Home » Nigerian Cases » Court of Appeal » Clifford Ebere & Ors V. Imo State University & Ors (2016) LLJR-CA

Clifford Ebere & Ors V. Imo State University & Ors (2016) LLJR-CA

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FREDERICK OZIAKPONO OHO, J.C.A.

This Appeal is against the judgment of the High Court of Imo State Holden at Owerri in Suit No. HOW/245/2003 in which the Court presided over by the N. B. UKOHA, J dismissed the claims and reliefs of the Claimants on the 17-1-2011. The Claimants claimed against the Respondents the following reliefs at paragraph 16 (1), (2), (3), (4) and (5) of the Statement of Claim, thus;
“16. WHEREFORE the Plaintiffs’ claim against the Defendants jointly and severally as follow;
1. Declaration that the Plaintiffs are entitled to the statutory right of occupancy in and over the pieces or parcels of land known as and called OKO OHIA ONUNWA OKPOKORO and NWANRU situate at Umuoye Irete Owerri Imo State.
2. Declaration that the purported acquisition of the aforesaid pieces or parcels of land by the 3rd and 5th Defendants or by the Imo State Government is null and void and off no effect.
3. Declaration that the purported allocation or grant of right of occupancy or lease or assignment of the aforesaid pieces or parcels of land to the 1st Defendant by

the 3rd and 5th Defendants is null and void and of no effect.
4. N5,000,000.00 (Five Million Naira) being damages for trespass into the aforesaid pieces or parcels of land.
5. Perpetual Injunction restraining the Defendants, their servants and or agents from entering or trespassing into the said land and in whatever manner and interest in and over the said pieces or parcels of land.

Pleadings were filed and exchanged and trial commenced on the 28th day of November, 2006. See pages 102-137 of the Records. The Trial Court in a considered judgment dated the 17th January, 2011 dismissed the claims of the Claimants who are Appellants in this Appeal. See pages 177-208 of the Records. The Appellants not satisfied with the judgment of the Lower Court have appealed against the decision of the trial Court vide a Notice of Appeal filed on the day of 7th March, 2011. A total of Eight (8) Grounds of Appeal were filed. (See pages 95 to 103 of the records of Appeal). In argument of this Appeal, the Appellants nominated a total of Eight (8) issues
(i) Whether the land-in-dispute was acquired by Imo State Government. (Ground One).

(ii) Whether the Lower Court was right to hold that by Decree No. 31 of 1975 , Edict Nos. 1 and 3 of 1976 (Imo State Capital Special Provisions Edict 1976) validity and inconsistency with Section 31 of the 1963 Constitution of the Federation of Nigeria cannot be questioned by any Court. (Ground Two).
(iii) Whether the Appellants suit was statute barred. (Ground Three)
(iv) Whether Exhibit ‘K’ was in law proof of the area acquired having regard to Schedule A, B and C of Edict No. 3 of the 1976. (Ground Four).
(v) Was the Lower Court correct in holding that Appellants were paid compensation when there was overwhelming evidence to the contrary? (Ground Five).
(vi) Whether the Lower Court was right in holding that Law No. 5 of 2004 (Imo State University Law) validated the purported acquisition of the Appellants’ land. (Ground Six).
(vii) Whether the Lower Court was right by holding that the appearance of Professor O. E. Nwebo and Dr. U. U. Chukwumaeze for the 1st and 2nd Respondents in this suit, they being Public Officers (Lecturers in the University) did not offend the provisions of 1999 Constitution of the Federation of

Nigeria. (Ground seven).
(viii) Whether the Appellants were entitled to their claims in the suit. (Ground eight).

On the part of the 1st and 2nd Respondents, a Notice of Preliminary Objection was filed objecting to the hearing of this Appeal on grounds of competence of the suit and jurisdiction of the Lower Court. The sole issue canvassed in opposition of the hearing of the suit is as follows;
“Whether by virtue of Section 22(1) & 22(2) of the Imo State University Law No. 5 Of 2004 Suit No: HOW/245/2003 is competent for non-issuance and service of Pre-Action Notice and failure to sue within three months of the cause of Action?”

In reaction and in opposition of the grant of the Notice of Preliminary Objection the Appellant filed a Reply to the 1st and 2nd Respondent’s Notice of Preliminary Objection dated 10-7-2015. In the alternative and in the event that the Notice of Preliminary objection is overruled, 1st and 2nd Respondents also nominated a total of Four (4) issues for the Court’s determination as follows;
(i) Whether the Court below was right to have held that the Government of Imo State acquired the

land in dispute and that this suit is statute barred by virtue of the Limitation Law applicable in Imo State?
(ii) Whether from the evidence on record, the Court below was right when it held that the Appellants were paid compensation for Government acquisition of the land in dispute?
(iii) Whether the Court below was right to have held that the appearance of Prof. O. E. Nwaebo and Dr. U. U. Chukwumaeze (now Prof. U. U. Chukwumaeze) did not offend the provisions of the 1999 Constitution as amended?
(iv) Whether the Court below was right to have dismissed the Appellants claims?

On the part of the 3rd, 4th and 5th Respondents learned Counsel adopted all eight (8) issues nominated by the Appellants.

?At the hearing of the Appeal on the 2-3-2016 parties adopted their respective briefs. The Appellants? Counsel adopted the Appellants? brief and Reply to Notice of Preliminary Objection and prayed this Court to allow the Appeal and set aside the judgment of the trial Court, while Counsel to the 1st and 2nd Respondents adopted 1st and 2nd Respondents? brief and the arguments in support of Preliminary Objection and urged this

Court to up-hold the preliminary objection and dismiss the appeal. Learned Counsel for the 3rd, 4th and 5th Respondents also adopted their brief of argument and urged the Court to dismiss the Appeal. Appellants’ brief of argument was settled by EZEOHIRI FRED NJEMANZE, ESQ., (as he then was, who only recently got appointed to the Imo State High Court Bench), while 1st and 2nd Respondents’ brief of argument was settled by MAZI V. N. UDEGBULEM, ESQ. On the part of the 3rd, 4th and 5th Respondents, their brief of argument was settled by C. N. AKOWUNDU ESQ., Director, Civil Litigation Ministry of Justice Imo State, Owerri.

DETERMINATION OF THE NOTICE OF PRELIMINARY OBJECTION;
The arguments canvassed by learned Respondents’ Counsel in support of the Notice of Preliminary Objection is as follows;
GROUND ONE OF OBJECTION;
ARGUMENT
In arguing the sole ground of objection, learned Counsel submitted that the suit No: HOW/245/2003 is incompetent and statute barred. He referred Court to Section 22 of the University Law which he also reproduced as follows;
“22(1)
a. No suit shall be commenced against the

University or any of its bodies until at least one month after written notice of intention to commence same shall have been served on the Vice-Chancellor by the intending Plaintiff or his agent.
b. The notice shall clearly state the cause of action, the particulars of claim, the name and place of abode of the intending Plaintiff and reliefs he claims.?

It was contended by Counsel that the service of a valid pre-action notice where the law requires it to be served is a condition precedent to the invocation of the adjudicatory powers of the Court. He further said that the provision of the Imo State University Law (i.e. S.22 (1)(a) which provides for a pre-action notice is a condition precedent to adjudication. Counsel further argued that it is fundamental that the Court must have jurisdiction and that where the Court lacks jurisdiction to hear a case, the proceedings are and remain a nullity, however well conducted and brilliantly decided they might have been. Counsel cited the locus Classicus in MADUKOLU vs. NKEMDILIM (1962) 2 SCNLR 341.

?It was the submission of Counsel that the Appellants never issued nor served any such notice on the

Respondents before the institution of this suit. He also reminded Court that no such notice was pleaded, if at all it was given. It was also submitted by Counsel that Section 22(1) (a) without any ambiguity is saying that the University or any of its bodies shall be served with pre-action notice if anyone wants to sue the University or any of its bodies. In other words, that the University will be served and if any of its bodies is a party, that body shall also be served. It was further submitted by Counsel that in determining who is a body in the University community, Section 6(1) of the University Law becomes handy as it provides that:
“6(1) The University shall consist of:
a. A Chancellor
b. A Pro-Chancellor, and a Council
c. A Vice-Chancellor and a Senate
d. … e. …

Arising from the foregoing, Counsel contended that the Vice-Chancellor who is the 2nd Respondent in this appeal as well as the 1st Respondent were never served any pre-action notices in accordance with the dictates of Section 22 (1) (a) of the University law. As for the use of the word; ‘or’ Counsel said that when used

in a statutory enactment is construed disjunctively and not conjunctively such that the ?or? in S.22 (1) of the Imo State University Law means that both the University or any of its bodies (in this case, the Vice-Chancellor) is entitled to be served with a pre-action notice before any of them can be sued. For this, Counsel referred Court to Section 18(3) of the Interpretation Act Cap 123 LFN (2004) which says that:
?The word ?OR? and the word ?OTHER? shall, in any enactment, be construed disjunctively and not as implying similarity?

It was contended by Counsel that the requirement of pre-action notice as in the instant case are not merely ornamental as they go to root of what will make the institution of such an action in Court valid and would enable the Court exercise jurisdiction so conferred on it. Counsel cited the cases of UNIVERSITY OF IFE vs. FAWEHINMI CONSTRUCTION CO. LTD (1991) 7 NWLR (PT. 201) 26; SHOMOLU LOCAL GOVERNMENT COUNCIL vs. AGBEDE (1996) 4 NWLR (PT. 441) 174; NNPC vs. FAWEHINMI (1998) 7 NWLR (PT. 559) 598 AT 617 A ? C.

It was also contended by Counsel that the Respondents

by Exhibit ‘D’ took physical possession of the parcel of land in dispute on the 6th day of February, 2003 (See page 151 to 152 of the record) and that the suit was filed on the 16th day of September, 2003 more than 3 months from the date of cause of action as provided by Section 22(2) of the University Law. Consequently, Counsel contended that the suit was therefore statute barred, having been commenced more than three (3) months from the 6th day of February, 2003 to the 16th day of September, 2003. He cited the case of BRITISH AIRWAYS PLC vs. AKINSONYE (1995) 1 NWLR (PT. 374) SHELL PETROLEUM DEVELOPMENT CO. NIG. LTD vs. FARAH (1995) 3 NWLR (PT. 382) 148. Counsel submitted that when a suit is statute barred, the only duty a trial Court has with it is to strike it out and that the essence of the statute of limitation like Section 22(2) of the University Law is designed to stop or avoid a situation where a Plaintiff can commence an action anytime he feels like doing so. Counsel most respectively urged the Court to resolve the preliminary objection in favour of the Respondents and strike out the Appeal.

In response and in opposition of the grant

of the notice of preliminary objection, learned Appellants Counsel contended that the Objection had not been raised timeously as required and that in any case the 1st and 2nd Respondents took all necessary steps in furtherance of the trial and failed to raise any objection as the competence of the suit. Counsel contended that the sudden realization of their rights is clearly an afterthought and urged the Court to discountenance their objection. Counsel also argued that pre-action notice does not belong to a species of rights which cannot be waived after fully participating in the trial at the Lower Court. He further contended that the 1st and 2nd Respondents cannot now blow hot and cold, by approbating and reprobating over the competence of the matter in Court. It was argued by Counsel that having waived their rights and participated fully in the trial they are estopped by their conduct from raising the point at this time. He cited the cases of NNEJI vs. CHUKWU (1988) 3 NWLR (PT. 81) 184; ATANDA vs. AJANI (1989) 6 SCNJ (PT. 11) 193 AT 220; MTN NIG. COMMUNICATION LTD vs. ALUKO (2014) ALL FWLR (PT. 732) 701 AT 1729; where according to Counsel the Court

was asked not to re-open a procedural irregularity which has been waived at the instance of the party who failed to raise it timeously. It was further contended by learned Counsel that a person who is entitled to the benefit of a statutory provision may as well waive it and allow the proceedings to continue as if the provision does not exist. Counsel cited the case of PRINCE AJIBOLA vs. SOGEKE (2002) FWLR (PT. 93) 1959; EZE vs. OKECHUKWU (2003) FWLR (PT. 140) 1710; In the case of FEEDS & FOOD FARMS NIG. LTD. vs. NNPC (2009) 6-7 SC 1, Counsel told Court that a similar issue came before Court involving Section 12(2) of the NNPC Act the question raised was whether as a matter of law, the right to a pre-action Notice could be waived by the Respondent. He said that the Supreme Court relying on its decision in MOBIL PRODUCING NIG. UNLIMITED vs. LAGOS STATE ENVIRON. PROTECTION AGENCY, held that the right to be served with a pre-action Notice does not fall within the category of rights which cannot be waived and further stated that it is correct law to say that a party can waive his right on the issue.

Apart from these, Counsel contended that assuming there

was irregularity in the proceedings that it would not have succeeded in nullifying the proceedings at the trial Court. Counsel referred Court to the provision of Order 5 Rule 2(1) High Court of Imo State (Civil Procedure) Rules, 2008 which makes provisions for the remedies of waiver following where the Objecting party has taken steps in the matter and raised no objections within a reasonable time after becoming aware of the irregularity. Counsel argued that the 1st and 2nd Respondents having taken steps in the procedural approaches in the matter cannot be heard at this stage to complain. Counsel cited the cases of NIGER PROGRESS LTD vs. NEL CORP (1989) 3 NWLR (PT. 107) 68; ENTERPRISE BANK LTD vs. AROSO (2014) 9-11 KINGS LAW REP. (PT. 353) 3353 AT 3379.

