Rahamaniya United (Nig) Ltd V. Minister Of Fct & Ors (2021)
LAWGLOBAL HUB Lead Judgment Report
UWANI MUSA ABBA AJI, J.S.C.
The Appellant was allocated plots of land measuring about 8000m2 delineated as Plots 216, 217, 218, 219, 225, 226, 227, 228, Wuye District, Abuja, vide a letter of offer of Terms of Grant/Conveyance of approval dated 4/1/1995 as shown at page 8 of the record. The acceptance was made after 36 days by the Appellant and submitted same to the 1st-3rd Respondents. See pages 8 and 9 of the record. The design of the building was carried out by the Appellant’s architect but the development of the land was stalled because infrastructures were yet to be in place and the Certificate of Occupancy was not yet issued. In the interim, the Appellant on 18/10/2000 noticed that some unknown persons herein referred to as the 4th Respondent, took possession of the land and dug foundation to commence development thereon. Inquiries made at the office of the 2nd and 3rd Respondents to ascertain the identity of the 4th Respondent failed. Besides, the Appellant could not also locate its file with them. This consequently caused the Appellant to file an action before the Federal High Court, Abuja, on 22/3/2004, seeking for the reliefs contained at page 7 of the record.
The 1st to 3rd Respondents without filing statement of defence challenged the jurisdiction of the trial Court to entertain the suit vide a preliminary objection on the ground that it is statute barred by virtue of Section 2(a) of the Public Officers Protection Act, 1990. The trial Court upheld the preliminary objection and dismissed the suit. The Appellant lost when it appealed to the lower Court, hence this appeal. The Appellant has distilled 3 issues for the determination of this appeal thus:
- Whether the Justices of the Court of Appeal considered the justice of the appeal before them when they ignored and failed to determine the nature of relationship subsisting between the parties canvassed by the Appellant.
- Were the Justices of the Court of Appeal right when they held that the 1st, 2nd and 3rd Respondents were entitled to protection offered by the Public Officers Protection Act.
- Was the Court below right in affirming the decision of the trial Court when it failed to avert its mind to the fact that the trial Court has no jurisdiction in entertaining the preliminary objection of the Respondents?
The 1st to 3rd Respondents contrarily formulated 2 issues for determination thus:
- Whether Section 2(a) of the Public Officers Protection Act, Cap 379, Laws of the Federation of Nigeria, 1990, can be applicable in the circumstances of this matter?
- Whether the Court of Appeal correctly considered the cardinal issues arising from this case?
I shall summate the issues distilled by both the Appellant and the 1st-3rd Respondents into one as follows:
Whether the lower Court was right to dismiss the case of the Appellant on the preliminary objection filed that the Appellant’s case was caught up by Section 2(a) of the Public Officers Protection Act?
SUBMISSIONS OF COUNSEL:
The Appellant’s submission is that the fresh issue of law which the lower Court granted leave to the Appellant to argue was not considered by the lower Court, thereby denying fair hearing and occasioning miscarriage of justice to the Appellant. He relied on LARMIE V. D.P.M. S. LIMITED (2005) 18 NWLR (PT.958) AT 463.
It was further submitted that the protection accorded by Section 2(a) of the Public Officers Protection Act does not avail where there is an abuse of office with no semblance of legal justification, or to cases of contract. He cited in support the cases of OFFOBOCHE V. OGOJA LOCAL GOVERNMENT (2001) 16 NWLR (PT.739) AT 457 and F.G.N. V. ZEBRA ENERGY LIMITED (2002) 18 NWLR (PT. 798) AT 175 respectively.
The Appellant’s learned Counsel’s submission herein is that the lower Court did not have jurisdiction to have entertained the preliminary objection when it was not accompanied with a statement of defence as provided by Order 26 Rule 2(1) of the Federal High Court (Civil Procedure) Rules, 2000. He equally cited in support the case of IBRAHIM V. APC (NO.1) (2019) 16 NWLR (PT. 1699) AT 460. He prayed for the resolution of this issue in favour of the Appellant and that the appeal be allowed.
The 1st to the 3rd Respondents on the other hand argued that once an act complained of was done by a public officer, it is immaterial whether it is contractual or recovery of land. He cited in support F.O. OBAYIUWANA V. MINISTER OF FEDERAL CAPITAL TERRITORY, CA/A/152/06 DELIVERED ON 15/1/2009.
It is further submitted that the lower Court determined all the issues submitted for consideration by the Appellant. Besides, that the lower Court did not err in failing to pronounce specifically on the issue of the nature of relationship between the Appellant and the 1st-3rd Respondents, neither did the failure occasion a miscarriage of justice. He relied on AKPAN V. FRN (2012) 1 NWLR (PT. 1281) 421. He therefore urged that this issue be resolved in their favour and to dismiss the appeal.
