Minister, Federal Ministry of Housing & Urban Development Anor V. Alhaji Mustapha Bello (2009)
LawGlobal-Hub Lead Judgment Report
JOHN INYANG OKORO, J.C.A.
This is an appeal against the judgment of the Federal High Court, Kaduna in suit No FHC/KD/CS/67/2004 delivered on 17th June, 2005. At the Court below, the Respondent as Plaintiff, by an Originating Summons submitted two question for determination. These questions are:-
(1) Whether on interpretation of the survey Plan, KAD/81/11 (item Z 269), covering Gongola Road, Kaduna South, Kaduna, the plot of land occupied by tenants of the 1st defendant measuring 1.21 (1.205) acre or 0.488 hectare boundaries of which are marked by property beacons Nos Z. 9670, 2.9671, Z. 9677 and Z. 9678, having among other features, a wall fence, two gates, a semi-detached duplex, boys’ quarters and two garages is plot 25 or plot 39 of the same Gongola Road, Kaduna South, Kaduna.
(2) Whether a plot 39 Gongola Road Kaduna South, Kaduna (a ‘plot’ which has no size, beacon numbers and boundary features also referred to as house No 39 of the same road) exists or it is a non-existing plot imagined by servants or agents of the 1st defendant to cover their unauthorised possession of plot 25 Gongola Road, Kaduna South, Kaduna.
The plaintiff, now Respondent, sought for the following reliefs:-
(1) An order that the defendants, their servants, agents, privies, licensees or tenants be ejected from plot 25 A & B Gongola Road, Kaduna South, Kaduna State forthwith,
(2) Damages for the illegal occupation of the plaintiffs’ plot 25 Gongola Road South, Kaduna State, at the rate of N500, 000.00 (Five Hundred Thousand Naira) per annum from the year 2000 when the defendants entered and occupied the said property till they vacate from it.
(3) A perpetual injunction restraining the defendants their servant’s agents or tenants from re-entering the said plot 25 Gongola Road, Kaduna South, Kaduna.”
Before filing the Originating Summons at the Federal High Court Kaduna, the Respondent had earlier filed the matter at the State High Court which declined jurisdiction. The Respondent is laying claim to plot No. 25 A & B Gongola Road, Kaduna South Kaduna which he alleges the 1st Appellant has illegally let in some tenants. The 1st Appellant states that the property it has let persons into possession is plot 39 A & B and not 25 A & B as alleged by the Respondent. The Respondent wrote to the relevant department of the Ministry of Lands Survey and Country Planning Kaduna State for resolution of which plot is 25 A & Band 39 A & B respectively. By a letter dated 9th April, 2003, the Ministry aforementioned informed the Respondent that “The said plot No. 39 Gongola Road does not exist: either on plan or records. This letter is to clear any doubts.” Strengthened by this letter, the Respondent approached the lower Court to interpret survey plan No. KAD/81/11 and determine whether there is any plot called No 39 A & B. After reading the affidavit in support of the originating summons and the counter affidavit of the Appellants (as defendants) and also considering the address of both Counsel and the Exhibits attached, the learned Trial judge held as follows:-
“The defendants have been unable to show that the certificate of occupancy does not cover any other area than the one in contention. I am inclined to accept the interpretation of the plan that the property designated in both site plans and Exhibit J is the same as No. 25 Gongola Road, and I so hold. The references to water and NEPA bill as proof of correct numbering of the plots is tangential and do not establish anything. In the circumstances I enter judgment in terms of the reliefs claimed by the plaintiff.”
Dissatisfied with the stance of the learned trial judge, the appellants filed notice of appeal dated 7th September, 2005 on the same date. Six grounds of appeal are contained in the said notice. Out of the six grounds of appeal, the appellants have formulated five issues for the determination of this appeal as follows:-
(1) Whether the Federal High Court had jurisdiction to entertain and determine the Respondents claims in view of the provisions of section 39 of the land use Act as saved by section 315 (5) (d) of the 1999 Constitution of the Federal Republic of Nigeria.
