The Shell Petroleum Development Company Of Nigeria Limited V. Ojiowhor Monday Amadi & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

Chief Richard Akinjide, SAN, learned counsel for the appellant/applicant filed two applications in this court. They are:

1. Motion on Notice filed on 3/9/10
2. Motion on Notice filed on 27/5/10

Learned counsel for the 1st and 2nd sets of respondents, Mr. L. E. Nwosu, SAN filed a preliminary objection to both applications.

Learned counsel for the 3rd set of claimants respondents, Mr. F. A. Oso, SAN and Learned Counsel for the 3rd set of defendant’s/respondents, Mr. J. T. O. Ogoduma both associated themselves with the submissions of Mr. L. E. Nwosu SAN, on the preliminary objection. I have examined the processes filed by both sides and I am of the view that since the applications are interwoven especially on facts, for better understanding and clarity, one Ruling would suffice. I shall briefly set out the facts before I proceed to examine the issues in the preliminary objection and the applications.

In 1958 the claimants and the appellant/applicant executed a Deed of Lease over a large area of land. The Lease was for 99 years commencing on 9/2/57. The claimants were seeking forfeiture of the Lease on the grounds that:

(a) There was breach of the terms of the Lease regarding the payment of rent and obligation not to sublet without the consent of the Lessor,

(b) There was allegation of challenge to title. The High Court found in favour of the claimants and declared as follows:

1. A declaration to the effect that at all material time, the Plaintiff as customary owners are the Landlords of the 2nd defendants (i.e. the appellant/applicant) in respect of that piece or parcel of land lying and situate at Okoroshe in Obio/Akpor Local Government Area of Rivers State comprising 153.5 acres as shown on Survey Plan No.13AN/112/57 and contained in a Deed of yearly Tenancy made on 3/3/58 between Chief Elisha Njo Nwanwa Amos Amadi and the 2nd defendants described in the said Deed as Shell BP Petroleum Development Company of Nigeria Limited which Deed is registered as No.62 at page 62 in Volume 18 of the Register at the Lands Registry in the office at Enugu now kept at the Office in Port Harcourt.
2. A declaration that the acts of the 2nd defendant in subletting part of the said land to third parties without the consent of the Plaintiffs and also for not paying its rent as agreed under the Deed of Tenancy constituted fundamental breach of the 2nd defendants covenants contained in the said Deed of Tenancy and the 2nd defendant has thereby forfeited its rights as a tenant thereof.
3. A declaration that the said Deed of Tenancy has been determined by reason of the 2nd defendant act of obtaining a Certificate of Occupancy in 1998 which aborted the tenancy.
4. A declaration that upon the coming into effect of the Land use Act 1978 the Plaintiffs were deemed to be granted the right of occupancy over the land covered by the Deed of Tenancy and therefore entitled to be granted the statutory right of occupancy in respect of the said land.
5. A declaration that the clandestine act of the 2nd defendant in obtaining a Certificate of Occupancy covering the entire parcel of land for which they had not paid any consideration to the Plaintiff while purporting to be the owner of the land constituted a challenge to the title of the Plaintiffs as Landlords of the 2nd defendant and for which challenge the 2nd defendant has forfeited its right as a tenant in respect of the land.
6. A declaration that the Certificate of Occupancy dated 15/3/99 and registered as NO.24 at page 24 in volume 258 of the Lands Registry in Port Harcourt over the said parcel of land and surreptitiously obtained by the 2nd defendant is unconstitutional, null and void and of no effect whatsoever.
7. A declaration that the said Certificate of Occupancy in so far as it was granted to the 2nd defendant without a prior revocation of the deemed right of statutory right of occupancy vested in the Plaintiffs, the same is null and void and is of no effect whatsoever.
8. An order setting aside the Certificate of Occupancy is hereby granted.
9. An order of forfeiture is hereby granted against the 2nd defendant in respect of the land subject matter of this suit as a result of various fundamental breaches and challenges of the Plaintiff’s right as landlords of the said land.
10. An order of perpetual injunction is hereby granted restraining the Defendant by themselves, their servants, privies, agents or howsoever from further entry into the said Plaintiff’s land or from further denying the title of the Plaintiffs as Landlords over the said parcel of land.
11. IN THE ALTERNATIVE to the last two reliefs above, if the 2nd defendant desires to stay on the land it should pay to the Plaintiffs the sum of N40,000,000 (forty million Naira) per acre being a fair market value of the land in full and final settlement of the Plaintiffs right over the unexpired term of the lease that has been determined.

In confirming the judgment of the trial court the Court of Appeal said:

In summary this appeal substantially lacks merit and it is hereby dismissed. I allow the appeal only in respect of Appellants Issue 8. I hereby affirm all the findings and orders made by the learned trial Judge in the suit No. PHC/1198/2005 except the order for alternative relief which I hereby set aside. Costs of N60,000.00 are hereby awarded to the 1st and 2nd Sets of respondents and N30, 000.00 to the 3rd Set of respondents.

The above gave rise to the applications filed by Chief R. Akinjide SAN. On the 8th day of February, 2011 Learned Counsel for the appellant/applicant moved both applications. That is Motions filed on 27/5/10 and 3/9/10. He urged us to grant both applications. Reference was made to the affidavits in support and his written address which he adopted. Finally he urged us to dismiss all preliminary objections. Mr. L. E. Nwosu, SAN relied on his preliminary objection filed on 22/11/10, his affidavits, counter affidavits and written address. He observed that both courts below found the appellant/applicant to be a trespasser and so it is not entitled to stay of execution. He urged us to refuse both applications.

Learned Counsel for the 3rd claimants/respondent, Mr. F. A. Oso, SAN associated himself with Mr. L. E. Nwosu, SAN’s submissions on his preliminary objection filed on 22/11/10 and Reply argument filed on 20/10/10. He urged us to dismiss both applications.

Learned counsel for the 3rd set of defendants/respondents associated himself with the submissions of MR. L. E. Nwosu, SAN on the preliminary objection.

Order 2 rule 9 of the Supreme Court Rules provide for the filing of Preliminary objections.

Preliminary objections are filed against the hearing of an appeal and so once it succeeds the appeal no longer exists. All too often we see preliminary objections filed against one or more grounds of appeal. Once there are other grounds that can sustain the appeal, a preliminary objection should not be filed. Instead a Notice of Motion seeking to strike out the defective grounds of Appeal should be filed. In this case a Preliminary objection was properly filed, because if it succeeds the appeal comes to an end. See: