Mr. Patrick Ordia & Anor V. The Governor of Delta State & Ors (2007)
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ZAINAB ADAMU BULKACHUWA, J.C.A.
By an originating summons filed on the 17/8/2000 before the High Court No.3 Effurum, the appellants as plaintiffs claimed against the respondents/defendants as follows:-
(i) Whether as per the Supreme Court judgment in Suit No. SC/220/1992 ANTHONY IDESOH & ORS. Vs. CHIEF PAUL ORDIA & ORS, the plaintiffs herein who are the personal representatives of the Late Chief Paul Ordia, are the DEEMED HOLDER of the statutory right of occupancy in respect of all that piece or parcel of land lying, being and situate at along Udu Road, Koloholo village, Enerhen Effurun covered by the Supreme Court judgment aforesaid the litigation plan filed thereto.
(ii) If the answer to (i) above is in the affirmative, whether the Defendants can validly issue or grant to private individuals for their own private purposes certificate of occupancy in respect of portions of land comprising the entire lands.
Whether the Defendants can or validly do so without a revocation of the rights or the Plaintiffs as Deemed Holders of statutory right of occupancy over same.
(iii) Whether the Defendants or their predecessors in office validly acquired title in the lands aforesaid under any law in force at all material times or whether they could have acquired any valid title there under in view of the Supreme Court judgment.
(iv) Whether (if there is any purported compulsory acquisition of the lands which is denied) the Defendants or their predecessors in office have lost all rights to the lands by reason of putting same for non-public use or purposes.
WHEREFORE the Plaintiffs claim against the Defendants:-
(a) The sum of N200 Million from the Defendants for trespass in that the Defendants without any lawful claim broke, close and entered into the Plaintiffs land in Plaintiffs’ exclusive possession at along Udu Road, Koloholo I village Enerhen Effurun commencing from 1997 and put private tenants/squatters on the lands for private purposes upon which rents are collected by the Defendants, and proceed aimlessly and heedlessly to issue certificate of occupancy to them.
(b) A DECLARATION that the Defendants or their predecessors in office cannot validly grant certificate of occupancy in respect of the aforesaid lands to any other persons other than the Plaintiffs.
(c) An order of court commanding the Defendants to surrender in possession of the said lands to the Plaintiffs.
(d) Injunction perpetual restraining the Defendants from further committing trespass in whatever form or manner on the said Plaintiffs’ land.
After filing a counter-affidavit to the originating summons, the Defendants yet filed a Notice of Preliminary Objection challenging the competence of the action as instituted by the plaintiffs before the lower court. The grounds being that the matter being contentious ought not to have been commenced by way of originating summons, and that the action having been commenced 3 months after the cause of action arose is statute barred.
The Preliminary Objection was heard by the lower court and upheld in a considered ruling delivered by the lower court on 8/7/2004 and the originating summons dismissed on the grounds that the action is statute barred. Being dissatisfied the Plaintiffs as appellants have now appealed to this court on four grounds of appeal.
From these grounds the appellant has distilled this issue in his settled brief as required by the rules of this curt,
“Whether the illegal and unconstitutional acts of the Respondents in compulsorily acquiring the Appellant’s land and reallocating same to other Private individuals are protected by the Public Officers Protection Law Cap 137 Vol. V of the Defunct Bendel State 1976.”
The respondents in the respondents’ brief of argument deemed filed by an order of this court of 26/9/06 also distilled one issue for the determination of the appeal, which is,
“Whether or not the Public Officers Protection Law Cap 137 Volume. V Law of Bendel State 1976 now I Applicable to Delta State avails the defendants”.
It is pertinent at this stage before going into the appeal to state the facts leading to this appeal. These are as contained in the supporting affidavit to the originating summons as averred to by the 2nd plaintiff, Mr. Fredrick Ordia. The averments are as contained hereunder:-
- That I am the 2nd plaintiff in these proceedings.
I know the 1st plaintiff. He is my elder brother of the full blood. Both of us are the children of the late Chief Paul Ordia. We bring this suit for ourselves and on behalf of the other beneficiaries of the Estate ‘of late Chief Paul Ordia who died intestate.
- I have the 2nd plaintiff’s authority to swear to this affidavit for ourselves.