(2) Whether the Honourable trial Court was right to hear the entire case/claims under the originating summons procedure having by its ruling confined its self to the interpretation of the survey plan only.
(3) Whether declaration of title to land can be granted on mere production of certificate of occupancy and on interpretation of a survey (site) plan.
(4) Whether the trial court was right when it made a finding that the defendants/appellants raised the defence of Justertti to the claim of the plaintiff/Respondent.
(5) Whether the learned trial judge was right in awarding rent as damages to the Plaintiff/Respondent.
The Respondent adopts issues one and four of appellants and adds a third as follows:-
“Whether the trial court was wrong in awarding damages of N500, 000.00 per annum against the appellants.”
Apart from this, the Respondent filed notice of preliminary objection on 6th March, 2009 which states:-
“That issues for determination 2 and 3 are incompetent and academic respectively and grounds 4 and 6 of the Notice and grounds of appeal dated 7th September, 2005 are irrelevant in this appeal.”
The grounds upon which the objection is anchored are that:-
“(1) By section 25 (2) (a) of the Court of Appeal Act 1976, leave of court is required as the issue 2 arose from a ground that requires leave and none was obtained.
(2) Issue 3 did not arise from the facts of this suit, as no declaration was sought for in the suit.
(3) No issue (s) was distilled from grounds 4 and 6 of the Notice and grounds of appeal dated 7th September, 2005, in this suit.”
Arguing the preliminary objection, the Learned Counsel for the Respondent submitted that issue 2 in the appellants’ brief is not covered by the exception to the general rule that substantial questions on jurisdiction can be raised for the first time in the appellate court without leave of court. That what issue 2 is questioning is the procedure adopted by the trial court and not a substantial point of law. He submitted that issue 2 is incompetent as no leave of court was sought and obtained.
Learned Counsel then made an alternative argument for which he cited the cases of Federal Government of Nigeria Vs. Zebra (2003) 1 M.J.S.C. 1 and Fagunwa Vs. Adibi (2004) 12 M.J.S.C. I for whom I think am not relevant at this stage of a preliminary objection. I shall return to this.
Furthermore, that issue 3 is academic as there was no claim for declaration in the suit and that the issue does not derive its foundation from this case. Finally, that this court should discountenance grounds four and six of the notice and grounds of appeal for non conformity with the rules of this court relating to briefs.
The Learned Counsel for the Appellant in his brief and in reply to the above objection concedes that the issue of attacking the jurisdiction of the trial court was not frontally fought at the trial court and that this court will not ordinarily allow a fresh point of law to be raised before it without the point having been taken and decided upon at the court below and without the leave of court. However, that the issue being raised here is substantial point of law based on the provisions of the 1999 Constitution of the Federal Republic of Nigeria and the Land Use Act. He submits further that this point falls within the exception to the general principle disallowing a point of law being raised afresh on appeal without leave. That the issue here does not call for fresh evidence. He cited the case of Samson Owie Vs. Solomon Ighiwi (2005) 3 M.J.S.C. 82 at 121.
It seems to me that the Learned Counsel for the Respondent did not really intend to raise a preliminary objection because apart from filing notice of preliminary objection, he did not profer cogent and sustainable argument therein. Although a lengthy argument in a brief is not always advisable, an argument which occupies barely half a page, to me, leaves much to be desired. In other words, learned counsel raised the objection and expects this court to fight for him to sustain the objection. Let me say it here that the court will not for any reason take over the work of counsel who has been paid to perform such duty. No wonder the learned counsel for the appellant made a short, one paragraph reply. Be that as it may, I shall try to resolve this issue in the interest of justice.
Issue No 2 states:
“Whether the honorable trial court was right to hear the entire case/claims under the originating summons procedure having by its ruling confined itself to the interpretation of the survey plan only.”
I am surprised that issue No 2 which is formulated from ground 2 of the grounds of appeal is said to be a fresh issue. On page 97 of the record of appeal which contains the ruling of the court, the learned trial judge states:-
“The defendant raised a preliminary objection based on two principal grounds (1) abuse of the process of the court and (2) the contentious nature of the application which makes it unsuitable for being commenced by way of originating summons.”
