Alhaji Momodu Alabi & Ors. V. Kwara State Polytechnic & Anor. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA J.C.A. (Delivering the Leading Judgment)

Appellants applied as per motion filed on 1/7/2008 for extension of time to assemble and/or compile the Record of Proceedings to be used in this appeal and to deem as property compiled and assembled the Exhibit ‘A’ which they had assembled and/or compiled for the hearing and determination of their appeal in this case.

The application was granted on 18/11/2008 and so the Record of Appeal filed by the Appellants was deemed duly filed on the said 18/11/2008, wherein Appellants’ notice and grounds of appeal dated 29/6/2006, were disclosed. Appellants thereafter obtained leave to amend their Notice of Grounds of Appeal, and to raise fresh issue, that was on 9/2/2009 and thereafter, they filed their Abandoned Notice and grounds of Appeal as well as their Brief of arguments on 10/2/2009.

The appeal is against the Ruling of Kwara State High Court in Suit No. KWS/95/2005, delivered on 19/6/2007, by Honourable Justice H.O. Ayayi. In the Ruling, the learned trial judge had dismissed the motion challenging her jurisdiction to adjudicate upon the matter – a land case. By a motion filed on 9/11/2005 at the lower Court, the 1st, 3rd, 5th, 6th and 10th Defendants (1st to 5th Appellants, respectively herein) had prayed the lower Court for an Order dismissing the entire suit, because (according to them) or its incompetence and invalidity. They had listed the following as the particulars:

“(1) The claimant/respondent has no locus standi, pursuant to the Polytechnic Law of Kwara State, 1994, to institute this action.

(2) The claimant/respondent neither attach nor plead or give any evidence of any gazette or Governor’s order or any, instrument whatsoever, pursuant to the Polytechnic Law showing that all the defendants/applicants’ land in their respective communities had been vested on the claimant/respondent.

(3) The pleaded survey plan on which the claimant/respondent premised this action that is, Exhibit A attached to the Motion paper, not being a registrable instrument, is merely a proposal of intent5 and not a survey plan pursuant to the provisions of the survey Law of then Northern Nigeria, 1963, applicable in Kwara State in 1973 when the proposed survey was made.

(4) This action cannot be competently instituted without prior compliance with the conditions precedent, and as provided for in the Polytechnic Law of Kwara State.”

The main case before the trial Court in the Suit No. KWS/95/2005, filed by Kwara State Polytechnic as claimant on 20/7/2005, had sought the following reliefs.

“(a) A declaration that the claimant has an unfettered title to the piece of land measuring 21 square miles along Jebba Road, Ilorin, where the Kwara State Polytechnic permanent site is located.

(b) A declaration that all the customary land holders/occupiers have been adequately compensated for by the Kwara State Government, since 1974.

(c) A permanent injunction restraining the Defendants, their servants, agents privies and all these claiming through them from carrying out any further development on the said land belonging to the claimant.

(d) A permanent injunction restraining the defendants, their servants, agents, privies and all those claiming through them from any longer tampering with claimant’s use of their said land or preventing them from erecting structures of her own on the said land covered by 21 square miles.

(e) An Order of the Honourable Court directing the defendants, their servants, agents, privies and all those claiming through them to immediately vacate all the illegal structures developed or undergoing construction on the claimant’s land covered by 21 square miles.