ltd Vs Oluwa & Ors (2020) LPELR – 52395 (SC).
In the case of Okanu Vs Anoruigwe & Anor (2019) LPELR – 48835 CA, where the provision of Sections 3 and 4 of the Imo State Land Limitation Edict 1994 was sought to bar the Plaintiff from maintaining action to ward off trespassers from Respondent’s land, this Court held:
“I think it amounted to sheer wishful thinking, for Appellant to imagine that he was in possession of the Respondents’ land (in dispute) for over 10 years, before the Respondent filed the Suit, thus trying to invoke the provisions of Sections 3 and 4 of the Imo State Land Limitation Edict 1994, which says:
(3) “No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued or, if it first accrued to some person through whom he claims, to that person.
(4)(1): where the person bringing an action to recover land or some person through whom he claims, has been in possession thereof and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of dispossession or discontinuance.”
Of course, the above provisions, in my opinion, was not meant to serve as a rogue-legislation to reward trespassers and land predators/speculators and grabbers, who enter into peoples land forcefully, in their absence and colonize it, daring the owner and defying every warning/entreaty, only to plead the Land Limitation Law, at the expiration of 10 years, upon taking Court action, after 10 years, from the date of the trespass… Land Limitation Law of Imo State was not therefore designed to profit land grabbers and trespassers. The law is trite, that a trespasser remains a trespasser, no matter how long and trespass can be continuing Act. See the case of Happy Land Happy Word Ltd Vs UBN Plc & Ors (2017) LPELR – 43564 CA… In the case of Oyebamiji Vs Lawanson (2008) 15 NWLR (Pt.1109) 122 at 138 his Lordship Oguntade JSC said: “More importantly, the Suit of the Respondents was in trespass. For everyday the Appellant remained on the land in dispute… they committed fresh acts of trespass which was actionable. It would therefore not avail them to content, as they did, that the cause of action arose on a particular date, since they remained on the land even at the time the Suit was being heard.”
The essence of the above long citation is to emphasize that a simple plea of statute of limitation challenging a claim under the Section 4 of the Land Actions Law of Enugu State, alleging that the Claimant slept over his right for 20 years and cannot maintain the action, does not and cannot apply in a situation of trespass or continuous trespass.
It cannot also apply, in my opinion, in a situation where the person occupying the land is a tenant, on lease hold on the land, as the reversionary right of the landlord or land owner remains, as long as the tenancy or lease, or sublease subsists. See Archibong & Ors Vs Ita & Ors (2004) LPELR – 536 SC, where it was held:
“The essence of a reversionary interest is that the owner has parted with an estate less than absolute ownership and that upon the termination of that estate it reverts to the owner… There can, therefore, be no question of co-ownership by a tenant with a landlord as a result of along tenancy in possession.
The radical title always remains in the landlord. The landlord may alienate part of his land to a tenant absolutely and when that happens to the former tenant. He ceases to be tenant thereto …”
Appellant’s claim, at the Court below, was that the land was on lease to the Eastern Nigeria Government (now Federal Government) and that the Federal Government sub-let the land in controversy to the 1st Respondent (Central Bank of Nigeria). Appellant was not even denying the Respondents’ the right of possession and use of the land, but was asking for payment of the accrued rental, saying that the community remained customary owners of the land, and entitled to be paid the accrued rent, said to have been fixed, at one hundred and sixty pounds, eight shillings and six pence per year. That was the case before the lower Court.
Unfortunately, the 1st Respondent did not allow the case to be heard, and the trial Court, by entertaining the motion, and dismissing the Suit, appeared to have jumped the gun, delving into the merits of the case, to consider the whole issue of acquisition of the land by the government, compulsorily, without hearing the case, first. That, in my view, was a serious breach of the rights of fair hearing of the Appellant by the trial Court, delving into the merits of the case it did not allow Appellant to lead evidence on! A Court cannot dabble into the merit of a case at the point of taking interlocutory application. That is trite Law. See Ojora Vs Agip Nigeria Plc (2004) LPELR-7421 CA; Ojukwu Vs Govt of Lagos State (1986) 3 NWLR (Pt 26) 39; Sule & Ors Vs Sule & Ors (2019) LPELR 47178 (CA); Mbadinuju Vs Ezuka (1994) 8 NWLR (Pt 364) 535.