- The land in dispute is the property of our late father Chief Paul Ordia who died intestate, our father purchased several plots of land between 1966-1971.
- Between 1966-1971 our father purchased several plots of land from the ONOMIRUREN, ONOMUOHOR, EKRUGHO and ONORUME families of Enerhen village part of which is evidenced by, a registered deed of conveyance dated the 2nd day of March 1970 and registered as No. 42 at page 42 in volume 266 of the lands Registry in the office eat Benin City now kept in the lands registry Asaba. The copy of the Deed of conveyance is attached Herewith and marked Exhibit ORDIA-1.
- After the purchase, our late father took exclusive possession of the lands and put same to
maximum use until 1975 when the EGBORODJE family of lgbudu Warri challenged our father’s title which culminate in legal action in court.
- The suit reached the Supreme Court of Nigeria on appeal. The Egborodje family of Igbudu lost in the trial court, the Court of Appeal and finally in the Supreme I Court. The Supreme Court judgment was handed down as SC/220/1992 dated the 28 day of February 1997.
Attached is 4 copy of the Supreme Court judgment marked Exhibit ORDIA -2 and the litigation plan marked Exhibit ORDIA-3.
- The Supreme Court judgment is also reported in (1997) 47 L.R.C.N 469.
- In the meantime, the defendants or their predecessors in offices purported to have acquired the said land under the Land Acquisition Law Cap 105 Laws of the former Midwestern State of Nigeria.
- I know as a fact that, no relevant notices were sent to our father land if sent they are not valid in law. Nor was the government’s intention to compulsorily acquire the land gazzetted as required by law and if gazzetted, it ) it was not validly made. The govt. acquired no legal title therefore.
10 The litigations which commenced from about 1975 ended 1997 following the judgment of the Supreme Court Exhibit ORDIA-2.
- The Land Use Act already come into force by 1st March 1978.
- By the Supreme Court judgment we came deemed holders of a statutory Right of occupancy.
- The Defendants believing that they had validly acquired titled to the land has put tenants/squatters on the land and has intact issued certificate of occupancy to some of the tenants whilst our deemed statutory Right of occupancy is still extant and not revoked.
- That I know as, a fact that government acquisition of land compulsorily are for public purposes. However the defendants have severally breached this requirement.
They have granted portions of the land to private Kingdom Mission, a Christian Organization.
The same was granted to numerous other private tenants including Messrs May Okoh etc who build their private ‘houses thereon.
- I have been advised by our solicitor that the defendants have no right to take land from a private citizen and give it to another private citizen for his private enterprise.
- That even at that, no compensation was paid to our father. And none has been paid to us. Rather the defendants kept issuing certificate of occupancy in respect of the land to private individuals.
These are the facts from the appellants’ perspective. As shown earlier, each of the parties raised one issue, the two separate issues are the same, but in the determination of this appeal I will adopt the issue raised by the respondents which is more to the point.
The appellants submit that the provisions of the Public Officers Protection Law Cap 137 V91. V Laws of the defunct Bendel State of Nigeria 1976, as applicable to Delta State do not apply to the law and facts of this case. That the, acts of the respondents in purporting to have compulsorily acquired the appellants’ land inherited from their, father late Chief Paul I. Ordia and reallocating same to other private individuals constitutes an infringement on the appellants Fundamental Rights to acquire and own immovable property in Nigeria and the constitutional provision against compulsory acquisition of immovable property without payment of compensation as enshrined in Sections 43 and 44 of the 1999 Nigerian Constitution.
He contends that the Constitution did not specify the time frame within which any person whose rights have been infringed upon can access the court for remedies. That any law that tends to abrogate or derogate from a citizen’s right to court to have his fundamental rights enforced cannot stand. That the trial judge was therefore wrong to have applied the provision of the Public Officers Protection Law to the facts of this case. That the law is only applicable in protecting Public Officers of Public bodies in their tortuous liabilities and does not avail them in their contractual or other liabilities putting reliance on Salako vs. L.E.D.B. &. Anor 1953 20 NLR 189; Federal Government of Nigeria & Ors. Vs. Zebra Energy Ltd. 2003 3 W.R.N.1.
