Attorney-general Of Nasarawa State V. Attorney-general Of Plateau State (2012)
LAWGLOBAL HUB Lead Judgment Report
A. FABIYI, J.S.C.
This suit was filed in this court pursuant to its original jurisdiction as conferred on it by Section 232 of the Constitution of the Federal Republic of Nigeria, 1999. Each Attorney-General is representing his State, in the main.
The plaintiff filed the ‘Civil Summons’ against the defendant on 25th July, 2007. As contained in paragraph 21 of the attached Statement of Claim, the plaintiff’s claims read thus: –
“21. Whereupon the plaintiff claims against the defendant as follows:-
(1) A Declaration that by virtue of the State (Creation and Transitional Provisions) Act 1996, the Reports of the Plateau State and Nasarawa States’ Joint Committee Appraisal of Assets and Liabilities, and the Agreement reached between the parties to this suit on 6th April, 1998, Nasarawa State is the beneficial owner of the properties listed below situate in Plateau State:-
(a) No. 31 Ibrahim Taiwo Road, Jos
(b) Tourism Corporation Headquarters, Jos
(c) Bus Terminus Tafewa Balewa Road, Jos
(d) No. 3 Old Bukuru Road
(e) No. 3 Hospital place
(f) No. 45 NNDC Quarters
(g) No. 43 NNDC Quarters
(h) No. 4 Liberty Boulevard, Jos
(i) No. 27 Ibrahim Taiwo Road, Jos
(j) No. 3 Rest House Road, Jos
(k) No. 2 Commissioners Quarters, Miango Road, Jos
(l) No. 6 Commissioners Quarters Miango Road, Jos; and
(m) No. 3, Aliyu Makama Road, Jos.
(2) An Order of this Honourable court directing the defendant to hand over all title documents relating to the said properties or, to otherwise transfer the said properties to the plaintiff forthwith.
(3) An Order of perpetual injunction restraining the defendant, its servants, agents, officers and or privies from interfering with the plaintiffs right to peaceful occupation and enjoyment of the properties afore-listed.
(4) Costs of this action.”
In support of his case, the plaintiff filed an affidavit of ten (10) paragraphs with annexures attached to same. It was deposed to by Isaac Adebojale Aderogba, a legal practitioner in the law firm of the plaintiff s counsel.
The facts of the matter as stated on behalf of the plaintiff are that Nasarawa State constituted part of old Plateau State until it was created as a State of the Federal Republic of Nigeria by virtue of Section 1 (1) of the States (Creation and Transitional Provisions) Act 36 of 1996 on 1st October, 1996. As provided in Section 7(1) and (2) of the Act, all immovable properties and chattels which, immediately before the commencement of the Act, were situated in the area comprised in the new Nasarawa State and held by a body corporate directly established by law/edict of the old Plateau State vest in the plaintiff.
After the creation of the plaintiff as a State, the Federal Government set up an Assets and Liabilities Sharing Committee for Plateau and Nasarawa States. The Committee came up with a formular to be adopted in the sharing of the assets of the old Plateau State and put same at 53% and 47% to Plateau State and Nasarawa State respectively. This fact is contained in Exhibit NAS 1 – the Summary of Execution of Government White Paper on the Assets and Liabilities sharing between the two States.
A joint committee was set up by the two States and inaugurated on October 21st, 1996 to carry out an appraisal of the assets and liabilities. The joint committee worked in line with the formula given it by the Assets and Liabilities/Sharing Committee and submitted a report to the two States wherein it made recommendations on, how the assets and liabilities were to be shared.
On 19th March, 1998 officials of the two States held a meeting under the chairmanship of General Sani Abacha the then Head of State and Commander in Chief of the armed Forces (HoS and CinC). At that meeting, the Military Administrator of the defendant stated the resolve of the defendant to release the properties in contention to the plaintiff. The minutes of the meeting of 19th March, 1998 is contained in Exhibit NAS 3.
In consonance with the above, the two States entered into an agreement dated 9th April, 1998 whereby some landed properties, which include the ones being claimed herein, were handed over by Plateau State to Nasarawa State. The said agreement is Exhibit NAS 4.
The defendant gave vacant possession of some of the immovable properties listed in Exhibit NAS 4 but refused to yield vacant possession of –
- No. 31 Ibrahini Taiwo Road, Jos as Government Lodge.
- Tourism Corporation Headquarters Jos; and
- Bus Terminus Tafewa Balewa Road, Jos.