Without the repetition of the facts in this appeal, the Appellant and the 1st-3rd Respondents entered into a contract in respect of the allocation and conveyance of Plots 216, 217, 218, 219, 225, 226, 227, 228, Wuye District, Abuja, vide a letter of offer of Terms of Grant/Conveyance of approval dated 4/1/1995. Nevertheless, the 1st-3rd Respondents re-allocated same to unknown persons, who ought to have been joined in the suit. This amounted to revocation of the Appellant’s interest in the land without communicating same to the Appellant contrary to Section 28 (6)(7) of the Land Use Act, 1990.
I must not dispute the fact that the 1st-3rd Respondents are entitled to protection and privileges contained in Section 2(a) of the Public Officers Protection Act before an action is instituted against them. This however, is not a general rule.
Although the 2nd Respondent has the statutory right to allocate land in the Federal Capital Territory pursuant to Section 5 of the Land Use Act, the exercise is subject to Section 28 of the same Act. Plots 216, 217, 218, 219, 225, 226, 227, 228, Wuye District, Abuja, have been allocated by the 2nd Respondent to the Appellant and the Appellant’s interest in same has not been revoked by the 2nd Respondent, which went ahead to re-allocate same to unknown persons, that their identity has remained a mystery to me.
There is nothing to describe this act but like beating a child and forcing it not to cry. This indeed is oppression and injustice. The statute provides in its protection of the Public Officer only “ANY ACT DONE IN PURSUANCE OR EXECUTION OR INTENDED EXECUTION OF ANY LAW OR OF ANY PUBLIC DUTY”. The question that readily comes to mind is whether any public officer has any public duty or authority to break the laws of the realm? No such duty or right inheres in the Public Officer to break the law. As law breaking or insubordination to the letters and spirit of the law is not a function delegated to the public officer by law, therefore a public officer who breaks the law with impunity cannot be said to be executing the law or intending to execute the law by his malfeasant act of breaking the letters and spirit of the law or statute that he is entrusted to execute. See Per EKO, JSC, in AWOLOLA V. GOVERNOR OF EKITI STATE & ORS (2018) LPELR – 46346(SC) (PP. 47-50, PARAS. B-E). There is absolutely no justification for the act of the 1st-3rd Respondents or protection under Section 2(a) of the Public Officers Protection Act in this regard.
We are not unaware of the shoddy and shady dealings that agents of the 3rd Respondent carry out in the FCT to their self enrichment and aggrandizement. The Act is therefore a double-edged sword, not only for the protection of the public officers but also of the innocent and oppressed. This was re-enforced in A.G, RIVERS STATE V. A.G., BAYELSA STATE (2013) 3 NWLR (PT. 1340) AT 148, wherein this Court held that the Act is intended as much as within the limits of the law to protect public officers from detraction and unnecessary litigation, but never intended to deprive a party of legal capacity to ventilate his grievance in the face of stark injustice. Per PETER-ODILI, JSC, in AG ADAMAWA STATE & ORS v. AG FEDERATION (2014) LPELR-23221(SC) (Pp. 32-33, paras, C-A), relying on per Onnoghen, JSC, in Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 at 591 posited that where a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers Protection Act.
Similarly, by the statement of claim with the reliefs of the Appellant contained at pages 4-7, it is without disputation that it is a suit founded on recovery of land that has been re-allocated to the 4th Respondent. What then is the position of the law? A strikingly similar scenario came up last year before this Court.
In CIL RISK & ASSET MANAGEMENT LTD V. EKITI STATE GOVT. & ORS (2020) LPELR-49565(SC), sometime in 2007, the Appellant was granted title to a parcel of land for the purpose of building a five star hotel. A Certificate of Occupancy was issued to the Appellant in 2008. Subsequently, the certificate was withdrawn and another one was issued in its place in 2011, but registered in 2012. Both certificates contained terms and conditions including that the Appellant must erect and complete the building on the land in line with Government approved building plans within 2 years of the issuance of the Certificate of Occupancy. The Appellant failed to comply with the terms of the grant, consequent upon which the 1st Respondent revoked the Appellant’s right of occupancy and subsequently awarded the said parcel of land to the 4th Respondent. In October 2016, the Notice of Revocation was published in a newspaper. Aggrieved that the notice of revocation was served or made known to it through the dailies, the Appellant commenced an action at the High Court, challenging the said revocation.
