Alhaji Mustapha Oluwagbemiga & Ors V. Chief Gabriel Adeleye Olubo & Ors (1999)
LawGlobal-Hub Lead Judgment Report
FRANCIS FEDODE TABAI, J.C.A.
In the substantive claim filed on the 22/6/93 the Plaintiffs/Respondents claimed:
(1) A declaration that the Oja Oshodi Street Akure linking Isolo Street is a right of way and a public highway and a market square and access to and from the various houses premises and properties and consequently no person or persons/organizations including the 1st defendant his servants, agents privies and any other persons claiming through him has a right to erect either temporary or permanent structures, buildings fences or any obstructions on any part of the said street, highway.
(2) Perpetual injunction restraining the 1st defendant their servants, agents privies or any person claiming through him from erecting any building fence survey beacons or structures on the said street or road.
(3) Perpetual injunction restraining the 2nd defendant its servants, agents, officers and privies from approving building plans or granting any licence or permission to erect any structures whatever on the said Street or right of way.
(4) An order directing the 2nd defendant to prevent the 1st defendant from erecting any such buildings fences or any structures on the street, right of way, or market square in Oja Oshodi Street Akure in Akure Local Govt.
(5) An order directing the 2nd defendant to remove any such structures erected or order the 1st defendant to remove such structures so erected.
And pursuant to a motion for interim injunction on the same day as the writ of summons i.e. on the 22/6/93 the court on the 12/8/93 made the following order:-
“I am of the view, therefore, in the circumstances, that the case be given accelerated hearing. Pending the hearing therefore, I shall order and I do order that the parties shall maintain the status quo on the land in dispute. No order as to costs.
The case is considered for accelerated hearing and is fixed for 23rd and 24th November, 1993 for hearing.”
This order was made by Ojuolape J.
The ruling which is the subject matter of this appeal was sequel to a motion filed by the 10 interveners/applicants/appellants on the 12/10/95 praying for:
(1) An order granting leave to the applicants to represent the Akure Muslim Community in this action, and
(2) And order joining the Akure Muslim Community as Defendants/counter claimants in this suit.
The motion was supported by a 31 paragraph affidavit to which was attached a number of exhibits including:
(1) Exhibit B a Certified True Copy of a Certificate of Occupancy dated 28/8/95 for 99 years from 1/3/95. The said Certificate was signed by the 2nd Defendant/Respondent in the Certificate of Occupancy are the Schedule, A survey plan signed by an S.T.O. (O.A. Olalusil on the 15/5/95 and countersigned by the Surveyor General (S.B.A. Basaru) on the 19/5/95. There is also a Certificate of Registration of the Certificate of Occupancy in the Lands Registry.
(2) Exhibit C dated 24/8/95 conveying the approval of the 2nd Defendant for a Temporary Occupation Licence and,
(3) Exhibit “D” dated 20/1/95 conveying the approval of the Secretary to the State Government for the fencing of the Akure Central Mosque.
After taking address from learned counsel for the parties, the learned trial judge, by her ruling on the 27/2/96, granted the two prayers sought. In addition the learned trial judge examined in considerable details some provisions of the Land Use Act especially Section 26 thereof and made an order in the following terms:-
“Consequently, I hold and declare, pursuant to Section 26 of the Land Use Act that the Certificate of Occupancy Exhibit B herein, registered as No. 36 at page 36 in Vol. 516 in the Lands Registry of Akure, together with the related Exhibits B – B3 and letter Exhibit C together with any Temporary Occupation Licence thereby vested in the applicants herein are altogether null and void. They are hereby expunged from the records of this court relative to this suit”
And after a further detailed review of some cases and statutory provisions on the subject of contempt the learned trial judge proceeded to declare that the 2nd defendant i.e. the Commissioner for Works Lands Housing and Urban Development and six other officers of the Ministry had each committed acts constituting contempt and directed that each of them should within, 14 (fourteen) days of service upon him of the Notice of the-order, show cause why he should not be committed or attached for the aforesaid contempt of the court. It is against the order declaring null and void the Certificate of Occupancy Exhibit B and the Temporary Occupation Licence Exhibit C that this appeal is lodged. From the grounds of appeal filed the appellant formulated only two issues namely:
(1) Whether or not the lower court had jurisdiction to determine the validity of Exhibit “B” and C without hearing the parties in respect thereof.