On the second arm of the objection, Counsel contended that the 1st and 2nd Respondents did not raise the issue in their pleadings or as a point of law for the determination before trial commenced. He contended that parties are bound by their pleadings and that the issue of the suit being statute barred was not raised in the pleadings as this ought to have been done to allow the adverse parties define their

lines of evidence at the trial. Counsel cited the case of KATE ENTERPRISES LTD vs. DAEWOO NIG LTD (1985) 2 NWLR (PT. 5) 116. In addition, Counsel contended that Section 22(2) of Law No. 5 of 2004 does not affect matters bothering on recovery of land. He added that Section 22(2) is similar to Section 2(b) of the Public Officers’ Protection Law and that the Supreme Court has consistently held that the Public Officers Protection Act does not apply to cases of contracts, recovery of land, labour and works done. He also cited the case of NPA vs. CONTRUZIONI GENERAL (1974) ALL NLR 945; OSUN STATE GOVT. vs. DALAMI NIG. LTD (2009) 9 NWLR (PT. 1038) 66; FGN vs. ZEBRA ENERGY LTD (2002) 18 NWLR (PT. 798) 162 in support.

I have taken a very careful consideration of the arguments of learned Counsel for the 1st and 2nd Respondents and those of the Appellant made in reply. The first port of call in the Court’s efforts to resolve the objections raised is the question of failure to give a pre-action notice under Section 22(2) of the Imo State University Law. The rationale for the necessity of the pre-action notice is to bring the grievance or grouse of the Claimant

more effectively to the defendant so as enable the defendant fully appreciate the Claimant’s position and make up its mind on whether to settle and compromise the Claimant’s claim or in the alternative call the Claimant’s bluff and ask him to pursue his claim in Court. Another purpose is to prevent the adverse party from being taken by surprise so that he can at least have adequate time to prepare to deal with the claim against it. See GBADAMOSI vs. NIGERIA RAILWAY CORPORATION (2007) ALL FWLR (PT. 367) 855; AMADI vs. NNPC (2000) 6 SC (PT.1) 66.

Generally, the failure to give a pre-action notice is a fundamental omission which nullifies any action taken in its absence and cannot simply be regarded as a mere irregularity but the non-compliance with the requirements of a pre-action notice does not take away the constitutional right of access to Court of the litigant neither does it defeat his cause of action but merely put the jurisdiction of Court on hold pending compliance with the precondition. See NNONYE vs. ANYICHE (2005) 2 NWLR (PT. 910) 623; ARO vs. LAGOS ISLAND L.C.C. (2002) 4 NWLR (PT. 757) 385.
The effect of non-compliance

or non-service with a pre-action notice where it is statutorily required is only an irregularity which can only render an action incompetent. The status of ‘mere irregularity’ automatically means that it can be waived. In other words, the pre-action notice as a mere irregularity is not one of those that cannot be waived by the defendant who fails to raise it either by motion or plead it in the statement of defense. In essence therefore, where the defendant fails to raise the issue timeously or fails to plead the issue, as required, the presumption of the law is that he has waived his right to rely on same. See the decision of this Court in ETI-OSA L.G.C. vs. JEGEDE (2007) 10 NWLR (PT. 1043) 537. The Respondent herein having failed to raise the Appellants’ non-compliance with Section 22 (1) (a) of the Imo State University Law on the requirement on the part of the Claimants to serve pre-action notice, I cannot help but agree with learned Respondents’ Counsel that their failure and the act of their having fully participated in the trial at the Lower Court shows that they have indeed waived their rights on the issue and are accordingly

estopped by their conduct from raising the issue at this time and I so hold. See the cases of NNEJI vs. CHUKWU (1988) 3 NWLR (PT. 81) 184; ATANDA vs. AJANI (1989) 6 SCNJ (PT. 11) 193 AT 220;
MTN NIG. COMMUNICATION LTD vs. ALUKO (2014) ALL FWLR (PT. 732) 701 AT 1729.

In respect of the second leg of the objection taken against the hearing of this Appeal, by the 1st and 2nd Respondents under Section 22(2) of the Imo State University Law No. 5 of 2004 for not commencing this action within three (3) months of the date of the accrual of cause of action, it is important to note that the said Section, which is similar to Section 2(b) of the Public Officers Protection Law does not affect matters bothering on recovery of land, breaches of contract or for claims for work or labour done. See FGN vs. ZEBRA ENERGY LTD (2002) 18 NWLR (PT. 798) 162; C.B.N. vs. ADEDEJI (2004) 13 NWLR (PT. 890) 226.

In the final analysis, the notice of Preliminary Objection is overruled and accordingly dismissed.

DETERMINATION OF THE SUBSTANTIVE APPEAL;
It may be proper to first begin by going over the facts of this case as a way of laying a foundation for the proper

appreciation of the issues presented in this Appeal. The Appellants are members of Umuogboaku family of Umuoyo, Irete in the Owerri-West Local Government Area, Imo State of Nigeria. At the Lower Court, the suit was brought in a representative capacity for themselves and as representing Umuogboaku family of Umuoyo Irete. They have claimed to be the owners of the parcel of land in dispute i.e. two contiguous pieces or parcels of land known as and called ‘Oko-Ohia-Onunwaokpokoro’ and ‘Nwanru’ both situate and lying at Umuoyo Irete, Owerri-West Local Government Area, Imo State.

The Appellants exercised acts of ownership and possession over these parcels of lands including farming on the land and harvesting economic crops and tress from time immemorial and up till date. They claim to still have their farm crops are on the land. The Appellants’ ancestor Ogboaku deforested the lands and in accordance with the native laws and custom of Irete, at the death of Ogboaku, the lands devolved on his four sons namely; Duruamarala, Ogbuehi Ozurumba, Mbata and Ofomezi. The four sons exercised acts of ownership over the land

communally without any let or hindrance from any quarters. The four sons of Ogboaku had Akalonu and Durugo (sons of Duruamarala) Ebere and Onwunaemyelu (sons of Ogbuehi Ozurumba) Akujobi and Njoku (sons of Mbata) and Okoroafor son of Ofomezi. These grandsons of Ogboaku inherited the lands jointly after the death of their respective fathers. Since then descendants of Duruamarala, Ogbuehi Ozurumba, Mbata and Ofomezi retained the lands communally exercising diverse acts of ownership and possession.

The Appellants were surprised to see the Defendants with their bulldozer brushing the land and in the process destroyed their farm crops and economic trees. This act was done without the consent, authority and or license of the Appellants. The Appellants confronted the Defendants and their agents who claimed that the two contiguous parcels of land had been acquired and allocated to the 1st Respondent. The land was never acquired by the Government of Imo State. No notice of acquisition or intention to acquire the land was issued and served on the Appellants. The Appellants Solicitor wrote the 1st Respondent over its trespassory act and gave notice of intention to

commence the law suit against the 1st Respondent. Despite the notice the Defendants continued their trespassory act, and the Appellants had no other option than to file the suit against them for declarations, damages for trespass and injunction.

ARGUMENTS OF LEARNED APPELLANTS COUNSEL:
The Appellants state that the following issues call for determination in this appeal.
ISSUES ONE & TWO:
* Whether the land-in-dispute was acquired by Imo State Government. (Ground One).
* Whether the Lower Court was right to hold that by Decree No. 31 of 1975, Edict Nos. 1 & 3 of 1976 (Imo State Capital Special Provisions Edict 1976) validity and inconsistency with Section 31 of the 1963 Constitution of the Federation of Nigeria cannot be questioned by any Court. (Ground Two)

Learned Appellants’ Counsel referred Court to paragraphs 6 and 8 of the 1st and 2nd Respondents’ Statement of defense and paragraphs 5 of the 3rd, 4th and 5th of the Respondents’ Statement of Claim and contended that the Respondents case is that the parcels of land-in-dispute was validly acquired by the Imo State Government and therefore that the

allocation by Imo State Government of the land-in-dispute to the 1st and 2nd Respondents was valid. See page 17 and 22-24 of the Records. Counsel further contended that by paragraphs 4, 5, 6, 7 and 8 of the 1st and 2nd Respondents Statement of Defense, the ownership of the land-in-dispute by the Appellants was not challenged and not in issue. It was also contended by Counsel that the pleadings of the 3rd, 4th and 5th Respondents also show that the ownership of the land by Appellants from their forebears was not in issue and not challenged.

Counsel said that the Respondents’ case rests squarely on their pleading that the land in dispute was acquired by virtue of Edicts Nos. 1 and 3 of 1976 (Imo State Capital (Special Provisions) Edict 1976). By these showing, Counsel argued that the Appellants pleadings vide paragraphs 4, 5, 6 and 7 of the Statement of Claim at pages 5 and 6 of the Records were not challenged or controverted by the Respondents. In addition that they were not traversed; He cited the cases of EKE vs. OKWARANYA (2001) FWLR (PT. 51) 1974 AT 1994; AKINTOLA vs. SOLANO (1986) 2 NWLR (PT. 24) 589; LEWIS & PEAT (NRI) LTD vs. AKHIMIEN

(1976) 7 SC 157.

From the state of pleadings, learned Counsel told Court that the parties joined issues on the fact as to whether the Appellants land-in-dispute was acquired by the Government of Imo State in 1976 or not. See paragraphs 10, 11 and 12 of the Statement of Claim. Pages 6 ? 7 of the Records and paragraphs 6 and 8 of the 1st and 2nd Respondents Statement of Defense; page 17 of the Records and Paragraph 5 of the 3rd, 4th and 5th Respondents’ Statement of Defense. Pages 22 ? 24 of the Records.

It was also contended by Counsel that since the Respondents are the ones asserting that the Appellants land-in-dispute was acquired by the Imo State Government in 1976, the onus lies on them to prove, which onus they failed to discharge, having failed to lead credible evidence in proof of the averments in their respective pleadings touching on this issue. Counsel cited the case of ARE vs. ADISA HOLDINGS LTD (2004) 13 NWLR (PT. 891) 436 AT 454 ? 455 in support. According to learned Counsel the Respondents at the trial failed to lead credible evidence on the issue of acquisition and that the Lower Court was wrong to hold that the land

was acquired in 1976. Counsel said that the trial Court failed in its duty to assess and evaluate the evidence of the parties on this issue and apply the relevant laws and superior Courts of record decisions on similar issues to this case and led to a miscarriage of justice. He added that the principle in MOGAJI vs. ODOFIN (1978) 1 LRN 212 was not followed by the Lower Court.

?It was also contended by Counsel that the Respondents? reliance on the Imo State Capital (Special Provisions) Edict Nos. 1 and 3 of the 1976 as the basis of the alleged acquisition of the disputed parcel of land has to be examined against the background of the provisions of Section 31 of the 1963 Constitution of the Federal Republic of Nigeria which Section was not suspended by any of the Military Decrees. It was further contended that as at 1976 when Imo State Capital (Special Provisions) Edict 1976, came into force, the provisions of Section 31 of the 1963 Constitution, which was the ground-norm, was very much in force. Counsel added that Chapter 3 of the 1963 Constitution was not suspended at all times material to the creation of Imo State in 1976, while Section 1 of the

said Constitution of the Federal Republic of Nigeria, 1963 contained the Supremacy Clause of the said Constitution.

In respect of the preservation of the efficacy of any law in force on the 31st day of March, 1958, upon the enactment of the 1963 Constitution, Counsel cited Section 31(2) of the said Constitution supra, which provides thus;
Nothing in this Section shall affect the operation of any law in force on the thirty-first day of March, 1958, or any law made after that date…”

It was therefore argued by Counsel that the Public Lands Acquisition Law, Cap 105, Laws of Eastern Nigeria, 1963, as applicable to Imo State, was indeed preserved by Section 31(2) of the Constitution of the Federal Republic of Nigeria, 1963 and that by Section 1 of the 1963 Constitution, any provision of Imo State Capital (Special Provisions) Edict, 1976, inconsistent with the provisions of Section 31 of the said 1963 Constitution, is void to the extent of its inconsistency. He further argued that Section 31 of the 1963 Constitution created rights to property and belongs to the Sections in Chapter 3 of the 1963 Constitution that were saved

and not suspended. Counsel cited the cases of UDE vs. NWARA (1993) 2 NWLR (PT. 278) 638; AJOKU vs. AG RIVERS STATE (2006) ALL FWLR (PT. 312) 2147 AT 2163-2164.

Learned Appellant’s Counsel also contended that the Public Lands Acquisition Law Cap 105, 1963, Laws of Eastern Nigeria, applicable to Imo State, is an existing law by virtue of the 1963 Constitution, and was the operational law guiding acquisition of lands in Imo State, and that any attempt by any subsequent law to whittle down any of its provisions is void to the extent of its inconsistency. He said that the Public Lands Acquisition Law Cap 105, 1963 provided the way and manner of acquiring private property which the 3rd, 4th and 5th Respondents did not comply with. According to Counsel, the Court as a guardian of the Constitution must never hesitate to pronounce any legislation invalid whenever it contradicts or is inconsistent with the provisions of the Constitution. Counsel said that to acquire private property, the government must comply with the provisions of the Public Lands Acquisition Law Cap 105, 1963 which was in operation at the material time. Counsel further said that

Sections 5, 8, 9 and 25 of the said Law, specifically provided the mode or way and manner by which a citizen’s property may be acquired by Government which includes issuance and service of notices of intention to acquire, notice and service of notice of acquisition on the person or persons whose property is/are to be acquired, and which notice must disclose the purpose of the acquisition.

It was argued by Counsel that the provision of the law must be strictly adhered to. He said that the principle which the Courts have acted upon is to construe ex-proprietary statutes which encroach on a person’s propriety rights fortissimo contra proferentum; that is, strictly against the acquiring authority but sympathetically in favour of the citizen whose property rights are being deprived. OGBUEFI vs. ASEC (2011) ALL FWLR (PT. 603) 1873 AT 1916; UDOH vs. O.H.M.B. (1993) 7 NWLR (PT. 304) 139; RE: BOWMAN, SOUTH SHIELD (THAMES STREET) (1932) 3KB 621 AT 633. BELLO vs. DIOCESAN SYNOD OF LAGOS (1973) 3 SC 103. PEENOK LTD vs. HOTEL PRESIDENTIAL LTD (1982) 12 SC 1; OBIKOYA vs. GOV. LAGOS STATE (1987) 1 NWLR (PT. 50) 385.