The 1st-3rd Respondents filed a preliminary objection challenging the competence of the action on the grounds inter alia, that the action was statute barred, and that the suit disclosed no reasonable cause of action. The trial Judge upheld the Respondents’ objection that the action was statute barred, after finding as a fact that the Appellant was served with the notice of revocation in December 2014. Dissatisfied with the ruling of the Court, the Appellant appealed against same to the Court of Appeal, albeit unsuccessfully. Appellant appealed further to the Supreme Court. In conclusion, the Supreme Court allowed the appeal.
Per EKO, JSC, in CIL RISK & ASSET MANAGEMENT LTD V. EKITI STATE GOVT. & ORS(2020) LPELR- 49565(SC) (PP. 6-9, PARAS. E-C) settled this issue thus:
This Court… held that “the protection afforded public officers under the Public Officers Protection Act does not apply in cases of recovery of land. The second limb of the Appellant’s submission on the scope of Section 2(a) of the Public Officers Protection Act is that the provision does not apply to cases founded on contract, or breach of contract. OSUN STATE GOVERNMENT V. DALAMI (NIG) LTD (2007) 9 NWLR (pt. 1038) 66 is a case founded on breach of lease agreement. The respondent sued the Osun State Government seeking a declaration that the latter’s purported termination of the Management Lease Agreement was wrongful. The respondent sought a further order nullifying or setting aside the purported termination, and an order for specific performance. Osun State Government pleaded limitation afforded by the Public Officers Protection Act. This Court unanimously rejected the plea and held that Section 2 of the Public Officers Protection Act does not apply in cases for recovery of land or breach of contract…
Per MARY UKAEGO PETER-ODILI, JSC (P. 55, paras. A-E) in the same case above held that the protection afforded public officers under the Public Officers (Protection) Act does not apply in cases of recovery of land. Same with the dictum of Per CHIMA CENTUS NWEZE, JSC (Pp. 88-89, paras. B-A) in the same case above that the scope of the Public Officers Protection Act does not extend to actions founded on breach of contract.
Per GALUMJE, JSC, in ROE LTD V. UNN (2018) LPELR-43855(SC) (PP. 21-22, PARAS. D-A) pointedly declared that:
The Public Officer Protection Act was not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done.
In the instant appeal, the 1st-3rd Respondents filed the said preliminary objection without filing any statement of defence, which the trial Court used to dismiss the case of the Appellant and affirmed by the lower Court. It is the Appellant’s contention that the lower Court erred to have affirmed the trial Court’s decision since it lacked the jurisdiction to entertain the said preliminary objection unaccompanied by the statement of defence, contrary to Order 26 Rule 2(1) of the Federal High Court (Civil Procedure) Rules, 2000.
Although objection to jurisdiction could be taken on the basis of the statement of claim, on the evidence received or by a motion on notice supported by affidavit giving the facts upon which reliance is placed. In fact, it could be taken even on the face of the writ of summons before filing statement of claim. See Per MOHAMMED, JSC in ELABANJO & ANOR V. DAWODU (2006) LPELR- 1106(SC) (PP. 18-19, PARAS. C-E). It is however advisable and desirable to file a statement of defence to it before the objection is raised, whether it borders on the Court’s jurisdiction or not, since demurrer has been abolished.
The 1st-3rd Respondents chose not to respond to or argue this issue and same is deemed admitted. I do not need to dissipate energy anymore or walk the extra miles again to conclude on this appeal. The 1st-3rd Respondents did not join issue with the Appellant on issue 3, hence it is deemed admitted and succeeds.
I must hastily state here that a Counsel must understand the import of judicial precedents and the hierarchy of Courts as regards the application of decided cases. The 1st-3rd Respondents’ learned Counsel has copiously cited and relied on decided authorities of the Court of Appeal to persuade this Court to decide this appeal in their favour. This ought not to be so. There is plethora of Supreme Court cases on these issues, which the Respondents’ Counsel ought to have relied upon to cause this Court to bind itself by them. Most of the relevant cases cited by the learned Counsel to the 1st-3rd Respondents are decided cases of Court of Appeal and I have not been swayed or persuaded by them.
The Appellant’s interest in plots 216, 217, 218, 219, 225, 226, 227, 228, Wuye District, Abuja, vide a letter of offer of Terms of Grant/Conveyance of approval dated 4/1/1995 is still vested in it and subsists since it has not been validly revoked. Besides, the unknown persons have not been made parties adverse to the interest in the said plots. Thus, I make bold to say that this Court cannot decide on parties who lay claim to plots 216, 217, 218, 219, 225, 226, 227, 228, Wuye District, Abuja, that have not been identified or made parties in this appeal. Furthermore, if they have interest in the said plots, they ought to have been joined or sought to be joined. The failure to join themselves is against them.
This issue is decided in favour of the Appellant. The appeal succeeds and is allowed. The matter should be remitted to another judge of the trial Court for expeditious hearing. Parties are to bear their own costs.
SC.164/2009