(2) Whether or not the lower court had jurisdiction to treat Exhibits B and C the way it did at the interlocutory stage. The 1st to 3rd Respondents formulated only one issue and that is-
- Whether the court, has jurisdiction to make an order for contempt committed on the face of the court.
This issue identified by the 1st to 3rd Respondent does not flow from any of the two grounds of appeal and is therefore incompetent. It is therefore struck out.
And in this ruling I would consider the two issues together. The main contention of the appellant is that the trial court was not competent to consider and adjudicate upon the questions of the validity of the Certificate of Occupancy and the Temporary Occupation Licence since that was not the issue before it. Appellants relied on AFORKA V. A.C.B. (1994) 3 NWLR (Part 331) 217 at 226 A.C.B. LTD V OBA (1993) 7 NWLR (Part 304) 173 at 181; OKODUWA V. THE STATE (1988) 2 NWLR.(Part 76) 333. The appellant also complained of not-giving the parties the opportunity of being heard on the new issues before proceeding to make the orders and contended that that occasioned injustice and therefore wrong in law. They relied on UNIVERSITY OF CALABAR V ESSIEN (1996) 10 NWLR (Part 477) 225 HAYAKI V DOGARA (1993) 8 NWLR (Part.313) 586 at 598 CARRIBEAN TRADING and FIDELITY CORP. V. NNPC (1992) 7 NWLR (part 252) 161 at 109.
On the principle regarding granting reliefs not sought they relied on LAWAL V ADENIYI (1997) 3 NWLR (Part 494) 457 ADEMOLA V SODIPO (1992) 7 NWLR (Part 253) 251 at 275. They urged this Court to intervene and set aside the orders made without jurisdiction.
On these two issues the 1st – 3rd Respondent proferred no arguments.
The ruling of the learned trial judge raised quite a number of controversial implications. I would however confine myself only to the issues relevant to this appeal.
From the affidavit evidence it is clear that the Certificate of Occupancy and the Temporary Occupation Licence were both issued long after the Court had given the interim order dated the 12/8/93 and there is presumption that the 2nd defendant i.e. the Commissioner for Works Land Housing and Urban Development who had entered appearance know that the Certificate of Occupancy the Temporary Occupation Licence and related rights or licences were the very rights sought to be prevented in the substantive action.
Be that as it may, our law reports are replete with authorities on the impropriety of a court granting reliefs not sought by the parties. See OKUBULE V OYAGBOLA (1990) 4 NWLR (Part 147) 723 AKINBOBOLA V PLISSON (NIG) LTD (1991) 1 NWLR (Part 167) 270. ABOSHIM V UGAH (1993) 2 NWLR (Part 278) 752 OLUROTIMI V IGE (1993) 8 NWLR (Part 311) 257. The applicant sought only two reliefs which-were granted. The court then proceeded to make the orders and reliefs not sought by the parties. It is settled law that where a Court grants reliefs not claimed they should not be allowed to stand and must be set aside. In AJAYI V TEXACO NIG LTD (1987) 3 NWLR (Part 62) 577, HASSAN V MAIDUGURI MANAGEMENT COMMITTEE (1991) 8 NWLR (Part 212) 738 at 749. In this case having regard to the-fact that the orders complained of were not sought by any of the parties, the trial court had no competence to make them. The consequence is that I resolve the only two issues in favour of the appellants. This appeal therefore succeeds. That part of the ruling and orders concerning or relating to the nullification of the Certificate of Occupancy Exhibit B and the Temporary Occupation Licence Exhibit C is hereby set aside. Also set aside is-that part of the ruling that directs the 2nd defendant and the six other public officers to show cause why they should not be committed or attached for contempt. For the avoidance of doubt this orders setting aside the offending part of the ruling of the learned trial judge, is, without prejudice to the rights of the parties to raise (1) the same issues of the validity of the issuance of the Certificate of Occupancy and Temporary Occupation Licence and related documents issued by and/or from the office of the 2nd defendant and any matters or orders relating thereto and (ii) the issue of contempt, for determination by the trial court. It is also ordered that the suit No. AK/130/93 be heard and determined by another judge of the High Court of Ondo State.
There shall be costs in favour of the applicants/appellants assessed at N1,500.00.
Other Citations: (1999)LCN/0545(CA)