It was also contended by Counsel

that once the law has prescribed a particular method of exercising statutory power, any other method of exercising the power is excluded. He cited UDE vs. NWARA (Supra). The Public Lands Acquisition Law under examination has provided procedures under Sections 5, 8, 9 and 25 for acquiring private property by the government or authority, and government must follow and comply with the statute; PROVOST LAGOS STATE COL OF EDUCATION vs. EDUN (2004) 6 NWLR (PT. 870) 476; EREKU vs. MIL-GOVERNOR, MID-WEST (1974) 70 SC 59 AT 68. AG-BENDEL STATE vs. AIDEYAN (1989) 4 NWLR (PT. 118) 646 AT 673-676.

Learned Counsel told Court that the Appellants pleaded in paragraphs 10, 11 and 12 of their Statement of Claim that no notice of acquisition was served on them and also led evidence in support of these pleadings which was not challenged by the Respondents and yet issues joined on that point. He also said that the Respondents did not produce any evidence that any notice of acquisition was issued and served on the Appellants, who are the owners in possession of the disputed land. Counsel submitted that the failure to comply with the provisions of the law relating to

acquisition of land renders the purported acquisition void. He cited the cases of AG-BENDEL STATE vs. AIDEYAN (1989) 4 NWLR (PT. 118) 646 AT 673-676; YAKUBU vs. IMPRESIT BAKOLORI (2011) ALL FWLR (PT. 598) 827 AT 839. Counsel referred this Court to the case of ONONUJU vs. AG ANAMBRA (2009) 5 KINGS L.R. 1357 AT 1377, where the Supreme Court per ADEREMI, JSC had this to say;
“The fundamental question to now ask is whether there was a proper acquisition of the land in 1982? Put in another way, was the notice or revocation duly served on the Appellants as required by law? The key witness on this issue is DW3. In the majority judgment in ascribing evidential value to this evidence, AKPABIO, JCA who read the lead judgment said ‘First there can be no argument that effective service of notice of revocation is a sine qua non to any valid acquisition of land by any government, be it Federal, State or Local Government..”

Counsel also referred Court to the observation of the learned JSC on the same issue as it relates to the minority judgment SALAMI, JCA where the Court said as follows;

“The Respondent having

failed to establish compliance with the provision of the Act, the acquisition, in my view, is bad ab-initio and any act predicated upon the unlawful acquisition is equally bad. The acquisition on behalf of the Federal Government as well as subsequent grant to the third Respondent is bad. I agree with the view of SALAMI, JCA that the Respondents failed to comply with the provision of the Act going by the evidence before the Trial Court. If any service was done at all, it was done in violation of the law.”

It is further argued by Counsel that it is after these formalities as prescribed in Section 5, 8, 9 and 25 of the Public Lands Acquisition Law Cap 105, 1963 are complied with that the land can be said to be vested in the Government of Imo State, who can only allocate land vested in it. Counsel cited the case of DAKOUR vs. LSDPC (2003) FWLR (PT. 143) 139. He contended that the land in dispute was never vested in the Government of Imo State before the purported allocation to the 1st Respondent. Counsel also urged the Court to take a hard look at the pleadings and evidence adduced at the trial, which did not show or establish that the

land of the Appellants was acquired for any public purpose. He said, that there were no notices of acquisition issued and served and that none were tendered by the 3rd, 4th and 5th Respondents who also pleaded none. In addition, he said, that the trio also failed to plead or tender evidence that it obtained a certificate of title of the land-in-dispute pursuant to Section 25 of the Public Lands Acquisition Law 1963.

According to learned Counsel the Law is clear that where the certificate of title is not obtained in compliance with Section 25 of the law, the purported acquisition shall be rendered void because it is the certificate that vests title of the land in the acquiring authority. He cited the cases of CITY PROPERTY DEV. LTD vs. AG. LAGOS STATE (1976) 1 SC 71 AT 115 ? 116; ATUNRASE vs. FEDERAL COMMISSIONER OF WORKS (1975) 6 SC 10; LION BUILDING LTD vs. SHADY (1976) 12 SC 135; NIGERIA ENGINEERING WORKS LTD vs. DENAB LTD (1997) 10 NWLR (PT. 525) 481 AT 526 ? 527 in support.

?It was contended by Counsel that the trial Court in its judgment made so much weather over the gazette of the law and the fact that one of the Appellants?

witnesses said he knew about the acquisition of 1976 vide the law made by the State Government at the time. In answer to this Counsel drew attention to the decision of this Court in ATTAHIRU vs. BAGUDU (1998) 3 NWLR (PT. 543) 656 AT 667; the Court held as follows;
“It is also my respectful view that the Learned Trial Judge cannot rely upon the fact of the gazetting of the removal of the Appellant per se to find that the Appellant was properly removed”

See OLATUNJI vs. MIL GOV. OYO STATE & ORS. (1995) 5 NWLR (PT. 397) 586; JEGEDE vs. CITICON NIG. LTD (2004) 4 NWLR (PT. 702) 112; In ADMINISTRATORS/EXECUTORS OF THE ESTATE OF ABACHA vs. EKE-SPIFF (2003) NWLR (PT. 800) 114; also in GBAFE vs. GBAFE (1996) 6 NWLR (PT. 455) 417 where the Supreme Court in held that notification in the gazette of an otherwise invalid act would not cure the legal defect in the act. It was therefore, submitted by Counsel that the gazette or legislating on the acquisition of the land-in-dispute by Government of Imo State without more is not enough and that even knowledge of the said acquisition is also not enough. Counsel cited the case of DAKOUR vs.

LSDPC & ANOR (2003) FWLR (PT. 143) 133 AT 138 where this Court held thus:
“It is not knowledge of acquisition that is the issue it is service of the statutory notice of acquisition that is in issue.”

Counsel referred Court to the evidence of the DW4 who tendered a plan purporting to be part of the master plan of Imo State. Counsel contended that the DW4 is not a surveyor and that he did not tender the master plan of Imo State wherein he extracted the plan tendered. Counsel argued that the plan he tendered did not fall into any of the schedules A, B and C of Edict No. 3 of 1976 and that he adduced no evidence of the precise lands that form or make up schedules A, B and C of Edict No. 3 of 1976. He contended that to be accepted the ipse-dixit evidence of the DW4 is not enough as it has to be by a Surveyor or Surveyor-General of Imo State who has custody of the master plan of Imo State. Counsel further argued that the Respondents failed to prove that the disputed land falls within Schedule A, B and C of Edict No. 3 of 1976; Counsel cited the cases of OGU vs. NWOHIA (2000) FWLR (PT. 6) 922 AT 925 926; ADENE vs.

DANTUNBU (1994) 2 NWLR (PT. 328) 509 AT 525.

It was also contended by Counsel that a party who asserts must prove and that the DW4’s evidence that the disputed land is part of the acquired land is mere speculation. He said that the DW4 must show from the law he relied upon, the land which was acquired as acquisition is a question of fact to be proved by evidence. Counsel contended that tendering of the plan and gazette of Edict Nos. 1 and 3 of 1976 is no proof of acquisition as Edicts Nos. 1 and 3 as earlier submitted by Counsel are pieces of illegality.

It was contended by Counsel that given the date when the purported acquisition vide Edict No. 3 of 1976 came up, the Constitution that was applicable was the 1963 Constitution (unsuspended and Unmodified Chapters/Sections). He said that Section 31 of 1963 Constitution as submitted is very clear. Learned Counsel brought to the attention of this Court the decision of Court in the case of REV. EUGENE IKE vs. CHIEF SAMUEL OBAJI in Suit HOW/329/200: (unreported) judgment delivered on 22nd November, 2007, by the High Court of Imo State which declared Edicts No. 1 and 3 of 1976 void. Counsel

submitted that there is only one High Court in Imo State and that the decision in HOW/329/2000; Rev. Ike vs. Chief Obaji was delivered before the present suit on appeal.

According to learned Counsel the Lower Court was referred to the considered decision of the High Court of Imo State on the issue, and rather than follow it, though persuasive, jettisoned same and sought umbrage under Decree 31 of 1975. It was submitted by Counsel that Edict No. 3 of 1976 having been declared void by a Court of competent jurisdiction and therefore dead cannot be resurrected in the circumstance the Lower Court did in this matter. He urged this Court to hold that the Lower Court erred on the side of law and fact by holding that the purported acquisition of the Appellants land was valid, when there was no compliance with Section 31 of the 1963 Constitution and Public Lands Acquisition Law Cap 105 of 1963 applicable to Imo State. He urged this Court to resolve the two issues in favour of the Appellants.

ISSUE THREE:
Whether the Appellants suit was statute barred.

?In opening his arguments on this issue, learned Counsel told Court that the suit on Appeal was

instituted in 2003. He referred Court to paragraphs 8 and 9 showing Appellant?s averment of details of how the Respondents unlawfully broke into the land of the Appellants, destroying their crops and farmlands, economic trees and also details of the trespassory acts of the Respondents. Counsel further told Court how the Appellants in their evidence stated how the bulldozers came on the land between the year 2002/2003 and destroyed their farms crops and economic trees.

According to learned Counsel, the 1st and 2nd Respondents did not deny entry by them with bulldozer and destruction of farm crops and economic trees of the Appellants but that their defense was that the land was acquired by Government of Imo State, and that the 1st and 2nd Respondents paid compensation to Umuoyo, Umuagwu and Umungada villages of Irete on 25/4/2002. Counsel said that 1st and 2nd Respondents also pleaded that after payment of traditional rites to Irete landowners, the land was handed over to them on 23/1/2002. See paragraphs 14 and 15 of their defense. Pages 19 & 20 of the Records. On the part of the 3rd, 4th and 5th Respondents, Counsel told Court that their defense

to the trespassory acts is that the 1st and 2nd Respondents had taken physical possession and proceeded with physical development of the site; that they further stated that the land was REVOKED for overriding public interest and that the Appellants were served with notice of revocation.

It was contended by Counsel that by paragraph 7(b) of their defense they contended that the acquisition was by revocation under the Land Use Act 1978 and no longer Edict No. 3 of 1976. But Counsel argued that Edict Nos. 1 and 3 of the 1976 has no provision for notice of revocation. Counsel also submitted that in construing the provisions of limitation law as regards land, what is needed for the limitation period to commence is absence of possession by the Appellants and possession acquired by the Respondents. He emphasized that the right of action accrues once possession has been lost to the other party.

It was further argued that the evidence of the Appellants which was not challenged was that the land has been in their possession from time immemorial until about the year 2003 when the 1st and 2nd Respondents forcefully and unlawfully entered the land which the 1st

and 2nd Respondents admitted entering in 2003. See paragraphs 12 and 13 of their Statement of Defense. It was contended by Counsel that the Lower Court had alluded and came to the wrong conclusion that the suit filed by the Appellants was statute barred because the purported acquisition was made in 1976 by virtue of Section 3 of Edict No. 1 of 1976 as amended by Edict No. 3 of 1976. See pages 205-206 of the Records.

It was the submission of Counsel that the Limitation Law or Edict of 1994 is not applicable in the circumstance. He told Court that it has been argued under issues 1 and 2 of this brief that no acquisition properly called took place and Edict No. 1 of 1976 as amended by Edict No. 3 of 1976 is void. He said that the Appellants in their claim at the Lower Court sought for a declaration that the purported acquisition by the 3rd, 4th and 5th Respondents of the disputed land vide Edict Nos. 1 and 3 of 1976 is null and void and of no effect and that by this relief, the Appellants are saying that the purported acquisition is null and void abinitio. Counsel said that in IBAFON COY LTD vs. NIGERIA PORTS PLCS (2000) 8 NWLR (PT. 667) 86 AT 102;

the Court of Appeal faced with a similar question on statute bar of an action over acquisition, held that ?
?Where as in the instant case, the acquisition of land by the acquiring authority is void, the question as to whether or not an arising there from is statute barred becomes non-sequitur

Counsel said that when an act is void it is void from the start and that nothing can be built upon it. See MACFOY vs. UAC (1961) 3 WLR 1405.
In this connection Counsel further contended that the act of granting a statutory certificate of occupancy in 1995 to the 1st Respondent vide or on the ground of the purported acquisition is also void. He said that between 1995 and 2003 is a period of 8 years but that the unlawful entry into the disputed land was in 2003 and the suit was filed in the same year against the Respondents was therefore not statute barred. Counsel further argued that without the purported acquisition there would be nothing to assign or grant to the 1st Respondent for its use by the Government and since the acquisition of the land suffers some illegality any subsequent act predicated on an illegally acquired

land is null and void.

ISSUE FOUR;
Whether Exhibit “K” was in law proof of the area acquired having regard to Schedules A, B and C of Edict No. 3 of 1976 (Ground Four).

It was contended by learned Counsel that the evidence of DW4 as regards the identity of the land to which Exhibit “K” relates is clearly inadmissible under Sections 76 and 132(1) of the Evidence Act as amended. He said that DW4 under cross-examination at page 137 of the Record stated that Exhibit “K” was not prepared by his Ministry but by a private Surveyor but that his Ministry has the approved plan of the area in question and that it is in the custody of the Surveyor-General, Imo State and Town Planning Department of the Ministry. Counsel said that the witness posited that Exhibit “K” is not a master plan of the area purportedly acquired but portion of land existing within the master plan and finally agreed he was not a Surveyor by profession.

