Alhaji Madi Mohammed Abubakar V Bebeji Oil And Allied Products Ltd. & 2 Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

A.M. MUKHTAR, JSC

The appellant instituted an action in the High Court of Kano State against the respondents in this appeal, over the ownership of a building at No. 59B Lamido Crescent, now No.15 Lamido Road Kano and more particularly described in the recertified certificate of occupancy No. LKN/RES/RC/82/1622. The property was built, in 1972 by Arewa Construction Limited for the plaintiff and he enjoyed peaceful possession of the building until 1977 when it was mistakenly forfeited to the Kano State Oil and Allied Products Ltd., under The Public Officers and other Persons (Forfeiture of Assets) Order 1977. The plaintiff petitioned both the Federal and Kano State Governments, and a Federal Investigation panel was set up. The investigation panel found that the property was wrongfully forfeited, and directed the State Government to reconsider the matter in order to redress the injustice done to the plaintiff. The Kano State Government after a further investigation found that the property was wrongfully confiscated, and the Military Governor of the State wrote to the plaintiff returning the said property. Series of letters were written to the relevant agents of the Government of Kano State to confirm the return of the property to the plaintiff. In spite of the letters the 3rd defendant (a successor in interest to Kano State Oil Mills) has continued to trespass on the property, thereby preventing the plaintiff from enjoying same. The plaintiff sent series of petitions in respect of this situation, but the 3rd defendant continued in the trespass. Consequently the plaintiff went to court seeking the following reliefs:

“17(a) A declaration that the plaintiff is the owner and the holder of a statutory right of occupancy over the land buildings and appurtenances situate at No.59B Lamido Crescent now 15 Lamido Road Nassarawa Kano covered by certificate of Occupancy No.LKN/RES/82/1622 and is entitled to the full ownership rights over same free from trespass from the Defendants and their agents.

17(b) A declaration that the 3rd Defendant continued entry and occupation of plaintiff s property since October, 1979 is unlawful, illegal and trespass.

17(c) N20 million aggravated damages for trespass against the Defendant.

17(d) N5 million damages jointly and severally against the Defendants wrongful deprivation of the rent the plaintiff would have earned on the, property from 1979 – date.

17(e) An order directing the Defendants whether by themselves, servants, their tenants, agents, privies or whosoever may be in the premises without the consent nor authority of the plaintiff to vacate immediately and give possession of the whole property at 15 Lamido Road Nassarawa Kano together with the appurtenances free from waste, destruction to the plaintiff.

17(f) A perpetual injunction restraining the Defendants whether by themselves, servants, agents, and privies from trespassing the plaintiffs property at 59B Lamido Crescent now 15B Lamido Road Kano or interfering in any manner with the plaintiff peaceful and quiet enjoyment of the same property. The 3rd Defendant denied most of the plaintiffs allegations, alleging that the certificate of occupancy above was obtained by fraud by the plaintiff as a result of destruction of the original records in respect of the premises after the out break of fire at the Ministry of Land and Survey, Kano. According to it the original certificate in respect of the property in controversy was cancelled by the Kano State legal Notice No. 7 No. 1977.

The 3rd defendant denied that it trespassed on the property as it has legal and equitable rights to the property, and also canvassed that an act done legislatively cannot be done administratively. PAGE| 4 A defence of res judicata was raised in the 3rd defendant’s statement of defence thus:

“16. The 3rd Defendant will also contend at the trial of this action that the so called letter of Group Captain Ishaya Shekari dated 25th September, 1979 has been invalidated by this court as per the ruling of this court in suit No.K/378/82 dated 18th day of August, 1983. Both the ruling of the court and the certificate of judgment issued thereon are hereby pleaded, and will be relied upon at the trial of this action. 17. The 3rd Defendant will also rely on the defence of Res judicata on the issue of declaration of ownership in respect of the premises in question and that defence is hereby specifically pleaded. In addition, the 3rd Defendant will also rely on the decision of Justice R.O. Rowland (as he then was) in suit No.K/378/82 on this matter, in respect of which no appeal had been lodged to date.”