The plaintiff maintained that all efforts to recover or secure those properties proved abortive. Instead of giving possession of the properties, the defendant, in its letter of 5th November, 2004 (Exhibit NAS 9) contended that the agreement entered into by the two States – Exhibit NAS 4 was made in error. The defendant further took steps to recover possession of all the landed properties located within Plateau State listed in Exhibit NAS 4 from the plaintiff by issuing notice of intention to recover premises to the plaintiff’s tenants. The defendant, in essence, repudiated Exhibit NAS 4 extant in his letter – Exhibit NAS 9.
By Exhibit NAS 10, the defendant notified the plaintiff of its intention to recover all landed properties within Plateau State placing reliance on the decision of this court in Attorney-General Plateau State v. Attorney-General Nasarawa State (2005) 9 NWLR (Pt. 930) 421.
The defendant’s statement of defence which contains 15 paragraphs was filed on 6th September, 2007. A Notice of Preliminary Objection was also filed on 2nd November, 2007.
The defendant maintained that the defence rest on salient issues to wit: while the defendant admits the assertion in paragraphs 1-7 of the plaintiff’s statement of claim, the defendant denies other averments- and contended that the joint committee must work in line with the formula given to it except the insertion of paragraph ‘Q’ which’ contradicted paragraph ‘P’ of the sharing formula which says – ‘each State should take over in its entirety all Government buildings, offices and staff quarters located within its own territory. The properties Nos. 1-12 being claimed by the plaintiff are Government buildings, offices and staff quarters located in the defendant’s territory. The defendant further contended that from the minutes of the meeting with the then Head of State on 19th March, 1998, the ten residential houses and two offices being claimed by the plaintiff were only released temporarily to serve as transit camp to the plaintiff’s then Military Administrator. The defendant maintained that there is no house with number 45 NNDC Quarters as the numbering of NNDC Quarters ends with 43 as the indication of No. 45 on the Notice to Quit was an error on the part of the defendant’s counsel.
The defendant also denied the assertion that the then Military Administrator of Plateau State agreed to share ten residential houses and two office blocks to the plaintiff as same is contrary to the sharing formula, undemocratic and partial. The defendant felt that the position is confirmed by the chairman on buildings committee who told the sub-committee that they had no business in the sharing of houses and yet, the said committee went ahead and shared ten residential houses and two offices to the plaintiff contrary to the sharing formula which, gave the plaintiff undue advantage over the defendant. He felt that same amounted to approbating and reprobating at the same time.
The defendant maintained that the plaintiff placed reliance on Exhibit NAS 4 while on his part, it is contended that the said agreement in so far as it relates to properties within the defendant’s territory is contrary to paragraph ‘P’ of the sharing formula which to that extant is null and void.
The defendant maintained that based on the foregoing, he took necessary steps to eject persons who are in illegal occupation of the defendant’s premises, He feels that the position is fortified by the decision of this court in the case of Attorney-General Plateau State v. Attorney-General Nasarawa State (2005) ALL FWLR (Pt.266) 1227 AT 1237 C – F.
On 23rd January, 2012 when this case was heard, learned counsel on both sides of the divide adopted and relied on their respective brief of argument, Learned counsel for the plaintiff urged that the plaintiff s claims be granted. On the other hand, learned counsel for the defendant urged that the plaintiff’s claims should be dismissed.
Two issues were submitted on behalf of the plaintiff for determination. They read as follows:-
“1. Whether having regard to the provisions of section 7(1) of the State (Creation and Transitional Provisions) Act 1996, the meeting of 19th March, 1998 with the then Head of State and Commander-in-chief on the implementation of shared assets between Nasarawa and Plateau States (as evidenced in Exhibit NAS 3), and, the entire facts of this case” the defendant is not estopped from contesting the agreement dated 6th April, 1998 i.e. Exhibit NAS 4 or any portion thereof, which tranferred “certain – properties including buildings within Jos metropolis to the plaintiff.
- Whether the plaintiff is entitled to the reliefs sought.”
On behalf of the defendant, two issues were also couched for determination. They read as follows:-
“(i). Whether having regards to the clear and unambiguous provisions of paragraph ‘P’ of the Extract from the Report of the Assets and Liabilities Sharing Committee same being fortified by this Honourable Court’s decision in Attorney-General of Plateau State v. Attorney-General Nasarawa State (2005) All FWLR -part 266 page 1227 at 1237 C-F the plaintiff is entitled to the reliefs sought.
(ii) Whether the plaintiff is entitled to claim the properties listed in Exhibit 4 attached to its affidavit when same was reached ultra vires the provisions of the State Creation and Transitional Provisions) Decree, 1976 (sic) for the ownership of the properties being claimed.”