It was submitted by Counsel that Exhibit “K” should not have been admitted and that having been wrongly admitted should have been expunged from the records. He said that

what DW4 should have tendered is the master plan showing lands purportedly acquired vide Schedules A, B and C of Edict Nos. 1 and 3 of 1976. Counsel contended that DW4 cannot keep the master plan in his office or Ministry, and deprive the Court the benefit of seeing the master plan to which Exhibit ?K? relates. It was argued by Counsel that there was no admissible evidence upon which the finding could be made that the land now in dispute is part of the land in Exhibit ?K? or ?E? as the evidence of DW4 that Exhibit ?K? relates to or is a portion of land within the master plan ought to have been disregarded as lacking in credence. He contended that there is nothing in Exhibit ?K? that could lead any reasonable man to the conclusion that the Lower Court reached. See OKPALUGO vs. ADESHOYE (1996) 10 NWLR (PT. 476) 77 AT 102 ? 103.

As far as Counsel is concerned the burden was on the 3rd, 4th and 5th Respondents to prove that the land now in dispute is the same as, or forms part of the land covered by Schedules A, B, C of Edict Nos. 1 and 3 of 1976, by producing the master plan, and this

burden they failed to discharge. Counsel in this connection cited the cases of TUKURU vs. SABI (2005) 3 NWLR (PT. 913) 544 at 562; AREMU vs. ADETORO (2007) 16 NWLR (PT. 1060) 244 AT 261 ? 262 it was held?
?This is a case where a Court of Law can invoke Section 149(d) of the Evidence Act, that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it.?

See ONUWAJE vs. OGBEIDE (1991) 3 NWLR (PT. 178) 147; OGWURU vs. CO-OPERATIVE BANK OF EASTERN NIGERIA LTD (1994) 8 NWLR (PT. 365) 685.

It was finally argued by Counsel on the issue that Exhibit ?E? has no relationship with Schedules A, B, C of Edict Nos. 1 and 3 of 1976 and that the Lower Court was wrong to have relied on Exhibits ?K? and ?E? as evidence of identification of the land acquired. It was submitted by Counsel that the Respondents failed to show or prove the area purportedly acquired by them. He urged the Court to hold that this is a clear case as to the condition and circumstances in which a presumption of fact under Section 149(d) now 167(d) of the Evidence Act, 2011 can

be drawn against the Respondents.

ISSUE FIVE:
Was the Lower Court correct in holding that Appellants were paid compensation when there was overwhelming evidence to the contrary. (Ground Five).

It was contended by learned Appellants? Counsel that no monetary compensation as required by the provisions of Section 31 of the 1963 Constitution was paid to them. He reminded Court that the Appellants are members of Umugboaku family or kindred of Umuoyo Irete and also the fact that there are three (3) kindred in Umuoyo to wit: Umugboaku; Umuagwu and Umunma. He said that the PW1 and PW2 in their evidence unequivocally stated that no compensation was paid to Umugboaku kindred over the disputed land as shown in Exhibit ?A?. Counsel told Court that the Respondents in showing or proof of payment of compensation tendered Exhibit ?F?. Exhibit ?P? was tendered to show the persons and family that got compensation. Learned Counsel referred Court to the findings of the Lower Court on the issue, which he described as perverse;
?From the totality of the evidence before the Court, the Claimants through PW1 and

PW2 lied to the Court when they told the Court that no compensation was paid over the land-in-dispute. The Court therefore holds that compensation was paid

It was contended by learned Counsel that this finding is perverse and contrary to the evidence of DW2 and DW3. He said the DW2, Benjamin Nzewuroba at page 124 ? 126 of the Records stated under cross-examination by Claimant?s Counsel;
(i) The government did not serve us with any notice of acquisition.
(ii) I know the lands called Okohia Onuwaokpokoro and Nwanru.
(iii) The Plaintiffs farm on theirs while I farm on my own.
(iv) I do not farm on the Plaintiffs Nwanru land.
(v) I donated my own land to the government.
(vi) Oha Martin Ihugba is not from the Plaintiffs kindred.
(vii) John Ohale is not from the Plaintiffs kindred.
(viii) Nobody from the Plaintiffs Kindred signed Exhibit ?F?.
(ix) The Plaintiffs were not there when Exhibit ?F? was signed.
(x) Michael Uma, Azuama Aginwa, Christopher Ugwuegbulem are not from the Plaintiffs kindred.

?It was further contended by Counsel that from the

evidence of DW2, it is clear that the Appellants had nothing to do with Exhibits D, F, O, P and Q. In Exhibit P, Counsel said that the signatories as stated by DW2 are not from the Appellants kindred. And that from DW3 Pius Ogbonna of Umuagwu Irete, Counsel said that he stated at page 129 of the Records under cross-examination that he was not served any notice of acquisition and that even though he signed Exhibit F, it was signed by him and DW2 for his own land. Aside from the evidence of these two witnesses, i.e., DW2 and DW3, coming from the natives and which vividly confirmed evidence of PW1 and PW2 on the issue of payment of compensation, Counsel said that no other person gave evidence saying that Appellants were paid compensation. He added that the documents tendered speak for themselves.

It was the submission of Counsel that documentary evidence is the hanger to assess oral evidence. He said that the Appellants are therefore at a loss as to how the Lower Court arrived on the fact that they were paid compensation when the documents and evidence of DW2 and DW3 stated otherwise. Counsel invited this Court as an Appellate

Court to intervene the Lower Court’s findings and conclusion having been demonstrated to be perverse in the circumstances. Counsel cited the case of OLODO vs. JOSIAH (2011) ALL FWLR (PT. 573) 1897 at 1924 1925. MOGAJI vs. ODOFIN (1978) 4 SC 91; WOLUCHEM vs. GUDI (1981) 5 SC 291; ODOFIN vs. AYOOLA (1984) 11 SC 72; OYEDIRAN vs. OKE (1997) 11 NWLR (PT. 530) 606. He finally contended that in the instant case, the conclusions of the trial Court from the accepted evidence of DW2 and DW3 as well as Exhibit O, P, and Q are perverse and erroneous. He said that the trial Court was of the view that DW2 and DW3 were from different kindred and villages of Irete and had no interest in the parcel of land-in-dispute as shown in Exhibit A.

ISSUES SIX & SEVEN:
6. Whether the Lower Court was right in holding that Law No. 5 of 2004 (Imo State University Law) validated the purported acquisition of the Appellants land.
7. Whether the Lower Court was right by holding that the appearance of Professor O. E. Nwebo and Dr. U. U. Chukwumaeze for the 1st and 2nd Respondents in this suit, they being Public Officers (Lecturers in the

University) did not offend the provisions of 1999 Constitution of the Federation of Nigeria.

Learned Counsel referred this Court to the learned trial Court?s findings at page 207 of the printed records with respect to the Claimants relief (b) when the Court said that the presence of Section 19(a) of Law No. 5 of 2004, served to make the acquisition by the 3rd to 5th Defendants, one that was properly and validly done. In response Counsel contended that the Respondents? case was not that the land was acquired for overriding public purpose and that for this reason, Section 19(a) of Law No. 5 of 2004, Imo State is not applicable vide acquisition of land in Imo State. Rather, Counsel argued that the operational law on acquisition of land is the Land Use Act 1978. He further contended that for Imo State Government to allocate the Appellants land to the 1st and 2nd Respondents for any purpose whatsoever, must comply with provisions of Sections 28 and 44 of the Land Use Act, 1978. He also added that the grant of statutory right of occupancy to the 1st Respondent by the 3rd, 4th and 5th Respondents is invalid.

?It was argued by Counsel that it was

erroneous for the Lower Court to hold that the acquisition was proper by virtue of Section 19(a) of Imo State University Law No. 5 of 2004. He said that this law only stipulates that the University is authorized to own land or property in accordance with the law, which is a far cry from acquisition of citizens? land or property by virtue of Land Use Act and Section 44 of the 1999 Constitution of Nigeria. It was further argued by Counsel that as deemed holders of the right of occupancy of the land-in-dispute, the Appellants? interest remains intact especially where there had been no compliance with the provisions of the Land Use Act before the grant to the 1st Defendant. According to Counsel the grant becomes an exercise in futility; he cited the cases of JOSHUA OTO vs. ADEOJO (2003) 7 NWLR (PT. 820) 63; GUINNESS NIG. LTD vs. UDEANI (2000) 14 NWLR (PT. 678) 367; ADOLE vs. GWAR (2008) 8 SCM 18.

It was further argued by Counsel that the right of occupancy of the Appellants remains inviolable until the Governor acts and complies with conditions stipulated in Section 28. See ALHAJI DANTSOHO vs. ALHAJI MOHAMMED (2003) 6 NWLR (PT. 817) 457. He

contended that a certificate of occupancy is never associated with title as it is only prima facie evidence of title and that any person without title to a piece of land in respect of which the certificate of occupancy was issued acquires no interest or right which he did not have. Counsel further argued that where it is shown (as in the instant case) that another person had a better right to the grant, the Court will set aside the grant. See NGWUDO vs. GBERBO (1999) 9 NWLR (PT. 617) 71; REG. TRUSTEES OF THE APOSTOLIC CHURCH vs. OLOWOLENI (1990) 6 NWLR (PT. 158) 514.

?In respect of the appearance of Dr. C. C. Chukwumaeze, a law Lecturer at Imo State University and the law firm of Professor O. E. Nwebo, the Acting Vice-Chancellor under the auspices of their written address in the suit, Counsel submitted that the duo are Public Officers by virtue of 5th Schedule Part 1 of the 1999 Constitution of the Federal Republic of Nigeria. He said that Section 1 of the 5th Schedule of 1999 Constitution stipulates that a Public Officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities. Counsel further said

that Section 2(b) prohibits the participation or engagement in the management or running of any private business, profession or trade. See pages 66 of the Record. It was also submitted that by Section 2(b) of the 5th Schedule of the 1999 Constitution, Dr. C. C. Chukwumaeze cannot be seen to run the Chambers of Professor O. E. Nwebo another Public Officer. Counsel said that their acts or any purported acts by them is a contravention of the Constitutional provision in question and is invalid. In his further argument on the issue, Counsel said the written address by Dr. C. C. Chukwumaeze in furtherance of the running of O. E. Nwebo & Associates is unlawful, invalid and of no effect whatsoever.

?In tackling this Constitutional issue, Counsel told Court that the Lower Court relied on Section 24(1)(c) of Law No. 5 of 2004 which stipulates that the University may be represented in Court by a Legal Practitioner or firm of Legal Practitioners duly appointed by the University Council as their Solicitors. And that the Lower Court went further to hold that the Law No. 5 of 2004 allows the University to engage its employees to represent it in Court proceedings and

held that the objection is misconceived. Arising from this position, Counsel said that Lower Courts conclusions are begging the issue as the provisions of Law No. 5 of 2004 is not superior to the Constitution of Nigeria 1999. He readily cited the Supremacy Section of 1999 Constitution is on the issue, saying in the process that Law No. 5 of 2004 to its extent of contradicting or being inconsistent with Sections 1 and 2 of 5th Schedule part of 1999 Constitution is null and void. Counsel added that the issue in contention is not whether the University has powers to appoint its employees in writing to represent it in Court, but rather whether Dr. U. U. Chukwumaeze and Professor O. E. Nwebo being Lecturers in the University and Public Officers within the meaning can contrary to the provisions of the Constitution engage in the practice of running or managing law Chambers and representing the University in that capacity. He said that the Lower Court misconceived the import of the objection and what the two laws in contention portend. According to Counsel, Law No. 5 of 2004 is only alluding that anybody representing the University in Court must have a written

authority to that effect and that no such authority was tendered by Dr. C. C. Chukwumaeze or Professor O. E. Nwebo in Court. But that in the case of Section 2(b) of 5th Schedule Part 1 of 1999 Constitution, it is clear and requires no amplification. Counsel also said that the Lower Court went off tangent in equating or attaching superiority to the said Law No. 5 of 2004 over the Constitution.

ISSUE EIGHT:
Whether the Appellants were entitled to their claims in the suit

Appellants? Counsel contended that there are certain methods recognized by the Courts for acquiring title to land and that it is the duty of the Claimant (Appellants) to show how he or his predecessor-in-title has acquired title in one of the ways or methods, to the land-in-dispute ? that is root of title. He cited the case of PIARO vs. TENALO (1976) 12 SC 31; OGUNLEYE vs. ONI (1990) 2 NWLR (PT. 135) 745. According to Counsel the Appellants pleaded their root of title in paragraphs 4, 5, 6 and 7 of their Statement of Claim. He said in addition, that the facts of traditional evidence of land deforested by Ogboaku the ancestor of the Appellants and after him how the

land devolved on his four sons and down the line to the Appellants were neither traversed nor challenged by the Respondents in their respective defenses. Counsel said that the defense of the Respondents centered on a purported act of 1976 and not of time immemorial; that the Respondents did not deny that the Appellants are in the original owners of the land-in-dispute. Counsel further disclosed that the Respondents failed to join issues with the Appellants on deforestation of the land by their ancestor and all acts of possession/ownership from then until the disturbance of their possession in 2003. He cited the case of TAIWO vs. ADEGBORO (2011) 5 KINGS LAW REPORT 1489 AT 1505 where the Supreme Court per RHODES-VIVOUR, JSC had this to say stated thus:
“It has been stated in a plethora of cases that on the exchange of pleadings by the parties, a material fact is affirmed by one of the parties but denied by the other, the question thus raised between the parties is an issue of fact. To raise issue of fact there must be proper traverse. That is traverse must be made, either by denial or by necessary implication. See LEWIS & PEAT (NRI) LTD

vs. AKHIMIEN (1976) 1 ALL NLR (PT. 1) 469.”