It is the further contention of the appellant that Section 6(2) of the Limitation Law of Bendel State 1976 applicable to Delta State specifically states and limits the period within which an action can be brought for the recovery of land or interest in land to 12 years submitting that the said specific law dealing with the limitation period for bringing an action for the recovery of land clearly removes the application of the general law of limitation – James G. Orubu Vs. National Electoral Commissions & Ors. 1988 5 NWLR Part 94 323; Athanasius I. Tronsha Vs. The Judicial Service Committee Benue State Anor. 19976 NWLR Parts 508307. The appellant urged us to allow the appeal.
The respondents on the other hand while maintaining that the suit as instituted is against the act of the respondents as public officers which is the grant of certificates of occupancy to 3rd parties submitted that the Public Officers Protection Law as applicable in Delta State gives full protection to all public officers or persons engaged in the execution of public duties who at the time acted within the confines of their public duty. And that the respondents are public officers within the confines of the said law, and referred and relied on Ibrahim Vs. Judicial Service Committee 1988 NWLR Part 584 1; Adigun Vs. Ayinde & 2 Ors. 1993, 5 NWLR Part 313 516; The Federal Government of Nigeria Vs. Zebra Energy Limited 2003 FWLR Part 142, 154.
The respondents submitted that the cause of action arose in 1997 and the suit giving rise to this appeal was initiated in the year 2000 clearly outside the three months period envisaged and provided for by required by law the Public Officers Protection Law. That Sections 43 and 44 of the 1999 Constitution relied on by the appellants merely spelt out the rights of an individual and did not in any way prescribe the duration within which an individual whose rights under the said Section has been infringed can commence or institute an action in court and the said Sections do not affect the law as it relates to the limitation of actions.
The respondent having conceded that the Public Officers Protection Law is not applicable in cases of recovery of land, but submits that the position in the instant case is not for recovery of land but a complaint against the issuance of certificates of occupancy to 3rd parties by the respondent, it is therefore covered by the said law.
On the facts, as earlier shown in this judgment, as per the averment in the affidavit in support of the originating summons, the complaint of the appellants was that the respondents granted and issued certificates of occupancies to 3rd parties on a land they inherited from their late father which land was confirmed to him by a Supreme Court Judgment of February, 1997. They maintained that to their knowledge the said land was not compulsorily acquired by the said respondents.
That even if it was so acquired by the respondents their late father or themselves were not notified nor was the acquisition gazettes as required by law.
The question one asks here is what is the essence of the suit as instituted by the appellants before the lower court? Was it to recover the land that accrued to their father and by extension to them through inheritance?
I will here repeat the claim of appellants before the lower court.
(i) The sum of N200 Million from the defendants for trespass in that the defendants without any lawful claim broke close and entered in the plaintiffs’ land at the Udu Road, Kolokolo village Enerhen town and commencing 1999 started putting tenants on the lands far private purposes.
(ii) A declaration that the defendants cannot validly grant certificate of occupancy in respect of the said land.
(iii) An order of court commanding the defendants surrender possession of the said lands to the plaintiffs.
(iv) Injunction perpetual restraining the defendants from further committing the said trespass on the said trespass on the said land.
From the above it is, clear that the aim of the appellants in instituting the action is to recover the land they felt they were entitled to which the dependants trespassed upon (see in particular relief (iii) thereof). ,
Can the Public Officers Protection Law which limits the period of instituting an action be invoked against the appellants in the instant case? ‘
There is no doubt that the respondents are public officers and the act complained of giving rise to this appeal is a public duty, it is also now trite that any action Which is instituted against the act of any public officer while performing his public function which is instituted outside the 3 months period envisaged by the Public Officers Protection Law is statute barred. See – Adigun Vs. Ayinde 1993 8 NWLR Part 313, 516; Bello Vs. A.G. Oyo State 1986 5 NWLR Part, 43 828; Egbe Vs. Adefarasin 1985 1 NWLR Part 3 549; Eheogu Vs. Aliri 1991 3 NWLR Part 179 258; Egbe Vs. Alhaji 1990 1 NWLR Part 128 546.
There is however an exception to the above rule which is to the effect that the Public Officers Protection Law does not apply in cases of recovery of land, breaches of contract, claims for work and labour done etc.