Arguing issue No.1, it was observed by learned counsel for the plaintiff that the defendant is not contesting the entire properties released to the plaintiff in Exhibit NAS 4. What the defendant is contesting are those landed properties which are located in Jos metropolis within the territory of the defendant. Learned counsel maintained that Nasarawa State is one of the States created in 1996 with its enabling law being the States (Creation and Transitional Provisions) Act 1996. He referred to section 7(1) of the Act which has been considered by this court in the case of Attorney-General Ondo State v. Attorney-General Ekiti State (2001) 17 NWLR (Pt.743) 706 at 756-757. He submitted that nothing in section 7 of the Act vests anything in the defendant.
Learned counsel submitted that in this case, the sharing of the assets and liabilities of the old Plateau State was done with the active participation of the defendant and its officials. The official position of the defendant was stated by its then Military Administrator, Col. I. Shuaibu in Exhibit NAS 3. Thereafter, the parties entered into a formal agreement – Exhibit NAS 4. Learned counsel stressed that the agreement is consistent with the spirit and letter of the formula of the Assets and Liabilities sharing committee for Plateau and Nasarawa States which followed the model employed in the case of Attorney-General Ondo State v. Attorney-General Ekiti State (supra).
Learned counsel observed that the defendant desires to resile from some of the contents of the agreement contained in Exhibit NAS 4 which had long been settled. The defendant claimed that the agreement was entered into in error. Learned counsel submitted that the defendant is estopped by law from repudiating or denying the agreement or any portion thereof. He maintained that the principle of Pacta sunt servanda applies to this case. He felt that agreement which is neither contrary to law nor fraudulently entered into must be adhered to in every manner and in every detail. He cited Sonnar Ltd. v. Nordind (1987) 4 NWLR (Pt. 66) 520 at 543.
Learned counsel opined that the defendant appeared to be labouring under the impression that because the properties are in Jos, those properties belong to it naturally. He again submitted that there is nothing in section 7(1) of the Act that vested anything in the defendant. He observed that it is a cardinal principle of statutory interpretation that where the words of a particular statute are plain and free from ambiguity, the statute should be accorded or given its ordinary plain and grammatical meaning. He cited Attorney-General Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 557; National Bank of Nigeria Ltd. v. Weiden Co. Nig. Ltd. (1996) 8 NWLR (Pt. 465) 150 at 165; Shell Petroleum Development Co. (Nig.) Ltd. v. Federal Board of Inland Revenue (1996) 8 NWLR (Pt. 466) 256-at 285. Learned counsel maintained that looking at the ordinary words of section 7 of the Act, it is plain and obvious that the section did not vest anything in the defendant. He further maintained that in view of the agreement reached by the parties, it is wrong for the defendant to proceed to lay claim to those properties located in Jos simply because of territorial advantage. He opined that the philosophy underlying the ownership of the assets of a dissolved State is that save for the one vested by section 7, all other assets remain joint properties of the successor States, until shared by them. He cited Olowoofoyeku v. Attorney-General Oyo State (1996) 10 NWLR (Pt.477) 190 at 219, 222-223, Attorney-General Ondo State v. Attorney-General Ekiti State (supra) at page 784.
Learned counsel finally observed that the defendant appeared to be basing his actions on the decision of this court in Attorney-General Plateau State v. Attorney-General Nasarawa State (supra). He submitted that the issue in that case is not remotely connected with the facts in the case. He pointed it out that the issue that came up for determination in the case and resolved by this court was whether debts outstanding on projects executed by the old Plateau State, that were located in Nasarawa State and which had become vested in Nasarawa State by virtue of section 7 (1) of the Act were to be paid by Plateau State. This court held that the liability is that of Nasarawa State.
Learned counsel urged that this issue should be resolved in favour of the plaintiff. He urged the court to hold that the defendant is estopped from denying or contesting the agreement dated 6th April, 1988 which inter alia, transferred the properties being claimed to the plaintiff.
On behalf of the defendant, it was observed that the properties claimed by the plaintiff, by virtue of their location within the territory of the defendant and in consonance with the provision of paragraph ‘P’ of the Committee’s Report, ownership of same vests in the defendant. Learned counsel felt that where the provisions of a statute or a document are clear and unambiguous, the court is enjoined to give it, it’s “natural and ordinary meaning and not to resort to any external aid in a bid to” construe same. Learned counsel cited the cases of Basinco. v. Woermann – Line (2009) 6 SCNJ 222 at 240; Attorney-General Plateau State v. Attorney-General Nasarawa State (2005) All FWLR (Pt. 266) 1227 at 1237 C-F.