Learned Counsel also contended that where it is averred in the statement of claim that the Appellants’ ancestor deforested the land-in-dispute and exercised acts of ownership and at his death the land devolved unto his sons and thereafter to his descendants as pleaded in paragraphs 4, 5, 6 and 7 of the statement of claim and the Respondents averred that the Appellants will be put to the strictest proof is not good enough. Counsel said that it is bad and bare denial which would not hold water. He said that the Respondents are expected to show by their pleadings what they consider the true position as regards the traditional history pleaded by the Claimants. See the cases of TAIWO vs. ADEGBORO Supra at 1505; OBINECHE vs. AKUSOBI (2010) 6 KINGS LR 2057 AT 2067.

In the instant case, Counsel contended that there is no co-relation between the two sets of facts i.e. issue of traditional history which was not denied, and issue of purported acquisition put up as a defense. He said that the Appellants pleaded issue of non-acquisition of their land separately and that a consideration of the

Respondents’ defense shows they traversed issue of acquisition and avoided the issue of traditional history of the land. Counsel cited the cases of ADIKE vs. OBIARERI (2004) 4 NWLR (PT.758) 537; EKE vs. OKWARANYA (2001) 12 NWLR (PT. 726) 181; OKAGBUE vs. ROMAINE (1982) 5 SC 133. According to Counsel the Respondents thus did not specifically deny that the Appellants are the owners of the land purportedly allocated to the 1st and 2nd Respondents. Counsel said that the law is that declaratory reliefs are not proved by admissions in the defense. And that for this reason the Appellants must adduce evidence on their claims if they must succeed even though the evidence of traditional history tendered by PW1 was not challenged.

It was therefore contended by Counsel the onus lies on the Appellants to satisfy the Court that they are entitled to the declaration sought by any of the five ways of establishing ownership to land in Nigeria. Counsel said that this was done in the instant case by the Appellants whose evidence on traditional history was cogent and supports their claim. See BALOGUN vs. AKANJI (2005) ALL FWLR (PT. 262) 405 AT

419. He said that the evidence of the PW1 and PW2 on traditional evidence remained un-contradicted and that by the evidence of PW1, they established the founding of the land by their ancestor and the particulars of intervening owners through whom the Appellants claim. Counsel cited the cases of EZEOKONKWO vs. OKEKE (2002) 5 SC (PT. 1) 44 AT 52-53; IGE vs. FAGBOHUN (2002) FWLR (PT. 127) 1140 AT 1152.

Counsel submitted that the Lower Court did not give any consideration to this issue but only glossed over it; that the Lower Court was only interested in considering whether there was acquisition; whether the Court had jurisdiction to entertain any question on Edict Nos. 1 and 3 of 1976 and whether the suit was caught by statute of limitation of 1994. It was further submitted by Counsel that this was a miscarriage of justice especially as its findings on the aforesaid issues were utterly perverse. Learned Counsel said that the Court of Appeal is in a position to evaluate the evidence on the issue of traditional history of the Appellants vis-a-viz other issues raised by the Appellants in coming to a just decision in this matter. Counsel referred Court

to Section 15 of the Court of Appeal Act, 2004.

Learned Counsel also told Court that the 1st and 2nd Respondents relied heavily on the purported allocation and subsequent statutory certificate of occupancy issued in their favour by the Imo State Government who made the grant to them and who had no title in the land-in-dispute and none to grant in the circumstances. Counsel cited the case UCHE vs. EKE (1998) 9 NWLR (PT. 564) 24 AT 35; where the Supreme Court per IGUH, JSC said;
In the first place, it has been stressed times without number that it would be wrong to assume that all persons who resorts in a grant as a method of proving his title to land needs is simply to produce his deed of title and rest his case thereon. Without doubt the mere tendering of such documents of title may be sufficient to prove such grant where the title of the grantor to such land is either admitted or not in dispute. Where however, as in the present case, an issue has been seriously raised as to the title of such a grantor to the land-in-dispute the origin or root of title of such grantor mist not only be clearly averred in the pleadings, it must also be proved by

evidence.”

See also IGE vs. FAGBOHUN (2002) FWLR (PT. 127) 1140 AT 1160-1161; AKINRINOLA vs. AKINTEWE (2003) FWLR (PT. 160) 1602 AT 1629, where the Learned Jurist in these cases not only agreed with decision in UCHE vs. EKE (Supra).

It was the contention of learned Appellants’ Counsel that the 1st and 2nd Respondents did not prove and satisfy the Court on a preponderance of evidence, the validity of the title of their grantor and how their grantor acquired it. He said that the law is clear on the effect of illegal acquisition on subsequent acts thereon by the acquiring authority and that where acquisition of a particular piece or parcel of land by the Government is illegal, abinitio subsequent acts predicated on the illegally acquired land is null and void and the application of the maxim; Nemo dat quod non habet. It was also argued by Counsel that since the acquisition in this case is null and void then the interest of the 1st and 2nd Respondents in a void acquisition is also void and that no parcel of land passed to the 1st and 2nd Respondents from Imo State Government, the 3rd, 4th and 5th Respondents. See the case of

IBAFON CO. LTD .V Nigeria Ports Plc (supra) at page 100. The 1st and 2nd Respondents did not and never show that they had better title and right to possession of the Appellants which was disturbed. See also UGORJI vs. ONUKOGU (2005) ALL FWLR (PT. 271) 76.

Counsel also contended that the Respondents failed to show they had better title to the land than the Appellants; that the 1st and 2nd Respondents failed to prove that the 3rd, 4th and 5th Respondents are owners of the land or that the radical title reside in them. The allocation, therefore made to the 1st and 2nd Respondents Counsel argument hang in the air. See MOGAJI vs. CADBURY NIG. LTD (1985) 2 NWLR (PT. 7) 393 AT 431; ELIAS vs. OMOBARE (198) 5 SC 25 AT 58; OGUNLEYE vs. ONI (1990) 2 NWLR (PT. 135) 745 AT 782-783. For this reason, Counsel argued that the Appellants are entitled to their claim also for damages i.e. N5 Million and perpetual injunction against the Respondents. The land which the Respondents admitted entering is as shown in Exhibit ‘A’ the identity of which is not in dispute. Counsel also said that the pleadings of the parties has shown that the Appellants have been in possession until

the year 2003 when the 1st and 2nd Respondents unlawful entered the land, bulldozed their economic crops and trees. He said that the Appellants have shown better title to the land than the Respondents have. Counsel contended that mere exclusive possession is enough for the injunctive relief of damages for trespass to land and trespass is not about whether there were damages done to the land but about entry without the consent of the owner. He cited the case of SHOTAYO-ARO vs. BABAYEMI (2004) ALL FWLR (PT. 204) 61 AT 73. By the authorities of AMAKOR vs. OBIEFUNA (1974) 1 ALL NLR (PT. 1) 114; AROMIRE vs. AWOYEMI (1972) ALL NLR (PT. 1) 101; Counsel contended that where a Court is faced with a situation where a piece of evidence remained unchallenged and uncontroverted, and the opposite party had the opportunity to deflate or challenge the piece of evidence but failed to do so, a Court faced with such situation can hold the piece of evidence to be established. See also the case of HADDAD vs. ODULAJA (1973) 11 SC 35; NIGERIAN MARITME SERVICES LTD vs. AFOLABI (1978) 2 SC 79 AT 81; OMOREGBU vs. LAWANI (1980) 3-4 SC 117. Learned Counsel urged the Court to

allow the Appeal and set aside the decision of the Lower Court.

ARGUMENTS OF LEARNED 1st and 2nd RESPONDENTS? COUNSEL:
ISSUE ONE:
Whether the Court below was right to have held that the Government of Imo State acquired the land in dispute and that this suit is statute barred by virtue of the Limitation Law applicable in Imo State?

The Contention of learned Counsel is that the question whether or not the Government of Imo State acquired the land in dispute is purely academic by virtue of the pleadings of the parties and evidence adduced on record as what is admitted in law usually needs no further proof. Counsel said that the Appellants in paragraph 12 of their statement of claim pleaded the acquisition of the land in dispute by the Government of Imo State but stated that the said acquisition is void and illegal. But that under cross-examination the two witnesses called by the Appellants testified that the Government acquired the
land in dispute in 1976. Counsel referred Court to the evidence of the PW1 at pages 107-108 of the records on this issue. See also pages 110-111 of the record.

?Counsel also told Court that

the Respondents on their own tendered Exhibits H and J which are Edict Nos. 1 and 3 of 1976 by which the Imo State Government acquired the land in dispute. It was therefore contended that the power of Government to acquire land for public interest is constitutionally guaranteed. He cited the case of ADOLE vs. GWAR (2008) 11 NWLR (PT. 1099) 562 where the Court stated that the right to acquire and own land in any part of the country is constitutionally guaranteed. It was submitted by Counsel that the parcel of land was indeed acquired by Government in 1976.

However, in reaction to the contention of the Appellants that the said acquisition is invalid by reason of non-compliance with the provisions of Section 5, 8 and 9 the Public Lands Acquisition Law of Eastern Nigeria applicable to Imo State in that the Government did not follow/comply with the strict procedural requirements stipulated therein; and that Exhibits H and J are invalid and inconsistent with the unsuspended part of the 1963 Constitution which was the Constitution in force at the relevant time together with Decree No. 31 of 1975, Counsel submitted that Exhibits H and J are inconsistent with

the unsuspended part of the 1963 Constitution and therefore void. Counsel referred Court to the evidence elicited from the DW4 by the Appellants under cross-examination on 9/2/2010 at pages 136 – 137 of records, where he said that the requisite notice of acquisition was served on the Appellants but would not remember the manner of service since the acquisition was done a long time ago.

However, learned Counsel argued that what was in force at the time of the acquisition in 1976 was the Decree No. 31 of 1975 which indeed was the grund-norm at the time and which provides in Section 4 as follows;
?No question as to the validity of this or any other Decree or of any Edict shall be entertained by any Court of law in Nigeria.?

?It was contended by learned Counsel that the validity of the Edict Nos. 1 and 3 cannot be questioned and that the trial Court was right to have held so and also that the Government of Imo State duly acquired the land in dispute in 1976. Another point which Counsel brought to the attention of Court is that the parcel of land is dispute is just a portion out of the entire lands acquired by the Government in 1976.

He said that of the several land owners of the acquired area only the Appellants are disputing the acquisition and payment of compensation to them, while other members of the Umuoyo village and the Umuagwu and Umungada villages are not disputing theirs.

On the issue of whether the suit is statute barred it is the submission of the 1st and 2nd Respondents Counsel that the suit is statute barred by virtue of Section 3 of the Limitation Law of Imo State which provides that commencement of any suit in land matter shall be commenced within 10 years from the date of the accrual of cause of action. In this case, Counsel said that the Respondents pleaded that the Government acquired the land in dispute in 1976 and that the Appellants denied the acquisition but on another breath pleaded that the acquisition was illegal and void. See pages 6 and 7 of the record of Appeal and as well as page 17. Counsel said that the Respondents duly gave evidence of the said acquisition in 1976 and the Appellants themselves corroborated the said evidence of acquisition during their cross-examination. The relevant portions of that evidence of acquisition coming from the Appellants

themselves through the evidence of the PW1 as aforesaid; See pages 107 ? 108 of the record. From the foregoing, Counsel argued that the above evidence clearly shows that the Appellant was aware of the acquisition in 1976. He cited the case of AJAYI vs. ADEBIYI (2012) 11 NWLR (PT. 1310) 137 where the Supreme Court held thus:
?Under the Public Lands Acquisition Law, a cause of action or right of action accrues as from the date the Government acquisition is published in a Government gazette.?

Counsel also referred Court to the Supreme Court?s interpretation Section 16(2) of the Lagos State Limitation Law in AJAYI?S case (supra) held as follows:
?the relevant Section emphasized that an action for recovery of land shall not be brought after the expiration of 12 years from the date on which the right of action accrued to the persons bringing it or if it accrued to some person through whom he claims to that person. An action which is not brought within the prescribed period of twelve years offends the provisions of Section 16(2) of the Limitation Law?

?In the instant case, from the date the

cause of action accrued, which was the date the land was acquired by the Lagos State Government and published in the gazette on the 16th day of April, 1974, and the date the action was filed on the 13th day of July, 1991 was 17 years. Thus the Respondents action was consequently statute barred having been caught by the statute of limitation.

As far as Counsel was concerned, the Supreme Court?s pronouncements on the issue seemed to have summed it all up on the issue. He said that the Imo State Government published the acquisition of the land in dispute in Edict Nos. 1 and 3 of 1976 on the 18th day of February, 1976 and 13th day of May, 1976 respectively and that the evidence of PW1 and PW2 shows that they were aware of the said acquisition. He further said that the writ of summons in this suit was filed on the 19th day of September, 2003. That is 27 years after the accrued cause of action.

On the effect of a suit that is statute barred, Counsel said that such an action had elapsed and the right to commence the action would have been extinguished by law. He cited the case of EMIATOR vs. NIGERIA ARMY (1999) 12 NWLR (PT. 631) 362, EKEOGU vs.

ALIRI (1991) 3 NWLR (PT. 179) 258. He urged that this issue be decided in favour of the Respondents and against the Appellants.

ISSUE TWO;
Whether from the evidence on record the Court below was right when it held that the Appellants were paid compensation for Government acquisition of the land in dispute?

Learned Counsel submitted that the learned trial judge was right to have held that the Appellants were paid compensation over the parcel of land in dispute as this is borne out of the evidence on record and the pleadings of the parties. Counsel said that the Respondents pleaded that on the 25/02/2002 the 1st Respondent through the Hon. Commissioner for Lands, Survey and Urban Planning paid the sum of Two Million, Thirty Four Thousand, Nine Hundred and Twenty Three Naira only (N2,034,923.00) to the land owners of Irete Community duly represented by their Attorney Messrs. Okereke & Associates. In addition, he said, that the Respondents duly pleaded that the Appellants? village was represented by Messrs. Ben Nzeobi Mbamanyeukwu, Amam Chibundu Christopher and Sabinus Duru. See pages 17 and 18 of the record.