And on page 98 of the record, the court states:-
But the originating summons is not meant to be a forum for controversy over facts and I am only going to examine your site plan nothing more nothing less.”
Having regard to the above quotations from the record of proceedings, it is clear that this issue was raised at the court below and a ruling made on it. Therefore it is not a new issue which should require the leave of this court. Moreso, this is an issue which goes to the jurisdiction of the court below. A court is said to be competent to determine a matter before it when it is properly constituted with respect to the number and qualification of its members, the subject matter of the action is within its jurisdiction, the action is initiated by due process of law, and any condition to the exercise of its jurisdiction has been fulfilled. See Madukolu Vs. Nkemdilim (1962) 2 S.C.N.L.R. 341, Ogunmokun Vs. Military Administrator Osun State (1999) 3 N.W.L.R. (Pt. 594) 261, Minister of Works Vs. Tomas (Nig) Ltd & 26 Ors (2002) 2 N.W.L.R. (Pt. 752) 740. Since the issue of jurisdiction is so fundamental and the pivot of adjudication, the Appellants who were defendants in the court below raised the issue of commencing this suit via an Originating Summons and the court below ruled that the method could be used. Now the appellants are raising the same issue in this court. It cannot therefore be said that it is being raised for the first time. Even if it is raised for the first time, since it relates to the competence of the suit before the court and touches on its capacity or jurisdiction to entertain same, my view is that it can be so raised. See Samson Owie Vs. Solomon Ighiwi (Supra) where the Supreme Court held that where such question as in the instant case involves a substantial point of law, substance or procedural, and it is plain that no further evidence needs to be adduced which will affect the decision, the court will allow the question to be raised to prevent obvious miscarriage of justice.
On the ground that issue 3 did not arise from the facts of this suit, as no declaration was sought for in the suit, I think this is erroneous for even though the Respondent did not expressly ask for declaration of title, the learned trial judge on page 120 of the record declared him owner. This is what the Court said:-
“The plaintiff had solid foundation of the origin of ownership from the ile Nigeria Limited, the certificate of occupancy and a look at these Exhibits A, B, C and D show an unbroken strand of statutory title from the Kaduna ile Limited to the plaintiff. In this case, Exhibit J, the certificate of occupancy by virtue of Exhibit J section 9 of the land use Act, invests on the plaintiff statutory title to that property for the unexhausted residue of the term.”
The only thing that is absent here is that the word “declaration” was not used but with all intent and purpose, the learned trial judge had made declaration of title in favour of the Respondent. So, issue No 3 is alive in this appeal.
On the other assertion that no issues were formulated from grounds 4 and 6, it is my view that issue No 2 relates to ground 4 while issue 5 relates to ground 6 of the grounds of appeal. I have already reproduced the issues in this appeal. For ease of reference, Grounds 4 and 6 without their particulars state:-
“4. The Learned trial judge erred in law when he awarded possession / title of the property No 39 Gongola Road, Kaduna South as property No 25 Gongola Road Kaduna in favour of the Respondent.
- The learned trial judge erred in law when he granted the reliefs sought by the Plaintiff/Respondent.”
A careful reading of the issues and the grounds of appeal will disclose the position taken by me in this appeal. May be I need to advise Counsel formulating issues to always relate same to the grounds of appeal for ease of reference. Had this been done, may be the Respondent would not have wasted the precious time of the Court is raising an objection which lacks merit. It is on this note that I hold that the preliminary objection lacks merit and is hereby overruled.
Having decided on the preliminary objection, the coast is now clear to determine this appeal. It is my view that this appeal can be determined on issues one and two only. I shall therefore, consider the two issues together in the determination of this appeal.