It should also be stated that the trial Court was in grave error to hold that it had no jurisdiction to hear Appellant’s case, simply because 1st and 2nd Respondents were agencies of Federal Government. It appears the trial Court forgot that Section 251 of the 1999 Constitution, as amended, which provides the general powers of the Federal High Court, does not include any jurisdiction or power of the Federal High Court over land matters. Even the Section 251(1) (r), which the Respondents relied on, cannot be available to them at this stage, the case was yet to be heard, for them to prove that the case touched on executive action or administration of land by agency of the Federal Government. Appellant’s Claim, on the face of it, did not reck up issue of executive action or administration of the land. Rather it sought payment of accrued lease/rent by the Respondents, on the land the Appellant said his Community leased to Government 56 years back. I think the case needed to be heard for the parties to prove or establish their positions, before the Court could rule on same.
We had occasion to consider a similar issue of lack of power of Federal High Court to entertain cause on land matters, except in respect of Section 251(1) (r) of the 1999 Constitution, as amended, only. See the case of Major General S.A. Awosanya Rtd Vs Fed. Ministry of Environment & Urban Development & Ors (2021) LPELR – 52707 CA, wherein we said:
It is also quite glaring, that the substance of the two cases questioned or sought to justify the power of the 1st to 3rd Respondents to deal with the property, No. 9 Mekunwen Road, Ikoyi, Lagos, by selling same to 4th Respondent, and how the sale was made. While Appellant questioned the sale, the 4th Respondent justified it and sought an order for Appellant to vacate the property, and because the 1st to 3rd Respondents are Federal Government Agencies, which controlled and administered the property, by virtue of Section 49 of the Land Use Act 1978. The Section concedes to the Federal Government or its agency to hold title to land. The provision says:
“49 (1): 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 at the commencement of this Act and accordingly, any such land and shall continue to vest in the Federal Government or the agency concerned.
49 (2) In this section, ‘agency’ includes any statutory corporation or any other statutory body (whether corporate or unincorporate) or any company wholly owned by the Federal Government.”
Of course, Section 251 (1)(r) of the 1999 Constitution of Nigeria, as amended, says:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agency and…”
There is no doubt that the action or decision of the 1st to 3rd Respondents (Federal Agencies) to sell the property owned by the Government, to the 4th Respondent is at the root of this case of the Appellant and the 4th Respondent. The trial Court (Federal High Court) is therefore the appropriate Court with requisite jurisdiction to determine the dispute(s), in my opinion. See the views of my lord Okoro JCA (as he then was) in the case of Minister, Federal Housing Authority & Urban Development & Anor Vs. Bello (2009) 12 NWLR (pt. 1155) 345 at 364 – 365.
Certainly, this was not a land case, or one for declaration of title, since the parties had agreed that title was vested in the Federal Government, and which transferred the title to the 4th Respondent. Appellant only disputed the sale, saying it ought to have been to him. The trial Court was therefore properly located to pronounce on the sale, whether it was valid or not, and whether the Appellant was entitled to it or not.”
In the same way, this case, at hand, though a land case, appeared not to relate to declaration of title, or to executive or administrative action of the land. It is for the State High Court to adjudicate on.
I must also add that the trial Court erred, grossly, by dismissing the Suit, when the same was not even heard! A Court cannot dismiss a case it had not heard, but can only strike it out, if found to be incompetent. See Ejiogu Vs Nwauzoagba & Ors (2018) LPELR – 44577 (CA); Amah & Ors Vs Nwankwo (2007) LPELR – 8225 CA.
I allow the Appeal and set aside the decision of the Lower Court, and Order for trial of the case, on the merits, but before another Judge.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading, before now, the Judgment just delivered by my Learned Brother, ITA G. MBABA, JCA.
I agree with his reasoning and conclusion that this Appeal is meritorious and should be allowed.
I allow the Appeal and remit the case back to the Hon. Chief Judge of the Enugu State High Court of Justice for assignment to a Judge of the Court other than Hon. Justice R. O. Odugu for trial on the merit.
I award not cost.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ITA GEORGE MBABA, JCA and I totally endorse the reasoning and conclusion therein.
Jurisdiction of a Court is essentially determined by statute and as regards the particular case, by the claims submitted for adjudication. While a Court cannot expand its jurisdiction beyond the statutory limits even if parties are in concurrence, it should not be in haste to decline jurisdiction.
For the more detailed reasoning in the lead judgment I equally hold that jurisdiction was wrongfully declined in this instance. I equally hold that the appeal is meritorious and it is accordingly allowed.
I adopt the consequential orders in the lead judgment as mine.
Appearances:
U.T. ODILI, ESQ. For Appellant(s)
CHIEF EMEKE NGIGE, SAN, with him, OSINACHI NWOYE, ESQ. For Respondent(s)