?Counsel explained

that the representation is because there are three villages that own land in the area acquired by the government so each of the villages sent representatives and were duly paid compensation and they withdrew from the land dispute. He also said that when the Respondents performed the traditional rites of bush entry, it was paid for in cash to the tune of N175,000.00 (One Hundred and Seventy Five Thousand Naira only). In addition, he also said that the Appellants were duly represented by Messrs. Christopher Ugwuegbulem, Michael Umah, Azuoma Aginwa and Christopher Onumonu and that later on Christopher Ugwuegbulem collected another N50,000.00 for the Appellant for the bush entry of the land. See the evidence of the DW1, DW2 and DW3 on this issue. See Exhibit F.

It was contended by the Counsel that the Appellants strangely abandoned their case that the land is a communal land and gave evidence that no member of their family received any compensation and that the people mentioned in Exhibit F are not from the Appellants family. See page 107-108 as well as the cross examination of DW1 from pages 118-121 of the record. Furthermore, Counsel argued

that the Appellant pleaded that the land is a communal land and that they gave evidence to the effect that the areas acquired are owned by three (3) villages whose representatives were duly present when compensation was paid.

Specifically, Counsel mentioned the Appellants? village Umuoyo in this connection. It was contended by Counsel that the case of the Appellants is that no member of their family received any compensation is not borne out of their pleadings. Appellants are bound by their pleadings and evidence on record. Counsel submitted that where the evidence of a party is contrary to his pleadings the cross examination of the DW1 from pages 118 ? 121 of the record the Appellants, such evidence goes to no issue and ought to be expunged. See AUTA vs. IBE (2003) 13 NWLR (PT. 837) 247 on the treatment of evidence that is at variance with the pleadings. It was argued by Counsel that the trial Court had a duty to limit and to tie its decision to the cases pleaded and proved by the parties. Counsel cited the cases AHAYA FAROUK CHEDI vs. AG FEDERATION (2006) 13 NWLR (PT. 997) 308 AT 325 E ? H; U. T. B. vs. OZOEMENA (2007) 3 NWLR (PT.

1022) 448 AT 471 E-F.

On the question of whether the parcel of land in dispute is an individual or Communal land, learned Counsel posited that there was evidence in support of the pleading that the land is Communal land. And that this explains why the Appellants were paid compensation through their village representatives because since it was land owned by the community.

Learned Counsel queried whether the Appellants could be allowed to complain at this time, when at the time payment to their representatives of Umuoyo were made, they did not complain? He contended that they should not be allowed to deny the existence of the payment of compensation to them when from their conduct they are deemed to have encouraged the said payments to their representatives by the Respondents? According to Counsel, Section 169 of the Evidence Act provides for the principles of estoppel including by conduct to the effect that when one person has, by his declaration, acts or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any

proceeding between himself and such person or such person?s representatives in interest to deny the truth of that thing. See LAWAL vs. UNION BANK OF NIGERIA (1995) 21 SCNJ 132, SOSANYA vs. ONADEKO (2000) 11 NWLR (PT. 677) 34.

It was submitted that the Appellants are bound by the compensation paid to the Umuoyo village through their representatives and that the learned trial Judge was right when it held that the Appellants were paid compensation for acquisition of the land in dispute. Counsel urged the Court to decide this issue in favour of the Appellant.

ISSUE THREE;
Whether the Court below was right to have held that the appearance of Prof. O. E. Nwaebo and Dr. U. U. Chukwumaeze (now Prof. U. U. Chukwumaeze) did not offend the provisions of the 1999 Constitution as amended?

?It was submitted by Counsel that the appearance of Prof. O. E. Nwaebo and Dr. U. U. Chukwumaeze of the Faculty of Law Imo State University for the Respondents was proper in law and that the processes also filed by them are good and competent same not affected by any disability at all. The reason Counsel said is that the question of whether or not a law

lecturer in a public institution may engage in any private practice under the 1999 Constitution, has not been settled by the repeal of Decree No. 34 of 1984 and the 1992 Exemption Order by Decree No. 63 of 1999. Counsel said that the answer to the question still depends on the proper construction of Paragraph (2) (b), part 1 of the 5th Schedule to the 1999 Constitution as amended in order to determine the nature of prohibition from private practice which a law lecturer in a public institution suffers. Learned Counsel reproduced the said paragraph 2(b) part 1 of the 5th Schedule to the 1999 for the avoidance of doubt as follow;
“a public officer shall not engage or participate in the management or running of any private business, profession or trade.”

He contended that a critical look at the above provision will reveal that it did not completely prohibit a public officer from engaging or continuing to engage in any private practice. Counsel argued that the 5th Schedule to the 1999 Constitution prohibits the engagement of a public officer in the management or running of a private business, trade or profession and that a literal

interpretation of that Section is that a public officer should not be involved in the management of a private business, trade or profession which will entail in the day to day running and management of a business. Counsel said that this point was not lost in the sight of the Supreme Court in the case of AHMED vs. AHMED (SC. 279/2012) Unreported where an application was made to strike out a notice of appeal filed by a Law Lecturer with the Nigerian Law School, Mr. Dabo. He said that the Supreme Court did not strike out the said notice of appeal as the issue whether a public servant (law lecturer in public university) has breached the provisions of the Code of Conduct, which makes it an issue for the Code Conduct Tribunal and not the regular Court. It was contended by Counsel that there is no evidence on record that the Respondents’ Counsel were involved in the running and management of any private law firm as there was no such evidence from the Appellants at the Lower Court.

However, in assuming that there was such evidence at the trial, Counsel submitted that it would still not make any difference following the Supreme Court’s pronouncements

in AHMED vs. AHMED (Supra) where the Court held thus:
“If I may repeat, the Code of Conduct Tribunal has been established with the exclusive jurisdiction to deal with all violations of contravening any of the provisions of the Code as per paragraph 15(1). This provision has expressly ousted the powers of the ordinary Courts in respect of such violations. The Tribunal to the exclusion of other Courts is also empowered to impose punishment”

Counsel further argued that the Supreme Court had earlier had taken similar view in 1995 in NWANKWO vs. NWANKWO . (1995) 5 NWLR (PT.394) 153 when it held thus:
“I only need to add that a breach by a public officer of any of the provisions of the Code of Conduct set out in the 5th Schedule to the Constitution of the Federal Republic of Nigeria, 1979 does not confer a civil right on any citizen for which he can sue it is the Code of Conduct Bureau and the Code of Conduct Tribunal set up under paragraph 15(1) and 17 of the said Schedule that have jurisdiction in the matter and not the High Court except where the conduct complained of is a criminal

offence.?

Counsel therefore urged the Court to resolve issue three (3) in favour of the Respondents.
ISSUE FOUR;
Whether the Court below was right to have dismissed the Appellants claims?

In arguing this issue, learned Counsel merely adopted all the arguments already set out in this Brief as if they are re-argued under this issue. He said that the Respondents proved their root of title to the land in dispute by virtue of Exhibits H and J. According to Counsel the acts of acquisition were carried out by Exhibits H and J which was effected in 1976. Counsel said that the suit coming up in 2003, some 27 years after the act complained of is statute barred. By way of recapitulation, Counsel said that the Appellants had successfully demonstrated in their brief that the Appellants suit is statute barred. Also, that the Government of Imo State acquired the land in dispute since 1976. Apart from this, that the Appellants were duly paid compensation for that acquisition. He urged this Court to dismiss this Appeal.

ARGUMENTS OF LEARNED 3rd, 4th & 5th RESPONDENTS? COUNSEL:
?It would be recalled that learned

Counsel for the 3rd to 5th Respondents had adopted the issues nominated by the Appellants’ Counsel and upon which he addressed Court as well and in the following manner;

ISSUES ONE & TWO;
Learned Counsel urged the Court to resolve issues one and two in the affirmative and hold that the disputed parcel of land was acquired by the Government of Imo State in 1976 and that the Lower Court was right in holding that by Decree No 31 of 1975, the validity of the said Decree No 32 of 1975 cannot be questioned or inquired into by any Court of law. Counsel referred Court to paragraph 5 of the Statement of defense of the 3rd to 5th Respondents as Defendants and submitted that the parcel of land in dispute was validly acquired in 1976 by the Government of Imo State. Counsel also referred to the deposition of the DW4 who at paragraph 6 of his deposition contained at pages 31 to 32 of the records who tendered the Plan No GTS/IMI4A/2004 which showed part of the area affected by Edict Nos. 1 and 3 of 1976. In addition to these Counsel also referred Court to Exhibits H and J contained at pages 158 to 163 of the records. He said that by Section 3 of

Exhibit H, the Government of Imo State compulsorily acquired the land and subject matter of this dispute.

It was therefore contended by Counsel that by virtue of this position the interest of the Appellants in the parcel of land in dispute was effectively extinguished. He further contended that by Section 3 of Edict No. 3 of 1976, the land in dispute became state land and has been under the management, control of the Government of Imo State. See also Section 3(1) of Edict No. 3 of 1976 in this regard by which certain categories of land in the State became vested in the Government of Imo State. It was argued by Counsel that by the provisions of this law, what the Appellants became entitled to from the Government of Imo State for compulsorily acquiring their land is compensation. Counsel referred Court to Sections 4 and 5 of Edict No 1 of 1976 in this connection.

On the interpretation of the provisions of Edict Nos. 1 and 3 of 1976, it was the argument of learned Counsel that since the words of the statute are not ambiguous the Court is bound to accord the words their ordinary meanings. Counsel cited the case of IBRAHIM vs. JUDICIAL COMMITTEE OF

KADUNA STATE (1988) 14 NWLR (PT. 584) 1 AT 7.

Learned Counsel referred Court to the testimonies of the PW1 and PW2 under cross examination when they admitted that they were aware that the parcels of land in dispute were acquired by the Government of Imo State in 1976. Counsel referred Court to page 110 of the records of proceedings. Learned Counsel urged the Court to resolve these issues against the Appellants.

ISSUE THREE;
Counsel drew attention of the Court to the fact that the Respondents pleaded in their Statements of Defense that the suit of the Appellant at the Lower Court was statute barred. He referred specifically to paragraphs 8(a) of the 3rd to 5th Respondents’ pleading at page 25 of the records and to paragraphs 36-38 of the deposition of the DW4 on the issue. Counsel further disclosed that the PW1, while under cross examination admitted that the parcel of land was acquired in 1976, with the commencement of the suit in 2003, it means that it has taken the Appellants as Claimants the period of 27 years before bringing this action to Court. He argued that it does not lie in the mouth of the Claimants to say that the parcel of

land in dispute was acquired in 2002/2003. Counsel also referred Court to Section 3 of the Limitation Edict of Imo State 1994 and buttressed his arguments with the answer given by the PW1 under cross examination when he said;
“As at 1976 I was at home in Irete I know that that was the year Imo State was created. The subject matter in dispute was acquired by Imo State Government pursuant to the creation of Imo State. I am aware of that.”

Arising from this position learned Counsel referred Court to the case of AKIBU & ORS vs. AZEEZ & ORS 13 NSCQR 199 on the Courts interpretation of Section 16 of the Limitation Law of Lagos which is in pari material Section 3 of the Imo State Limitation Edict, 1994. As far as Counsel was concerned it is immaterial whether the Plaintiffs are aware or not that their land, subject matter in dispute has been acquired by the Government of Imo State in 1976 or not. Counsel found the case of AKIBU vs. AZEEZ (Supra) useful in this regard when the Supreme Court had this to say on the subject at pages 218 -219 of the report;
“On a cumulative reading of the entire provisions of the Limitation Law

and in particular, Sections 16, 17, 19 and 21 thereof, knowledge on the part of the Plaintiff is a not a condition precedent. The knowledge of the Plaintiff is immaterial. The words of the Limitation Law of Lagos are clear and unambiguous and therefore must be accorded their ordinary meaning.”

Learned Counsel finally on this issue urged the Court to resolve this issue against the Appellant and to hold that the Appellants’ claim is statute barred.

ISSUE FOUR;
It was the contention of Counsel that the issue of non-identification of the parcel of land in dispute does not arise. Counsel referred Court to paragraph 5(b) of the Statement of defense of the 3rd to 5th Respondents as defendants, wherein the 3rd to 5th defendants pleaded clearly the identity of the parcel of land in dispute. He referred Court to page 23 of the records and also to the deposition of the DW4 as contained at page 32 of the records on the issue. According to Counsel the deposition of the DW4 at paragraph 6 was neither contradicted nor challenged by the Appellants under cross examination. Counsel said that a party who wished to challenge a testimony of a

witness or does not wish to accept same, must do so during cross examination and that failure to do so means he has accepted them as the truth.

In this connection, Counsel told Court how Exhibit K was tendered without any objection on the part of the Appellants. He said that the position of the law is that a party has to succeed on the strength of his case and not on the weakness of the defense. Counsel cited the case of YUSUF vs. ADEGOKE & ODETUNDE 30 NSCQR (PT.1) 269 AT 319-320 on the issue. It was therefore submitted by Counsel that the learned trial Court was right in relying on the admitted Exhibit K in dismissing the case of the Claimants. He urged the Court to resolve this issue against the Appellants.

ISSUE FIVE;
On the issue of whether the Appellants were paid compensation or not, Counsel urged the Court to hold that the Appellants were duly paid compensation over the acquired parcel of land as there was overwhelming evidence to that effect. Counsel referred Court to the pleadings of the 3rd to 5th Respondents precisely paragraphs 5(f) & (i) as contained at page 24 of the printed records. Learned Counsel also referred to

paragraphs 16, 17, 18 and 19 of the deposition of the DW4 as considered as pages 32-33 of the records. As it relates to this issue, Counsel also referred Court to the testimonies of the DW1 at page 116 of the records on the issue. Apart from these Counsel referred to the testimony of the DW3 at page 128 of the records who said;
?The defendants paid us compensation. I received the compensation on behalf of Umuagwu kindred?.

Based on the foregoing, learned Counsel submitted the learned trial Judge was right to have held at pages 206-207 that compensation was paid to the Appellants as Claimants. On the finding made by the learned trial judge on the issue, learned Counsel urged this Court not to disturb it. Counsel referred to the case of IDEOZU vs. OCHOMA 25 NSCQR 451 AT 461; SALIBA vs. YASSIN 9 NSCQR 179 AT 194, and submitted that the Appellants having received compensation from the Respondents as Defendants were estopped from claiming otherwise. He referred once again to the case of NSIRIM vs. NSIRIM 9 NSCQR 198 AT 212. Counsel said that the Appellants as Claimants received compensation from the Respondents through their lawful Attorney

Okereke & Associates and signed and collected money for traditional rites and cannot be allowed to say they never collected such compensation. He urged the Court to resolve this issue against the Appellants.

ISSUES SIX & SEVEN;
The argument of learned Counsel is that following the acquisition of the parcel of land in dispute under the provisions of Edict Nos. 1 & 3 of 1976, the land became designated as State land within the meaning ascribed to it under the provisions of State Land Law Cap. 122 Laws of Eastern Nigeria, 1963 applicable to Imo State. Counsel said that by that law the Government of Imo State has the power to manage and regulate the use of State Land. Pursuant to the Land Use Act, Counsel contended that the State Governor granted a Statutory Certificate of Occupancy to the 1st and 2nd Respondents. Counsel referred Court to Section 5(1) of the Land Use Act, 1978 on this issue. It was further contended that in so far as the acquisition of the land subject matter in dispute under Edict Nos. 1 & 3 of 1976 cannot be faulted it follows that as at 1978 when the Land Use Act came into operation, the parcel of land in dispute

was already vested in the Government of Imo State. Counsel therefore argued that it was wrong for the Appellants as Claimants to contend that there was no compliance with the provisions of Section 28 and 44 of the Land Use Act, 1978.

On the appearance of the two defense Counsel, Professors O. C. Nwebo and U. U. Chukwumaeze at the Lower Court, learned Counsel told Court that the Lower Court was right in deciding that their appearance in Court did not offend the provision of the 1999 Constitution. He said that by the appearance of the two legal practitioners under Section 24 (1) of the Imo State (Restructuring of Imo State University) Law No 5 of 2004 cannot be adjudged wrong as the duo had the backing of the said law to represent the University as its Solicitors. This is even more so when their appearances in Court did not conflict with their duties and responsibilities to the University. Counsel referred to the case of FRN vs. SENATOR ADEWUNMI 30 NSCQR 237 on this issue. Counsel urged the Court resolve the issue against the Appellants.

ISSUE EIGHT;
It was the argument of learned Counsel that in all cases of declaration of title to land and

other civil matters the burden of proof lies on the Plaintiff to prove his case by credible evidence in line with his pleadings and his case collapse if he fails to do so. Counsel cited the case of SUARA YUSUF vs. ADEGOKE & ORS (Supra). According to Counsel the Appellants failed woefully to discharge the burden of proof placed on them. He said that the Appellants in their attempts to prove their case, called two (2) witnesses one of whom was the PW1, who under cross examination admitted that the parcel of land was acquired in 1976 by force.

Learned Counsel argued that the evidence of the PW1 apart from the fact that it was speculative as he could not say when asked which of the Claimants had land on the landed property, that it was also contradictory with his pleadings. Counsel cited the case of SUARA YUSUF vs. ADEGOKE & ORS (Supra) on inconsistency between pleadings and the presentation of evidence in Court. Counsel further drew attention to the fact that at page 110 of the records, the same witness under cross examination by Counsel to the 3rd to 5th Respondents, admitted that the disputed parcel of land was indeed acquired the Government of

Imo State pursuant to the creation of Imo State in 1976.

In the case of the PW2, his evidence was said not to have helped matters. Under cross examination, at page 113 he was said to have stated thus;
“I was in Court when PW1 testified. I heard when PW1 told the Court that his personal land is included in the land in dispute. It is not true because PW1’s personal land is not within the land in dispute but separate somewhere else.”

As expected learned Counsel made issues out of these contradictions which he says are material as they are contrary to the pleadings of the Appellants as Claimants who are aware that the land was acquired in 1976 by the Government of Imo State. In addition, from the showing of both the PW1 and PW2, Counsel contended that the Appellants failed to show with certainty the identity of the parcel of land in dispute. Still on the question of inconsistency, Counsel cited the case of SUBERU vs. ANOMNEZE (1994) 3 NACR 45. Learned Counsel finally urged the Court to dismiss this Appeal and affirm the decision of the Lower Court.

RESOLUTION OF APPEAL
There are several beautiful arguments in the

Appellants’ brief of argument even though characterized by an unnecessary prolongation in the arguments of the issues nominated due to the presence of avoidable repetitions on the part of learned Appellants’ Counsel. There is also what this Court considers a proliferation of the Grounds and issues nominated for the Court’s determination. A situation where only as few as four (4) or less issues will be sufficient to dispose of a matter but is made unnecessarily lengthy has never been commended to the best of my knowledge by the Apex Court. The noble Lord, EDOZIE, JSC (as he then was) was terse in his observations on the issue when he said in the case of IBRAHIM vs. OJOMO (2004) 4 NWLR (PT. 862) 89 as follows:
“Prolix or proliferation of issues is not ideal as it tends to obscure the core issues to be determined and tends to reduce the issues to trifles. Appeals are not won on large number or quantity of grounds of Appeal but on the quality of the content of the Grounds of Appeal and issues.”

As it therefore has to do with the instant Appeal, I see no reason why as less as four (4) issues or thereabout cannot adequately

dispose of this Appeal. It is axiomatic that the success or failure of an Appeal has nothing to do with the quantity of Grounds or issues nominated for the determination of the Appeal, but the quality of the issues nominated and the arguments marshaled in support of the few cogent and competent issues nominated. To this end, and in so far as it will not lead to injustice to either of the parties, an Appellate Court possesses the power to, and in the interest of Justice reject, modify or reframe any or all of the issues formulated by the parties after a careful consideration of the issues as set out in the briefs and Grounds of Appeal filed. This power of the Appellate Court cannot in the least be faulted as long as the reframed issues are predicated on the Grounds of Appeal already filed. See the case of OGBUNYINYA & ORS vs. OKUDO & ORS (1991) 4 NWLR (PT. 146) 551. To this end, the following issues are nominated by this Court for the determination of this Appeal;
ISSUES FOR DETERMINATION;
1. Whether the Appellants suit is statute barred by virtue of the Limitation Law applicable in Imo State?
2. Whether the Court below was right

to have held that the Government of Imo State acquired the land in dispute and that the Appellants were paid compensation for Government acquisition of the land in dispute?
3. Whether the Court below was right to have held that the appearance of Prof. O. E. Nwaebo and Dr. U. U. Chukwumaeze (now Prof. U. U. Chukwumaeze) did not offend the provisions of the 1999 Constitution as amended?
4. Whether the Appellants were entitled to their Claims filed before the Lower Court?

ISSUE 1;
Whether the suit is statute barred by virtue of the Limitation Law applicable in Imo State?

A challenge to the existence of a suit in Court on the ground that the suit is statute barred obliquely challenges the jurisdiction of the Court to entertain that matter.

The word ‘jurisdiction’ is defined as the limits imposed on the power of a validly constituted Court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues, or to the persons between whom the issues are joined, or to the kind of relief sought. See ATTN. GEN. LAGOS vs. DOSUNMU (1989) 3 NWLR (PT. 111) 552.

The

question of jurisdiction of Court is a radical and crucial question of competence because if a Court has no jurisdiction to hear and determine a matter the proceedings are and remain a nullity ab intio no matter how well conducted and brilliantly decided they might be. It is for this reason that jurisdiction is therefore considered variously as the ‘live wire’ ‘nerve-center’ ‘life giving blood’ to an action in a Court of law. See DAPIALONG vs. DARIYE (2007) 8 NWLR (PT. 1036) 332.

It is trite law that the question of jurisdiction due to the position of prominence it occupies in terms of the question of the validity in the entire proceedings of the Court, it can be raised at any time by a party even for the first time at the Supreme Court. But are expected to be raised timeously and resolved before embarking on further proceedings. See UKWU vs. BUNGE (1997) 8 NWLR (PT. 518) 527; MESSRS N. V. SCHEEP vs. THE M. V. S ARAZ (2000) 12 SC (PT. 1) 164 and several other decisions of Court on the issue.

The question of the Court’s jurisdiction raised in this case relates to the statute of limitation. Where a

statute of limitation prescribes a period within which an action should be brought; legal proceedings cannot be properly or validly instituted after the expiration of the period prescribed as the action at that stage of its expiration will be said to be statute barred or caught by the statute of limitation. See the case of OSUN STATE GOVERNMENT vs. DALAMI NIGERIA LIMITED (2007) ALL FWLR (PT. 365) 438.

The question that should perhaps be addressed here is whether the Appellants’ suit filed before the lower trial Court was caught by the statute of limitation applicable in Imo State? In their arguments on the issue, the Appellants told Court that the suit now on Appeal was instituted in 2003 when the Respondents unlawfully broke into the land destroying crops and farmlands, economic trees of the Appellants. Counsel also argued that in construing the provisions of limitation law as regards land, what is needed for the limitation period to commence is the time of absence of possession by the Appellants and the time of possession acquired by the Respondents. Counsel however cited no authorities in support of this contention. He emphasized that the right of

action accrues once possession has been lost to the other party. It was further argued that the evidence of the Appellants that the land has been in the possession Appellants from time immemorial until about the year 2003 when the 1st and 2nd Respondents forcefully and unlawfully entered the land was not challenged by Respondents.

On the part of the 1st and 2nd and the 3rd to 5th Respondents learned Counsel were of the view that the question whether or not the Government of Imo State acquired the land in dispute is purely academic by virtue of the pleadings of the parties and evidence adduced on record as what is admitted in law usually needs no further proof. He said that the Appellants in paragraph 12 of their statement of claim pleaded the acquisition of the land in dispute by the Government of Imo State but stated that the said acquisition is void and illegal. He also drew attention to the answers of the PW1 and PW2 under cross-examination who testified that the Government acquired the land in dispute in 1976, some 27 years before the suit was instituted.

Going by the state of the pleadings in this matter at the Lower Court and the evidence on

record, I simply find myself unable to disagree with learned Counsel to the Respondents that the issue of whether or not the parcel of land in dispute was acquired in 1976 is now purely academic. It would be recalled that the Appellants denied at paragraph 10 of their Statement of Claim that any Government acquisition of the parcel of land actually took place, but devoted the whole of their paragraphs 11 and 12 in denying though strenuously that the purported acquisition was illegal, null and void. The question begging to be answered here is; which other acquisition did they ask the lower trial Court to declare ?null and void and of no effect? at paragraph 16 (ii) of their Statement of Claim? See page 8 of the printed records of Appeal. As if this was not enough, the two witnesses of the Appellants, i.e., the PW1 and PW1 at pages 107-108 and 110-111 gave answers under cross examination which clearly showed that there was an acquisition in 1976. The PW1 under cross examination said;
?If the Government has acquired it, it must have been by force. I say the land in dispute was part of what the Government acquired by force in 1976.?

When cross examined on the issue by learned Counsel for the 3rd to 5th Respondents, the said PW1 also gave the following answers at pages 110 to 111 of the records;
“I told this Court that I am a Pensioner. I retired as a Principal from Imo State school system in 1955. As at 1976 I was at home in Irete. I know that that was the year Imo State was created. The subject matter in dispute was duly acquired by Imo State Government pursuant to the creation of Imo State. I am aware of that but I am not aware that the Government allocated the land to the 1st and 2nd Respondents for their Housing Projects.”

It is important to note that the cross examination of the PW2 did not fare a better as he too also gave evidence clearly suggesting that the Government of Imo State acquired the parcel of land in 1976, but that it was not done by force as suggested by the PW1 in his answers. It would also be recalled that the 1st and 2nd Respondents as 1st and 2nd Defendants in their Statement of Defense at paragraphs 6 and 8 pleaded that the parcel of land in dispute was acquired by the Government of Imo State by virtue of the Imo State Capital Special

Provisions) Edict Nos. 1 and 3 of 1976. It would also be recalled that the Respondents, through their witnesses gave evidence in support of their pleadings on the issue. Learned Appellants’ Counsel made a heavy weather contending that the Respondents did not comply with the Public Lands Acquisition Law Cap 105, 1963 Laws of Eastern Nigeria, applicable to Imo State at the time of the purported acquisition. But that, in view of the issue under consideration, is not the issue for determination at this stage. What is indeed up for determination here is whether the suit filed in 2003 when there is overwhelming evidence that the parcel of land in dispute here was acquired in 1976, is what is up for determination at this instance. In the case of AJAYI vs. ADEBIYI (2012) 11 NWLR (PT.1310) 137 the Supreme Court disagreed with the postulations of the learned Appellants’ Counsel when he said that as regards land, for the limitation period to commence the time of absence of possession by the Appellants and the time of possession acquired by the Respondents has to be taken into consideration. In deed the Supreme Court per ADEKEYE, JSC contrary to this view had

this to say;
“There is evidence that the land in Opebi Village was acquired by the Lagos State Government by Government Notice 104 Public Acquisition Law Chapter 105 published in Lagos State of Nigeria Gazette No. 11 vol. 7 of 16th April, 1974. Under the Public Land Acquisition Law a cause of action or a right of action accrues as from the date the Government acquisition is published in a Government Gazette. UNIVERSITY OF IBADAN vs. ADETORO (1991) 4 NWLR (PT. 542) 404; NATIONAL UNIVERSITY COMMISSION vs. OLUWO (2001) 4 NWLR (PT. 699) 90.”