See in particular the findings of My Lord, Mohammed (J.S.C.) in F.G.N. Vs. Zebra Energy Ltd 2002 18 NWLR Part 789 162 at 196- 197.
“It is abundantly clear that this court, in Ibrahim’s case, did not consider whether the Act applies to cases of contract. I am not unmindful of the judgment of Ogundare, JSC in Ibrahim’s case wherein he considered the applicability of contract cases to the privilege provided in the Act. But that is a dissenting judgment and although well founded, it is not the binding decision on the issue. ”
Mr. Akpangbo, SAN, submitted quite rightly that this court V whilst interpreting the provisions of Section 97 of the Ports Act, which is in pari material with section of the Public Officers Protection Ordinance held in the case of Nigeria Ports Authority Vs. Construzioni General Farsura Cogefar SPA and Anors 1974 1 All NLR (Pt 2) 463 that the said law was not intended by the legislature to apply to contracts. The learned Senior Advocate referred also to the Midland
Railway Co. Vs. The Local Board for the District of Withington (1882-1883) 11 QBD 788 at 794 and the case of Salako Vs. L.E.D.B. and Anor. 1953 20 NLR 169. I have looked into those cases and I agree that the Supreme Court considered the applicability of Public Officers Protection Ordinance to action founded upon cases of breach of contract. In the Nigerian Ports Authority Vs. Construzioni (supra) this court per Ibekwe, JSC, held, “We shall now deal with the other point which to our mind, does not seem to be well settled, namely I whether the kind of statutory privilege which we have been considering is applicable to an action founded upon a contract. In other words, whether S.97 of the Ports Act applies to cases of contract. We think that the answer to this question must be in the negative. We agree that the section applies to everything done or omitted or neglected to be done under the powers granted by the Act. But we are not prepared to give to the section the stress which it does not possess. We take the view that the section does not apply to cases of contract.
The learned Chief Justice, in deciding this point made reference to the case of Salako Vs. L.E.D.B. and Anor. 20 NLR 169 where de Commarmond S.P.J. as he then was construed the provision of S.2 of the Public Officers Protection Ordinance which is almost identical with S. 97 of the Ports Act, and thereafter stated the law as follows:-
“I am pf the opinion that section 2 of the Public Officers Protection Ordinance does not apply in case of recovery of land, breaches of contract, claims for work and labour done, etc.”
We too are of the opinion that de Commarmond S.P.J. has quite rightly stated the law in the passage of his Judgment cited above.”
This is the law as stated above. Cases on recovery of land do not fall within the purview of the provisions of the Public Officers Protection Law. Here I am more inclined to uphold the appellants submission that Section 6(2) of the Limitation Law as produced hereunder; 6(2) No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or if it first accrued to some person through whom he claims to that person Provided that, if the right of action accrued to the State through which the person bringing the action claims, the action may be brought at any time before the expiration of the period during which the action could have been brought by the State or twelve years from the date of which the right of action accrued to some person other than the state whichever period first expires. ”
Specifically states and limits the period within which an action for the recovery of land or an interest in land can be brought to 12 years. The provisions of the Public Officers Protection Law will thus became general and are not applicable where there is a specific law, in the instant case, the Limitation Law. See Orubu Vs. National Electoral Commission & Ors. (Supra); Tionsha Vs. JSC Benue State (supra).
From the above the applicable law is the Limitation Law and the limitation period is twelve years. The cause of action in this appeal which arose in 1997 is still maintainable until the year 2009. The learned trial judge was therefore wrong to have upheld the respondent’s objection by applying the provisions of the Public Officers Protection to the facts of this case.
Both parties have made submission on compulsory acquisition of land by the respondents, in view of the consequential orders I will make, it is best to keep silent.
On the whole I find merit in this appeal. I hereby allow it. I set aside the decision of the trial court upholding the respondents’ preliminary objection of 28/7/2004.
I hereby make an order dismissing the respondents’ preliminary objection.
I make an order remitting the case to the Chief Judge of Delta State so that the matter can be decided on the merits by another Judge other than Akperi (Mrs.) J.
I award costs assessed at N10,000,00 to the Appellants.
Other Citations: (2007)LCN/2250(CA)