On the 1st issue, the learned Counsel for the appellant submitted that from the questions set down for determination by the Respondent before the lower Court as well as the reliefs claimed against the appellants, it is not in dispute that the claims border on title to land. That it is the claim of the plaintiff and the statute creating the Court that determine the jurisdiction of the Court, relying on the case of Felix Onuorah Vs. Kaduna Refining & Petrochemical Company Limited (2005) 6 M.J.S.C. 137. That the Federal High Court has jurisdiction where the claim seeks to question any administrative action or decision of the Federal Government or any of its agencies. That where the plaintiff s case does not question the administrative action or management or control of either the Federal Government or its agencies, the Federal High Court, will not assume jurisdiction citing the following cases:-
National Electric Power Authority vs. Adegbero (2002) 18 N.W.L.R. (Pt. 798) 79, Alida Adah Vs. N.Y.S.C. (2004) 7 S.C.N.J. 374, Mobil Producing (Nigeria) Unlimited Vs. Lagos State Environmental Production Agency & Ors (2002) 18 N.W.L.R. (Pt. 798) I.
Learned Counsel submitted finally on this issue that considering the reliefs sought by the Respondent as plaintiff in the Court below, which bordered on title to land, Section 251 of 1999 Constitution particularly Section 251 (a) (i) (q) and section 39 (i) (a) and 59 (i) of the Land Use Act, saved by section 315 (5) (d) of the 1999 Constitution, the Kaduna State High Court and not the Federal High Court has the jurisdiction to entertain the suit. He urged the Court to resolve this issue in favour of the appellant.
On the 2nd issue i.e. whether the lower Court was right to hear and determine the entire case or claim under the originating summons procedure, Learned Counsel for the appellants submitted that a case of title/ownership of land cannot be determined through an originating summons which is purely by affidavit evidence. That in such circumstance parties must be given opportunity of stating their case by leading evidence to prove their case and be cross-examined where necessary. He cited the case of Omosule Olisa Vs. Chief Olowodara Asojo (2002) 1 N.W.L.R. (Pt. 747) 13. He urged this Court to also resolve this issue in favour of the appellant.
It was however the contention of the Respondent that notwithstanding that the claim borders on statutory right of occupancy to land, it is the Federal High Court that has jurisdiction to hear the case relying on the cases of Ona Vs. Atanda (2005) 2 N.W.L.R. (Part 656) 144, FHA Vs. John Shoy International Limited (2005) 1 N.W.L.R. (Pt. 908) 637. NEPA vs. Adegbero & 2 Ors (2002) 18 N.W.L.R. (Pt. 798) 79. He urged this Court to hold that since the State High Court had earlier refused jurisdiction in this matter and there is no appeal against that decision, estoppel prevents the appellants from saying that their action that gave rise to this case was not administrative action of an agent of the Federal Government as the issue had been determined by a Court of competent jurisdiction. He cited the case of Adone vs. Ikebudu (2001) 14 N.W.L.R. (Pt. 733) 385. Further more, learned Counsel submits that section 39 (i) of the land use Act is inferior to section 251 (i) of the Constitution of the Federal Republic of Nigeria 1999. He urged this Court to resolve this issue against the Appellants.
It is unfortunate that apart from his alternative arguments in the preliminary objection, the learned Counsel for the Respondent did not proffer any argument on issue No 2 which relates to the propriety or otherwise of deciding this matter via an originating summons. As I said earlier, the two issues shall be taken together.
The main issue arising in this appeal is as to whether the Federal High Court sitting in Kaduna had jurisdiction to hear and determine the action which was brought before it by the Respondent who was the Plaintiff in view of the provisions of section 39 of the Land Use Act. I had earlier set out the questions submitted for determination to the Federal High Court by the Plaintiff.
Section 39 of the Land Use Act states:-
“39 (i) The High Court shall have exclusive original jurisdiction in respect of the following proceedings-
(a) Proceedings in respect of any land the subject of a statutory right of occupancy granted by the Governor or deemed granted by him under this Act, and for the purposes of this paragraph, proceedings includes proceeding for a declaration of title to a statutory right of occupancy;
(b) Proceedings to determine any question as to the persons entitled to compensation payable for improvements on land under this Act.”