The noble Lord further said on the issue that;
“The cause of action in respect of the acquisition accrued on the 16th day of April, 1974 when the Lagos State Government published the acquisition in the Gazette. The Plaintiff/Respondent instituted his action at the Lagos High Court on the 31st of July, 1991. By simple mathematical calculation from the date the cause of action accrued, which was the date the land was acquired by the Lagos State Government and published in the Gazette on the 16th of April, 1974 and the date the action was filed in 1991 is 17 years. By virtue of Section 16(2) of

the Lagos State Limitation Law, the period for bringing the an action for recovery of Land is 12 years?An action which is not brought within the prescribed period of 12 years offends the provisions of Section 16(2) of the Lagos State Limitation Law, 1994?.

In evidence in this case is the fact that the Government of Imo State published the acquisition of the parcel of land in dispute in its Edict Nos. 1 & 3 of 1976 on the 18th day of February, 1976 and on 13th day of May, 1976. By the Appellants? own showing their witnesses; the PW1 and PW2 gave useful evidence in the course of trial under cross examination, which showed that the parcel of land in dispute was acquired in 1976 and that they were aware of the acquisitions. The Appellants? writ of summons at the Lower Court was not filed until the 19th day of September, 2003. Twenty-Seven (27) years after the accrual of the cause of action. This issue is resolved against the Appellants.

ISSUE 2;
Whether the Court below was right to have held that the Government of Imo State acquired the land in dispute and that the Appellants were also paid compensation for

Government acquisition of the land in dispute?

The opposing views under this issue are rather straightforward. The Appellants have held unto their position on the one hand that the Lower Court was not right in deciding that the Government of Imo State acquired the parcel of land in dispute in 1976, while the 1st and 2nd Respondents and as well as the 3rd to 5th Respondents, on the other hand have also held strictly to their position that the parcel of land in dispute was acquired by the Government of Imo State in 1976. That is but only one leg of this issue. In respect of the second leg, the Respondents have maintained that compensation was paid to the Appellants and as well as other land owners whose parcels of land were also acquired by the Government of Imo State, in 1976. The Appellants, however differed with this position and have as well as gone ahead to contend that the Government of Imo State failed to comply with the provisions of the Public Lands Acquisition Law Cap 105 1963 LESN in operation at the material time; in terms of the issuance and service of the requisite notice of intention to acquire; notice and service of notice of acquisition

on the person or persons whose property is/are to be acquired; and which notice must disclose the purpose of the acquisition.

In defending this action, the Respondents as Defendants called four (4) witnesses who testified as DW1 to DW4. They also tendered a total of ten (10) Exhibits. They were quite emphatic in their testimonies that the parcel of land in dispute was acquired by the Government of Imo State in 1976. The Appellants as Claimants called two witnesses; the PW1 and PW2 and tendered an Exhibit. The PW1 in an answer under cross examination admitted that the parcel of land was acquired in 1976 by the Government of Imo State and that he was aware that the 1st Respondent as 1st Defendant started building on the land at the time. The PW1 also admitted that the Government of Imo State acquired the parcel of land for overriding public use. The PW2 on the other hand also admitted the Government of Imo acquired the parcel of land in 1976 but was not sure if the Government had paid compensation on all the land it acquired at the time. In the case of OKE vs. AIYEDUN (1986) NWLR (PT. 23) 548 the Supreme Court reiterated the well settled principle that

that which is not denied is deemed to have been admitted. See also the case of BALOGUN vs. UBA LTD (1992) LPELR- 728 SC and a host of other decisions of Court on the subject. In the case of TAIWO vs. ADEBGBORO & ORS (2011) LPELR-3133 SC, Supreme Court per RHODES VIVOUR, JSC puts a seal of finality to the issue when the Court said;
“Judicial admissions are conclusive. That is to say where a party agreed to a fact in issue, it is no longer necessary to prove that fact. In effect, after an admission no further dispute on the fact admitted should be entertained by the Court.”

The findings of the Lower Court on the issue, which I have no hesitation in agreeing with, is at page 207 of the printed records where the Court said;
“Since both the Claimants and the Defendants witnesses admitted that the Government of Imo State acquired lands in 1976 which included the land in dispute and since the Defendants pleaded same in their Statement of Defense while the Claimants were silent on it, it has therefore been proved that there was an acquisition of the land in dispute in 1976.”

From the foregoing, I hereby find and do

hold that there was an acquisition of the parcel of land in dispute by the Government of Imo State in 1976.

On the question of whether compensation was paid by the Government of Imo State after acquiring the parcel of land in dispute it will be proper to note the position of importance that the prompt payment of compensation in transactions of this nature occupy. It remains an integral part of the process of compulsory acquisition of land in Nigeria. It is for this reason that payment of compensation is provided for both statutorily and by judicial pronouncements in countless decisions of Court. Where a party’s right of occupancy has been revoked in compliance with existing law, the occupier or holder is entitled to be paid compensation promptly and the law gives to any person claiming such compensation a right of access to a Court of competent jurisdiction.

One of the usual consequences for a failure to comply with the legal requirements for the compulsory acquisition of land is that the revocation of existing rights to land that the process entails and the subsequent certificate of occupancy on such land, is rendered a nullity under Latin

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maxim; ?nemo dat quod non habet?; which when translated simply means that a person cannot give to another that which he does not have. Therefore, for there to be a valid acquisition of land by Government, there must be notice of revocation of the existing title followed by payment of the statutorily prescribed compensation. The cases in support of this proposition are legion.
In the instance case the Lower Courts lengthy findings on the issue is at pages 206 to 207 of the printed records as follows;
?The Claimants are saying that their land was taken by force by the Defendants and that no compensation was paid over the acquisition. On the other hand, the Defendants contended and gave evidence to the effect that the three (3) villages who commonly own the land were paid compensation and given their traditional rites. In proving same, they tendered Exhibit F showing that the sum of N2,034,923.00 was paid to Messrs OKEREKE & ASSOCIATES, the Attorney representing the three (3) villages involved. Exhibit F broke down the payment schedule as follows; A Hallmark Bank Plc Cheque No. 00177265c dated 25-4-2002 of the value of

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N1,634,923.00 and cash of N400,000.00. Exhibit P showed evidence of payment of traditional rites to the tune of N621,900.00. In the said Exhibit P, two (2) people one M. S. Umah and one Christopher Ugwuegbulam represented Umuoyo while Reginald Agwim and another who thumb printed apparently an illiterate represented Umuoyo 2. Umyuagwu village was represented by 2 people, while Umungada village was also represented by another 2 persons. These documents were received as Exhibits without objection. I Exhibit D also one MR. F. E. ADIZUA who signed for the Commissioner of Lands acknowledged the receipt of the sum of N2,034,923.00 paid to the land owners by the 1st Defendant. The said Exhibit was tendered without objection?.The Court therefore holds that compensation was paid?.

I simply cannot find any reasons to disagree with the learned trial Court on this issue and to this end this issue is once again resolved against the Appellants.

ISSUE 3;
Whether the Court below was right to have held that the appearance of Prof. O. E. Nwaebo and Dr. U. U. Chukwumaeze (now Prof. U. U. Chukwumaeze) did not offend the provisions of the 1999

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Constitution as amended?

The controversy which dogged the proceedings at the Lower Court was triggered off by the objection raised by learned Appellants’ Counsel to the appearance of Prof. O. E. Nwaebo and Dr. U. U. Chukwumaeze (now Prof. U. U. Chukwumaeze) as Counsel for the 1st and 2nd Respondents by virtue of being full time law Lecturers in the Imo State University Faculty of Law. Without further ado, it will be necessary to point out the fact that the settled position of the law for a very long time is that whether a law lecturer participates in private practice or not, it is not in the powers of the Court to enforce it but the duty of the Code of Conduct Bureau. This was the opinion of the Court in OGBUAGU vs. OGBUAGU (1981) N.C.L.R 690. In this case Mr. Okey Achike a legal practitioner and a staff of University of Nigeria appeared for one of the parties in a divorce proceeding. His right of appearance was challenged by the virtue of Section 15 of the 5thschedule to the 1979 Constitution. The Court held that it is not the function of the Court but the function of the Code of Conduct.
The same scenario also played out recently in the

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decision of the Supreme Court in the case of AHMED vs. AHMED (2013) LPELR- 21143 SC where an application was made to strike out a notice of appeal filed by a Law Lecturer with the Nigerian Law School, one Mr. Debo. In declining to strike out the said notice of appeal, the Supreme Court was of the view that the question as to whether a public servant (law lecturer in a Public University) has breached the provisions of the Code of Conduct only makes it an issue for the Code Conduct Tribunal and not the regular Court of law.

It is however, common knowledge that most law lecturers in law Faculties in Nigerian Universities who teach law also operate private law chambers at the same time. There had been diametrically divergent views on the issue of whether law lecturers are under the law permitted to practice law as private legal practitioners or not. Although most of the lecturers who operate law chambers believe they are doing so legally by virtue of a Decree called Regulated and Other Professions (Private Practice Prohibition) (Law Lecturers Exemption of Lecturers) Decree No 2, which was signed into law by the former President Ibrahim Babangida, in 1992

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there are those who say that lecturers in private legal practice are doing so illegally. I am in agreement with the submissions of learned 1st and 2nd Respondents Counsel on the issue when he said that the position makes no difference whether there was cogent evidence at the trial or not which shows that the duo of
Prof. O. E. Nwaebo and Dr. U. U. Chukwumaeze (now Prof. U. U. Chukwumaeze) were involved in private legal practice or not following the stance of the apex Court on the issue. It would be recalled that Counsel had cited and relied on the case of AHMED vs. AHMED (Supra) where the Court held thus:
“Any allegation that a public officer has committed a breach of or has not complied with the provisions of this code shall be made to the code of conduct Bureau. The foregoing provisions are clearly unambiguous and so construed literarily mean that any breaches of any provisions of the said 5th schedule or matters of non-compliance with any provisions of the Code shall, (meaning that it is mandatory i.e. must) be made to the code of Conduct Bureau that has established its Tribunal with the exclusive jurisdiction to deal with any violations of any

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provisions under the Code, if I may emphasize any violations shall be made to Code of Conduct Bureau. The provisions have made it mandatory to take any matters so covered by the 5th schedule (supra) to the code of conduct Bureau and not to any ordinary regular Courts as has been done in this instance. If I may repeat, the Code of Conduct Tribunal has been established with the exclusive jurisdiction to deal with all violations of contravening any of the provisions of the Code as per paragraph 15(1). This provision has expressly ousted the powers of the ordinary Courts in respect of such violations. The tribunal to the exclusion of other Courts is also empowered to impose punishment.”

See also the Supreme Court decision in NWANKWO vs. NWANKWO (1995) 5 NWLR (PT. 394) 153 where it held thus:
“I only need to add that a breach by a public officer of any of the provisions of the Code of Conduct set out in the 5th Schedule to the Constitution of the Federal Republic of Nigeria, 1979 does not confer a civil right on any citizen for which he can sue, it is the Code of Conduct Bureau and the Code of Conduct Tribunal set up

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under paragraph 15(1) and 17 of the said Schedule that have jurisdiction in the matter and not the High Court except where the conduct complained of is a criminal offence.”

This issue is also resolved against the Appellants.

ISSUE 4;
Whether the Appellants were entitled to their Claims filed before the Lower Court?

The Claimants’ claim is for the sum of Five Million Naira (N5,000,000.00) as special and general damages. The burden on the Claimants was to prove (1) that the Respondents as Defendants trespassed on the land in dispute, (2) that the Claimant suffered general and special damages as a result of the trespass. The Appellants as Claimants claimed that the Respondents broke into the land in dispute sometime in 2003 and destroyed their crops and economic trees in the process. Hence, the decision of the Appellants to institute the action at the Lower Court; the Appellants also asked for a declaration that the Claimants were entitled to the statutory right of occupancy in and over the pieces or parcels of land known as and called OKO OHIA ONUNWA OKPOKORO and NWANRU situate at Umuoye Irete Owerri

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Imo State. There was also the relief of Perpetual Injunction seeking to restrain the Respondents as Defendants, their servants and or agents from entering or trespassing into the said land and in whatever manner and interest in and over the said pieces or parcels of land.

The Appellants have contended though strenuously that they were entitled to the grant of their Claims before the Lower Court. It is the settled position of the law that a claim for a declaration of title to land, the Claimant has the burden of proving his case upon his own evidence and cannot rely on the Defendant’s case (if any). See DIKE vs. OKOLOEDE (1990) 10 NWLR (PT. 623) 359 AT 364; MOGAJI vs. CADBURY (1985) 2 NWLR (PT.7) 282.

The pertinent question to perhaps address here is whether the Appellants were indeed entitled to their claims before the Lower Court? That the Appellants as Claimants failed woefully to discharge the burden of proof placed on them, is clearly an understatement. The Appellants only succeeded in all their efforts to call two (2) witnesses who testified as the PW1 and the PW2. It is on record that under cross examination, the duo admitted that the

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parcel of land was acquired in 1976 by the 3rd to 5th Respondents. It is also on record that the Respondents proved their root of title to the land in dispute by virtue of Exhibits H and J by which the parcel of land in dispute was acquired in 1976. This Court also found that the Appellants’ instituting their suit in 2003, some twenty-seven (27) years after the parcel of land in dispute was acquired rendered the Appellants’ claim statute barred. The Appeal therefore fails and it is accordingly dismissed with cost of N50,000.00 against the Appellants.

Other Citations: (2016)LCN/8674(CA)

Clifford Ebere & Ors V. Imo State University & Ors (2016) LLJR-CA

Clifford Ebere & Ors V. Imo State University & Ors (2016) LLJR-CA

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