The learned trial judge considered the above defence and learned counsel’s addresses, and ruled that his court had jurisdiction to try the case before him. After the exchange of pleadings parties adduced evidence, which were evaluated by the learned trial judge, who at the end of the day gave judgment in favour of the plaintiff declaring him the owner of the property in dispute. The 3rd defendant was dissatisfied with the decision, and so appealed to the Court of Appeal, and the plaintiff also cross-appealed. The Kaduna division of the Court of Appeal found the appeal meritorious and allowed it, concluding thus in the judgment:

“I therefore declare the judgment of the trial court in suit No.K/291/94 delivered on the 28th March, 1996 and all the proceedings relating to the said suit including the order as to costs a nullity and are hereby set aside. I strike out the claims of the 1st respondent before the Kano State High Court.”

Aggrieved by the above decision, the plaintiff appealed to this court on nine grounds of appeal, from which the appellant distilled six issues for determination in his brief of argument. As is the practice in this court learned counsel for the appellant and 1st – respondent exchanged briefs of argument, which were adopted at the hearing of the appeal. Four issues for determination were formulated in the 1st respondent’s brief of argument. The 2nd and 3rd respondents did not file a brief of argument. The issues in the appellant’s brief of argument are as follows:

“(1) Whether or not the decision of Kano High Court dated 22nd September, 1994 not appealed against by the 1st Respondent to the lower court was not conclusive of the issues raised and determined therein for which the lower court lacks jurisdiction to question its correctness.

(2) Whether or not the lower court had jurisdiction to question, challenge, or inquire into the validity of the act of the Military Governor of Kano State as the Appropriate Authority under Decree No.37 of 1968 in returning Appellant’s property to him through Exhibit D and instrument dated 25th September, 1979 before the coming into effect of the 1979 Constitution of Nigeria as Amended more so when none of the Respondents challenged or claimed in court the validity of the instruments returning the said property.

(3) Whether or not the lower court was right in erroneously holding that the Appellant’s cause of action as disclosed in his Amended Statement of Claim arose on 3rd June, 1977 and was a claim challenging-forfeiture of his property done in 1977 for which the High Court Kano lacked jurisdiction.

(4) Whether or not in view of the specific findings of the High Court Kano on Exhibit X series tendered by the 1st Respondent, Exhibit D the instrument returning Appellant’s property and Exhibit A the new Certificate of Occupancy issued to Appellant NOT appealed against by the 1st Respondent the lower court was right in embarking on a review of the decision and setting aside same and making a new finding that the property in dispute has not been returned to the Appellant.

(5) Whether or not the lower court was right in holding that the Appellant’s claim is an abuse of the process of court.

(6) Whether or not the lower court was right in striking out that part of the Appellant’s Brief relating to his Cross-Appeal and in failing to allow the Cross-Appeal on the interpre-tation of Order 6 Rule 7 of the Court of Appeal Rules 1981 as amended.”

The four issues raised for determination in the 1st respondent’s brief of argument are:

“(1) Whether in the circumstances of this case particularly having regard to the final judgment of the trial High Court, the learned justices of the lower court were not justified in allowing the Respondent’s grounds of appeal numbers 2, 4, 5, 6, 7, 8, 9, 11 and 12 contained in the Respondent’s notice of appeal dated the 28th day of March, 1996 filed at the lower court. (2) Whether the lower court was not justified in holding that the trial High Court lacked jurisdiction to entertain suit No. K/291/94 having regard to:

(a) The provision of Decree No.37 of 1968 ousting the jurisdiction of the court to entertain matters relating to title and forfeiture of Assets Order 197.7.

(b) The operation of the doctrine of res-judicata and

(c) The principle of abuse of court process regard being had to the existence of suit No.K378/82, filing of suit No.K/291/94 while suit No.K/M/63/94 on the same property between the same parties was pending before the same court.

3. Whether having regard to the public officers and other persons (forfeiture of Assets) Order 1977, otherwise known as Kano State Legal Notice No. 7 of 1977, the learned justices of the lower court were not right in holding that the letter dated 25th day of September, 1979 purportedly returning property situate at No. 59B Lamido Crescent covered by certificate of occupancy No.LKN/RES/82/1622, to the Appellant without more, cannot amount to a return of the property when a sober consideration of Exhibits D and XII together clearly shows that the property in dispute has not been returned to the appellant by the Government of Kano State.
4. Whether any breach of fair hearing principles was occasioned by the learned justices of the Court of Appeal in striking out the present appellant’s cross-appellant’s brief as it relates to the cross-appeal filed at the lower court. These later issues are in pari materia with the former issues. I will however adopt the appellant’s issues for determination starting with issue (1) for the treatment of this appeal. Learned counsel for the appellant has submitted that the lower court was wrong in refusing to allow and sustain the appellant’s notice of preliminary objection which challenged the 1st respondent’s grounds of appeal Nos. 2, 4, 5, 6, 7, 8, 9, 11 and 12, and issues Nos. 1, 2, 3, 5 and 6 formulated thereto being grounds of Appeal against the previous interlocutory ruling of High Court Kano delivered on 22/9/94 upon 1st respondent’s Motion which challenged the jurisdiction of the trial court to entertain the suit and also challenged the appellant’s suit as an abuse of the process of court.

The appellant in the lower court raised a notice of preliminary objection on the 1st respondent’s grounds of appeal Nos. (2) – (9) and (11) and (12) and the issues formulated to cover the said grounds of appeal. These grounds of appeal according to learned counsel were against the previous interlocutory ruling of the High Court Kano delivered on 22/9/94 upon 1st respondent’s motion which challenged the jurisdiction of the trial court to entertain the suit and also challenged the appellant’s suit as an abuse of the process of court. The ruling on that preliminary objection was an interlocutory decision which required leave of court, to appeal but which leave was not obtained. Then according to learned counsel for the appellant, the lower court erroneously held that since there was no appeal against the interlocutory ruling dated 22/9/94 before the lower court the objection to the competence of these grounds now included in the Notice of Appeal against the final judgment was not in order, as the 1st respondent had the option of whether to appeal against the ruling or against the final judgment. It is a fact that in the lower court where the 1st respondent appealed against the judgment of the trial court, the appellant who was then the 1st respondent raised a notice of preliminary objection as follows:- “That the grounds No. 2, 4, 5, 6, 7, 8, 9, 11 and 12 at pages 112-118 of the Record are incompetent and should be struck out on the ground that they are grounds flowing from and forming the grounds of appeal against the interlocutory Ruling of High Court Kano in this suit dated, 2nd September, 1994 and also forming the grounds of Appeal in the proposed Notice of Appeal of the Appellant at pages 188 – 192 of the Record which was not filed and No APPEAL was lodged against the Interlocutory Ruling of the aforesaid High Court Kano.”

The lower court in its judgment as per Obadina J.C.A. in concluding the discussion on the preliminary objection held thus:

“In the circumstances, it is my view that grounds 2, 4, 5, 6, 1, 9, 11 and 12 of the grounds of appeal are not grounds flowing and forming the grounds of appeal against the interlocutory ruling of the Kano State High Court dated 22/9/94. They are indeed grounds flowing and forming grounds of appeal against the final decision of the said court delivered on 28th March, 1996.” I think for a thorough and proper treatment of this issue, it is pertinent that I examine some of the salient grounds of appeal complained of, and to do so I will reproduce the grounds hereunder. They read:

“(ii) The learned trial judge erred in law and arrived at a wrong decision by holding that the decision of Kano State High Court in suit No. K/378/82 did not constitute res judicata to the present action. The learned trial judge erred in law and arrived at a wrong conclusion by holding that the Defendant in suit No. K7378/82 is not a Defendant in the present case.” It is a fact that when this suit was instituted in the High Court, Kano, the defendant, who is now the 1st respondent in this appeal moved an application that it be dismissed on the ground that it is an abuse of the process of court, and that the court lacked jurisdiction to grant the reliefs sought. In dismissing the application the learned trial judge made the following observation:

“I examined the Ruling of Justice Rowland in suit number K/378/82 – which has been attached to the affidavit in support of this application. I have noticed that the defendant in suit number K/378/82 is not a defendant in the instant case. While there was only one defendant in suit number K/378/82, there are now three defendants in this suit who were not parties to the former suit which was struck out not dismissed on ground of lack of jurisdiction. Since the former suit was merely struck out, it can definitely not be a bar to this action involving different parties.” The above is contained in the ruling of the trial High Court dated 22/9/94, but then the issue of res judicata cropped up again in the final judgment of the court, starting on page 76 of the printed record of proceedings, and particularly at page 89 of same where the learned trial judge reiterated his earlier stance thus:

“Nevertheless I am still of the considered opinion that the ruling of Justice R.O. Rowland in suit number K/33378/82 could not operate as an estoppel res judicatam in the sense that the 3rd Defendant was not a party to the said suit and the issues are not completely the same with the issues in the instant suit which is not a challenge on the power of the Military Governor of Kano State to make the forfeiture order as contained in legal notice No.7 of 1977. The said suit No.K/378/82 was merely struck out not dismissed, so that there is no bar to future litigation over the same subject matter in dispute, particularly as against the 3rd Defendant which titled (sic) to the property in dispute has not been established.”

Indeed the two observations on the two different occasions are very similar, that one can liken one to the other because the content of both of them portend the same. But then specifically, the words res judicata used in ground (2) of the appeal supra was. used in the final judgment, not the ruling, and since this is so, it can safely be assumed that the said ground (2) was raised from the final judgment. I understand the argument of learned counsel for the appellant that the said grounds (2) and (4) of appeal in the lower court have the same purport as the ones in the 1st respondent’s proposed notice of appeal which was exhibited to the application for leave to appeal. My view on this stance is that even if they are worded in verbatim, grounds (2) and (4)’s complaints were based on the decision contained in the final judgment. The fact however remains that even though the issue of jurisdiction or abuse of process of court dealt with in the interlocutory decision of the trial court resurfaced in the final judgment, it does not preclude the 1st respondent from complaining against the later decision, once the ground of appeal emanated from that later decision, which is exactly the position here. The notice of appeal as can be seen from the record of proceedings referred to the final decision of the trial court as the decision appealed against in the lower court, and as I have said earlier on the portion of the judgment appealed against is directly from the final judgment not the interlocutory decision, even though the contents of the grounds may be related. In this vein the necessity of seeking and obtaining leave to appeal in the lower court did not arise, as the notice and grounds of appeal were against the final judgment of the High Court, Kano, and they were filed within the time stipulated for appeal, to the Court of Appeal. The argument and authorities on the issue of the requirement of leave by the appellant/1st respondent by learned counsel for the appellant canvassed in its brief of argument, (though valid, if the appeal was against the interlocutory decision) is not relevant to this discussion. I therefore do not subscribe to it. In the light of the above reasoning I answer issue (1) supra in the affirmative, and dismiss the grounds of appeal (2) and (3) to which it is married, as I fail to see that the lower court erred. I will now proceed to issue (2) supra. In returning the property in controversy to the appellant a letter emanating from the Military Administrator’s office dated 25/9/79, and signed by the Military Administrator was addressed to the appellant. The letter reads:

“RETURN OF PROPERTY 59B LAMIDO CRESCENT KANO With reference to council decision in conclusion 14(4a) 21 dated 21st September, 1979, I am glad to inform you that after careful consideration of your property at No. 59B Lamido Crescent which was earlier confiscated as a result of a Commission of Inquiry and subsequent Government white paper on the Commission’s Report should be returned to you. Copies of this letter would be forwarded to the Cabinet office Kano, Ministry of Land and Survey Kano State, Solicitor-General Ministry of Justice Kano and the Supreme Headquarters Lagos for their information.”

According to learned counsel for the appellant the letter was copied to the Kano State Oil and Allied Products Ltd to whom the property was allocated upon forfeiture in 1977. He contended that the exercise of returning the property was equally done under Decree No.37 of 1968, the same law under which the publication of forfeiture of the property in 1977 “was made i.e. Investigation of Assets (Public Officers and Other Persons) Decree No. 37 of 1968. Learned counsel referred particularly to Section 12 of the Decree and argued that it is clear from that provision that the lower court lacked the competence to inquire into or question the validity of the act of the Military Governor of Kano-State in the manner and mode of returning the Appellant’s property in dispute to him as done through Exhibit D an instrument under his hand dated 25th September, 1979. He further argued that the lower court is also precluded by Section 6 (6) (d) of the 1979 Constitution as amended from inquiring into or pronouncing on the validity of any action or things done by the Military Governments from 15th January, 1966 up till 30th September, 1979. He placed reliance on the cases of F.S. Uwaifo v. Attorney-General of Bendel State & Ors (1982) Vol.2 FWL 246, and University of Ibadan v. Adamolekun (1967) 1 All MLR 213. Learned counsel for the Respondent, on the other hand has argued that the learned trial judge assumed jurisdiction to try the case on the basis that Decree No. 37 of 1968 had been repealed by Decree No. 105 of 1979 some two years after the property in dispute had been forfeited, and that the ouster clause contained in Section 12 of the Decree was no longer applicable.

Now, I will reproduce and examine the said Section 12 of Decree No. 37 supra, which reads:

“The validity of any direction, notice order given or made, or of any other thing whatsoever done, as the case may be, under this Decree, or under any enactment or other law repealed by this Decree, or the circum-stances under which such direction, notice or order has been given or made or other thing whatsoever done shall not be inquired into in any court of law, and accordingly nothing in the provisions of chapter III of the Constitution of the Federation shall apply in relation to any matter arising out of this Decree or out of any enactment or other law repealed by this Decree.”

The above provision is very clear on the jurisdiction of a court of law on any action taken in pursuance of the action taken under the Decree. Perhaps, I should also reproduce provisions of this Decree that are relevant to this discussion. The preliminary part of the Decree states the following:

“1. (1) There shall be, for the purposes of:

(a) investigation into the assets of public officers, whether or not at the commencement of this Decree such officers have ceased to be public officers;

(b) directing inquiries under this Decree into those assets if considered in the public interest; and

(c) taking such further steps as may be authorized under this Decree, the several authorities hereafter referred to in this Decree in respect of matters within the scope of their authority as the appropriate authority. Then Section 8 of the said Decree states:

“8. (1) Without prejudice to any other provision of this Decree, the appropriate authority may

(2) Where the appropriate authority is satisfied that any person has been corruptly or improperly enriched by a public officer, the provisions of the Decree in relation to the forfeiture of assets and liability to make repatriations shall apply with necessary modifications in respect of that person as they apply in respect of a public officer.

(3) The appropriate authority may make an order for the forfeiture of any assets of any public officer or other person, no matter how or whensoever acquired, if the assets whereby such public officer or other person has corruptly or improperly enriched himself or any other person, or whereby he has been so enriched, are no longer subsisting either at all or in such form that they could have been made the subject of an order of forfeiture under subsection (1) or (2) of this section.” Now, I will go to the history of forfeiture of the property in dispute and its purported return. It is on record that the property was forfeited to Kano State Oil and Allied products limited in pursuance to the Investigation of Assets (Public Officers and other Persons) Decress, 1968, as is evidenced in Exhibit ‘V’. By virtue of Exhibit ‘V’, a Kano State legal Notice No. 7 of 1977, and described as the ‘Public Officers and other Persons (Forfeiture of Assets) Order 1977’, the property was vested in the Kano State Oil and Allied Products Limited as follows:-

“2. (1) The shares and landed property the particulars whereof are specified in the first column of the schedule, being assets improperly acquired by the persons respectively named in the second column thereof, are hereby forfeited to the persons respectively specified in the third column thereof and shall by virtue of this order and without any further assurance vest in those persons specified in the said column free from all encumbrances.”

Then on 25 September, 1979 the said property was returned to the plaintiff/appellant vide Exhibit ‘D’. By virtue of Section 12 of the ‘Investigation of Assets (Public Officers and other Persons) Decree,’ supra (already reproduced), all the parties concerned in Exhibit ‘V’ could not have gone to court to challenge the forfeiture for they were forbidden from doing so. But then in 1979, the whole decree supra of 1968 was repealed vide Decree No.105 of 1979, which states thus: inter alia:

“1. Subject to section 6 of – the Interpretation Act 1964 (which relates to the effect of repeals expiration and lapsing of enactments):

(a) the enactment set out in schedule 1 of this Decree shall cease to have effect upon the coming into force of the Constitution of the Federal Republic of Nigeria 1979”.

The applicable enactment here is as stated in (8) of the 1st schedule referred to above. The said section 6 of the Interpretation Act 1964 referred to in Section 1 of the 105 Decree supra states as follows:- “6(1) The repeal of an enactment shall not:

(a) revive anything not in force or existing at the time when the repeal takes effect;

(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment;

(c) affect any right, privilege, obligation or liability accrued or incurred under the enactment;

(d) Affect any penalty, forfeiture or punishment incurred in respect of any offence committed under the enactment;

(e) Affect any investigation, legal proceeding or remedy in respect of any such right, privilege obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as the enactment has not been repealed.

(2) When an enactment expires, lapses or otherwise ceases to have effect, the provisions of sub section (1) of this section shall apply as if the enactment had been repealed.”

I think the position of the provisions of Decree No.37 of the 1968 vis-à-vis their repeal by Decree No.105 of 1979 has been clarified by the provision of the Interpretation Act reproduced supra. By virtue of the Interpretation Act the ouster clause in section (12) of the Decree No. 37 of 1968 under which the forfeiture of the property in controversy was made, went with the entirety of the provisions, and it will be wrong to assume that just because that law had been repealed, the ouster clause that prevented a party from seeking legal remedy will now be revived in order to vest a court with jurisdiction. Whatever obtained as at the time the Decree No.37 of 1968 had life will continue up to the point of repeal, and it cannot be said that the repeal of that law would two years after the act done there under negatively affect the act done when the Decree was still alive and in existence. When an act is repealed it is taken as though it never existed, except the actions which were commenced, executed and concluded at the time the act was in existence. See Suretees v. Ellison 9 B & C 750 and Kay v. Goodwin (1830) 6 Bing 756. I will now consider the provision of section 6 (6) (d) of the 1979 Constitution which learned counsel for the appellant relied upon on the preclusion of the lower court from enquiry or pronouncing on the validity of any action or things done by the Military Governments from 15th January, 1966 up till 30th September, 1979. This provision of the supra Constitution reads as follows:

“6. (1) the judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation. (6) The judicial powers vested in accordance with the foregoing provisions of this section – (d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.”

Now, it seems to me that by canvassing the argument learned counsel for the appellant has canvassed supra, he is in retrospect alluding that the cause of action accrued from when the property in controversy was returned to the appellant i.e. from when Exhibit ‘D’ was written. I say so because if he was postulating the opposite i.e. that the cause of action accrued when the property was seized, then by instituting the action in court, the appellant was equally guilty of the same wrong action of approaching the trial court to question and determine any issue or question as to the competence of the Military Government to seize the property. That very seizure/forfeiture came within the ambit of action envisaged by section 6 (6) (d) supra. In that vein, it could be said that the trial court was equally not competent to inquire into or question the validity of the act of the Military Government. However, since the appellant’s argument is premised on the fact that the cause of action accrued from when the property was returned to him, I will confine myself to this fact, for the time being, and consider the conclusion of the lead judgment of Sowemimo, JSC (as he then was) in the Uwaifo’s case supra, which reads:- “Reference by counsel to section 6 of the Interpretation Act is irrelevant. The main point which this appeal must be decided upon, is what is the effect of section 6 of the Constitution of 1979 especially of section 6 sub section 6(d). The effect of the forfeiture of the appellant’s properties, having regard to the existing laws, viz, Decree No. 10 of 1976, Edict No. 10 of 1977 and Decree No.18 of 1977 and section 6 subsection 6(d) of the 1979 Constitution reads: That disposes finally of all the extensive arguments of learned counsel for the appellant and the appeal.

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SC. 110/2001