If the above provision was the only legislation relating to this matter, then there would be no problem determing the issue as to which Court has jurisdiction in the matter because the questions submitted for determination and the relief sought clearly show that the plaintiff was actually asking for declaration of title to that land. No wonder the learned trial judge did just that. I say so because it is the claim of the plaintiff that determines the jurisdiction of the Court. Also the statute creating the Court also prescribes its jurisdiction. I need to emphasise here that the issue of jurisdiction is a threshold issue which may be considered at any stage in the course of the proceedings. It has been held in a long line of cases that jurisdiction of a Court may be challenged at any stage of the proceedings, be it at the pre-trial stage or during the trial or during the hearing of the appeal by this Court or even at the Apex Court. See Olutola Vs. Unilorin (2005) 3 M.J.S.C. 151, Onuorah Vs. K.R.P. Company Limited (2005) 6 M.J.S.C. 137.
As I had stated above, the determination as to which Court has jurisdiction in this matter could have been made in favour of the State High Court in view of the provision in section 39 of the Land Use Act. But in view of the presence of the Appellants and the provisions in section 251 (i) of the Constitution of the Federal Republic of Nigeria as regards the jurisdiction the Federal High Court, the job is not so easy as one would think. The relevant section is S. 251 (i) (p) (q) (r) & (s). The provision states:-
“251 (i) Notwithstanding any thing 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:-
(p) The administration of the management and control of the Federal Government or any of its agencies.
(q) Subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies,
(r) 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 agencies and
(s) Such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly;
Provided that nothing in the provisions of paragraph (p) (q) & (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.”
In view of the above provision, exclusive jurisdiction is vested in the Federal High Court in civil causes and matters arising from the administration, management and control of the Federal Government, the operation and interpretation of the Constitution as it affects the Federal Government as well as any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decisions by the Federal Government or any of its agencies. It is important to note that the proviso to the subsection gives a person the right to seek redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance, where the action is based on any enactment, law or equity.
In determing the jurisdiction of the Court based on section 251 (i) of the 1999 Constitution, I am of the view that two issues will definitely be considered. The two issues are the parties to the suit and the subject matter of the suit. It is not a difficult thing to identify when the Federal Government is a party to a suit but it may not always be easy when it relates to the agencies of the Federal Government. As was suggested by Tobi, JSC in NEPA vs. Adegbero (2002) 18 N.W.L.R. (Pt. 798) 79 at 100 D – F, the case law and the law of agency will certainly be of help in relevant cases. In the instant appeal, both parties agree that the Appellants are definitely agencies of the Federal Government. There is no doubt about that. But the claim in the suit before the Federal High Court has to do with declaration of Title to land. Ordinarily, by virtue of section 39 and 41 of the Land Use Act, only Courts enumerated in those sections that have original jurisdiction over land matters. While the State High Court has exclusive jurisdiction over lands in urban area by virtue of section 39 (i) of the Land Use Act, it shares concurrent jurisdiction with the customary or other Courts of equivalent jurisdiction by virtue of both its unlimited jurisdiction under section 272 of the 1999 Constitution and the jurisdiction conferred on the customary Courts or other Courts by section 41 of the Act. See Achebe vs. Nwosu (2003) 7 N.W.L.R. (Pt. 818) 103. However, in view of the decision of the Supreme Court in NEPA vs. Edegbero (Supra) it seems that where the Federal Government or any of its agencies is a party in the suit, that jurisdiction of the State High Court would be surrendered to the Federal High Court. In NEPA Vs. Edegbero (Supra) at 95 paragraph E – G, Ogundare JSC has this to say:-
“I have myself read the proviso to paragraphs (q) (r) and (s) of sub-section I of section 230 all over again, I can find no such exception in it that would lead me to find to the contrary. A careful reading of paragraphs (q), (r) & (s) reveals that the intention of the lawmakers was to take away from the jurisdiction of the State High Court and confer same exclusively on the Federal High Court actions in which the Federal Government or any of its agencies is a party while paragraph (s) talked of actions for declaration or injunction; the proviso extended this to actions for damages, injunction or specific performance. It did not say as the learned trial judge, with profound respect; appear to read into it that action for damages, injunction or specific performance against the Federal Government or any of its agencies could still come before a State High Court. I am of the view that the learned trial Judge was in error in his interpretation of the purport of the proviso.”
