Elder Sunday Omotesho (Regent) & Ors V. Alhaji Abubakar Abdullahi & Ors (2007)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, J.C.A

In the High Court or Lagos State, in the Ikeja Judicial Division, the Hausa Community Development Association, in representative capacity, brought an action against the Federal Ministry of Works and Housing as well as the Attorney General of the Federation claiming as follows:

“… A Declaration that the plaintiffs are entitled to the statutory right of occupancy in and over the land measuring 135.162 hectare of land surface, lying and being at phase 11, Federal Low Cost Housing Scheme, Abule Egba, Agege in Alimosho Local Government Area of Lagos State, which is more particularly described and delineated on Survey Plan No ASC/LA/149/93.

2. An order directing the Defendants to issue a certificate of occupancy to the Plaintiffs in respect of the said piece of land.
3. An order of perpetual injunction restraining the Defendants by themselves, their servants, workmen, privies or agents howsoever from disturbing or otherwise interfering with the plaintiffs’ rights over the said parcel of land”.

The defendants, upon service of the originating summons on them, filed a notice of intention to rely on preliminary objection, challenging the jurisdiction of the trial court on the ground that the Lagos State High Court lacks competence to entertain the suit by virtue of the provisions of section 230(1)(q) and (s) of the Constitution (Suspension and modification) Decree No 107 of 1993.

The matter came on for hearing on the 27th January, 1997 when both parties failed to show up at the trial court. The notice of intention to rely on a preliminary objection was consequently struck out for want of prosecution.

The action, thereafter, proceeded to trial with the plaintiff calling three witnesses, in addition to producing some documentary evidence which were admitted. The plaintiffs’ learned counsel addressed the court in writing.

Learned trial judge in his judgment came to the following findings:

“Finally, I would say, it is a fact established by the evidence adduced on records, the facts which were not challenged by the Defendants, that the plaintiffs are entitled to the issue of statutory right of occupancy on the plot of land measuring 135.162 hectares of land situate, lying and being at Phase 11 Federal Low Cost Housing at Abesan Scheme, Abule Egba, Agege in Alimosho Local Government Area of Lagos State, more particularly described and delineated on survey plan No ASC/LA/149/91.

The 1st defendant in particular is hereby ordered to issue a certificate of occupancy to the plaintiffs in respect of the said piece of land approved by the Ministry of Works and Housing.

Thirdly there would be an order of perpetual injunction granted restraining the Defendants by themselves, their servants, workmen, privies or agents or otherwise howsoever from disturbing or otherwise interfering with the plaintiffs’ rights over the said parcel of land.”

The defendants who were aggrieved by the order of the learned trial Chief judge, Adagun, were apparently satisfied or content with the judgment and have, therefore, not appealed against it.

The persons who sought and obtained leave of the trial court pursuance of section 243(a) of the 1999 Constitution of the Federal Republic of Nigeria were not involved in the matter at the hearing in the court below. Not only was there no shred of evidence pertaining to them led through out the length and breath of the proceedings; but also there was no order made against them to justify their bringing an appeal.

The notice of appeal contains two grounds of appeal which will be recited immediately hereunder without their respective particulars.

“Ground One.