Attorney-general. Of Rivers State & Anor V. Mrs. Vidah C. Ohochukwu & Anor (2003)

LawGlobal-Hub Lead Judgment Report

DAVID ADEDOYIN ADENIJI, J.C.A.

This is an appeal against the judgment of H. George, J., sitting at High Court of Rivers State, Port Harcourt, delivered on 7th January, 1994, giving judgment for the plaintiff/respondent for declaration as sought and perpetual injunction restraining defendants jointly and severally from further interfering with the plaintiffs’ ownership or possession of the property, situate lying and being at Plot A 27 G.R.A. Phase 1 Port Harcourt.

The 1st and 3rd defendants/appellants being dissatisfied with the decision appealed against same, each filing a notice of appeal containing one ground of appeal. The 3rd defendant later filed an amended notice of appeal, with leave of court, containing 7 additional grounds of appeal. From the said grounds of appeal, the 3rd defendant distilled 4 issues for determination by the court, these are:
“1. Whether the trial court had jurisdiction to hear this suit having regard to the provisions of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984 (Ground 2).
2. Whether the approach adopted by the trial court in writing the judgment in this suit prejudiced the case of the appellants (Grounds 3 and 5).
3. Whether the trial court appreciated the issues raised in this suit (Ground 6).
4. Whether the trial court was right in awarding judgment to the plaintiff, having regard to the pleadings and evidence tendered in this suit (Grounds 1, 4 and 7).”

The first appellant appeared to abandon his appeal. He filed no brief and was not represented at the hearing of the appeal. The 2nd respondent also filed no respondent’s brief and was not represented at the hearing of the appeal, which was only between the 3rd defendant and the plaintiff.

The facts of the matter are that the plaintiff/respondent formerly domiciled in a foreign country applied for and got a plot of government land in Rivers State. He however, got allocated another plot of government land in the city of Port Harcourt.

The plot in dispute was however, taken from the plaintiff/respondent on the ground that the allocation was made in error as it ran counter to the State’s government policy of one-man one plot. Apart from that, the plaintiff was said to have willingly surrendered plot A 27 now in dispute in preference for the Plot at 39 Birabi Street in Port Harcourt, where he resided. The 2nd defendant, that is, the Housing and Property Development Authority, also claimed that the plaintiff/respondent defaulted in the discharge of his obligation under the contract.

These allegations, the plaintiff/respondent denied and maintained that the plot was taken from him against his will. He protested in writing but the attempt failed, whereupon he tried to reassign the plot to his wife, Mrs. Vidah C. Ohochukwu (described as his common law wife) who was later substituted for the plaintiff/respondent upon his demise.

In arguing the appeal, the appellant’s counsel submitted that the issue related to the matter of jurisdiction which was raised at the trial court, but which was overruled. The case he argued, arose during the Military regime in the country which regime promulgated the Supremacy and Enforcement of Powers Decree that ousted the jurisdiction of the courts to question any act done under a Decree or edit particularly section 1(2), (b) of the said Decree.

Counsel reproduced the provision of the Decree and maintained that from the tenor of the Decree, no civil proceedings could be initiated to challenge any act of the Federal Military Government or the Government of a State, done or purported to be done under a Decree or Edit., The revocation of the plaintiff/respondent’s certificate of occupancy on the plot in dispute was done by the Military Government of Rivers State pursuant to the Land Use Decree-of 1978 and the revocation was done for purpose of effective maintenance of peace; order and good government of the Federal Republic of Nigeria of which Rivers State is a constituent part.

The revocation was done pursuant to the recommendations of Sanomi Commission on the allocation of land, which was set up to rectify anomalies in the allocation of State lands. Counsel was of the view that the Decree applied to acts done under the Land Use Decree. The trial court, learned Counsel for the appellant stated was wrong in assuming jurisdiction without considering the report of Sanomi’s Commission which would have convinced the court that the revocation done was for the peace and good governance of the State, in which case, the court would have no jurisdiction. Decree No. 13 of the 1984 counsel maintained, had been interpreted in this court in the case of Chief Albert Sanumi & Ors. v. The Military Governor of Ondo State and 3 Ors. (1995) 2 NWLR (Pt.376) 231, where the court held that a letter written by the Military Governor was an act done pursuant to an Edit and a civil action could lie against same.

Counsel referred in that connection to the decision on Olugbemi Obada, Oba of Ponyon v. Military Governor of Kwara State (1990) 6 NWLR (Pt.157) 482. Learned Counsel held the view that the plaintiff/respondent in the suit in effect sought to challenge the act of the Military Government of Rivers State, done pursuant to his powers under the Land Use Decree. In view of this, the court ought to have declined jurisdiction in the case.

On issue No.2, counsel’s grouse was with the way the judgment of the trial court was written. According to learned Counsel, the issue was distilled from grounds 3 & 5 of the grounds of appeal. Counsel conceded to the court, the right to adopt any approach that is convenient to the court in writing its judgments once the court could show that it understood the issues raised before it by virtue of the pleadings and evidence together with the law cited before it. Once the contrary is the case, the court’s trial becomes tainted.

Counsel cited in support the decision in Polycarp Ojogbue v. Ajie Nnubia & Ors. (1972) 6 SC 227 at 236 and the case of Chief Ademigba Afolayan v. Oba Joshua Ogunrinde & Ors. (1990) 1 NWLR (Pt.127) 369 at 383. Counsel conceded also that the court was not bound to consider the case of the plaintiff first, but where the court decided to consider the defence first, it should not make any finding of fact. Counsel relied for this on the decision in Alhaji Oludoja Sanusi v. Oreitun Ishola Ameyogun (1992) 4 NWLR (Pt.237) 527 at 553. The court is not supposed, added counsel, to consider the weakness of defence before considering the plaintiff’s case, which he said the trial Judge did.

The appellant he said was prejudiced by the approach adopted by the court especially, when the court granted the declarations sought even in the face of the plaintiff’s admission that he surrendered the plot and the fact that the 3rd defendant/appellant was a bona fide purchaser for value without notice. This, counsel said, was against the spirit of section 33 of the 1979 Constitution as regards fair hearing. The judgment was thus, a nullity and should be nullified by this court.