At page 97 paragraph E-G, His Lordship puts it beyond doubt as follows:-
“From what I have said earlier in this Judgment, the aim of paragraph (q) (r) and (s) of sub-section (1) of section 230 was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agents was a party. A State High Court would no longer have jurisdiction in such matters not withstanding the nature of the claim in the action. “(Italics minefor emphasis)
From the above decision of the Apex Court, it is clear that State High Courts will still exercise their original jurisdiction on land matters as conferred on them by sections 39 and 41 of the Land Use Act subject to the provision of section 251 of the 1999 Constitution with regards to the jurisdiction of Federal High Courts. See Ona Vs. Atanda (2000) 5 N.W.L.R. (Pt. 656) 244, FHA Vs. John Shoy International Ltd (2005) 1 N.W.L.R. (Pt. 908) 637. What remains to be said in the instant appeal is that in view of the fact that the Appellants are agencies of the Federal Government, the Federal High Court rightly assumed jurisdiction notwithstanding the claim before it.
Although the Federal High Court had jurisdiction to entertain this matter, was it proper to have decided it on the Originating Summons used by the Respondent to commence the action? Originating Summons is one of the means of commencing civil proceedings in the Federal High Court but it is intended to be used in limited situations specified in the Rules i.e. where:-
(1) the sole principal question on issue is or is likely to be, one of construction of written law or any instrument made under any written law or of any deed, will, contract or other document or some question of law, or
(2) There is unlikely to be any substantial dispute of fact.
Originating Summons is not suitable for commencing hostile proceedings.
In the instant case, the question submitted for determination and the facts deposed by the Respondent showed that the proceedings were not only likely to be contentious, but also extremely hostile. For whereas the Respondent contends that the property in dispute is No 25 A & B Gongola Road, Kaduna, the Appellants opine that it is No 39A & B Gongola Road, Kaduna. Moreover, both the Appellants and the Respondent are claiming ownership of the said property and that issue of ownership is still outstanding. The question of interpretation of a survey plan when both parties are laying claim to the property does not arise as it is not the survey plan that would determine ownership. Anybody can survey any land and own a plan, whether the land belongs to him or not. Although the production of a survey plan showing the extent and boundaries of the land in dispute is one of the ways in which evidence can be led to prove the boundaries of a person’s land, it is not a sine qua non to ascertain a disputed land. See Owie Vs. Ighiwi (2005) 3 M.J.S.C. 82. I hold the view that, the commencement of this suit at the lower court via an Originating Summons in the face of glaring dispute between the parties as to the facts and ownership of this land was unsuitable. What the Originating Summons sought to do is not a resolution of dispute involving questions of law which could have been most appropriate. See Doherty Vs. Doherty (1964) N.M.L.R. 144, National Bank of Nigeria Ltd Vs. Alakija (1978) 9-10 S.C. 59, Oloyo Vs. Alegbe (1983) 2 S.C.N.L.R. (Pt. 517) 433.
Again, apart from the issue of ownership, there is the issue of what rent should be paid (if any) and what would be the arrears. All these have to be settled by pleadings and proved by evidence at the trial.
On the whole, the first issue is resolved against the appellants while the second issue is in their favour. The appeal therefore succeeds in part.
Accordingly, the judgment of the Federal High Court Kaduna in suit No FHC/KD/CS/67/2004 delivered by A.M. Liman, J on 17th June, 2005 is hereby set aside. The said suit is hereby remitted back to the Federal High Court Kaduna for retrial de novo by another judge of the Federal High Court (other than A.M. Liman J) by a writ of summons. Parties are to bear their respective costs.
Other Citations: (2009)LCN/3272(CA)