Learned counsel placed heavy reliance on the case of Attorney-General Plateau State v. Attorney-
General Nasarawa State; presumably to put up a plea of res judicata and urged on us not to depart from the decision therein. He cited the cases of Alao v. ACB Ltd. (2000) FWLR (Pt. 11) 1358 at 1373 C-G; Adisa v. Oyinwola (2000) FWLR (Pt. 8) 1349 at 1374-1375 ‘H’.
Learned counsel submitted that the signing of Exhibit NAS 4 by the then Military Administrator was done in error and in violation of guidelines and same rendered the agreement null and void in law.
He cited the case of Odu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 535) 1.
Learned counsel urged that the two issues be resolved in favour of the defendant. He urged that the plaintiff’s claim be dismissed with substantial costs to the defendant.
The enabling law in respect of this matter is the States (Creation and Transitional Provisions) Act, 1996. Section 7 (1) of the Act is of paramount importance. It provides as follows:-
“7 (1) Subject to subsection (2) of this section any immovable property and any chattel which, immediately before the commencement of this Decree, was situate in the area comprised of a new State created by this Decree and was held by a body corporate directly established by an Edict of the Military Administrator of the State out of which the new State is created or an instrument having effect as such Edict shall, by virtue of this section, vest in the Military Administrator of the new State concerned and be held by him for the purpose of the Government of that State and no compensation shall be payable in respect of any transfer effected by this section.”
The above provision has been interpreted by this court in the case of Attorney-General Ondo State v. Attorney-General Ekiti State (supra). I am at one with the views ably expressed therein. It is basic that where the words of a statute are plain and free from ambiguity, same should be given their ordinary grammatical meaning. The initial transfer provided by section 7(1) enures only to the benefit of the new State – the plaintiff herein. There is no provision anywhere in the law that the plaintiff is not entitled to any other immovable property or chattel elsewhere apart from those provided for under section 7(1). One should not read into the Act what is not provided therein.I feel that any property not covered by section 7(1) remains the joint property of Plateau State and Nasarawa State. It was with this in view that the Federal Government set up the assets sharing committee.
It appears to me that learned counsel for the defendant failed to realize the above position of the law. All arguments made on behalf of the defendant in laying ownership to the properties shared to the plaintiff in Jos metropolis – defendant’s territory failed to hit the target.
Its extant in Exhibit NAS 3 – minutes of meeting held with the then Head of State and Commander-In-Chief attended by officials of both States that the Military Administrator of both States made their representations known. As contained on page 5 of Exhibit NAS 3, Plateau State position goes as follows:-
“The MILAD said in the circumstance and in fairness to both parties and in the spirit of equity, fairness, justice, brotherliness and conformity with the Federal Government directive that Plateau State should release to Nasarawa:
a. A Government Lodge.
b. Two (2) blocks of offices
c. Ten (10) residential quarters.
The – following are hereby released to Nasarawa State as required:
(1) No. 31 Ibrahim Taiwo Road as Governors Lodge in place of Tudun Wada Government Lodge which should be retained by Plateau State as offices for Bureau for Political and Local Government Administration and for obvious reasons.
(2) Two (2) blocks of offices released thus:
(i) Plateau State – Tourism Corporation office along Yakubu Gowon Way, Jos.
(ii) Bus Terminal on Tafewa Balewa Street, Jos.
(3) Ten (10) residential quarters are released as follows:-
(i) No.3 Old Bukuru Road
(iii) No.4 Liberty Boulevard (White House)
(iv) No. 43 NNDC Quarters
(v) No. 45 NDDC Quarters
(vi) No. 27 Ibrahim Taiwo Road
(vii) No.3 Rest House Road
(viii) No. 2 Commissioner Quarters
(ix) No. 6 Commissioners Quarters
(x) No. 3 Aliyu Makama Road.”
On page 10 of Exhibit NAS 3, paragraph 53 of the minutes goes as follows:-
“53 Finally, the HoS and CinC directed that the 2 MILADS must be physically involved in the sharing and transferring of items to the States and to report back to him in 45 days that all decisions have been implemented.”
The above minutes is dated 26th March, 1998. With due precision, it seems that the above directive led to the agreement in Exhibit NAS 4 which was personally signed by the two Military Administrators of both States. The agreement which is contained in Exhibit NAS 4 reads as follows:-
”SHARING OF LANDED PROPERTY BETWEEN PLATEAU AND NASARAWA STATES
An Agreement made this 6th day of April, 1998 BETWEEN, Plateau and Nasarawa State Governments on the sharing of landed property located in Jos, Kaduna and Lagos.
Nasarawa State was created out of Plateau State which creation is gazetted vide Decree No. 36 of 1996 States (Creation Transitional Provisions) Decree 1996.
The Federal Government set up an Asset Sharing Implementation Committee headed – by Commodore S. A. Afolayan (hereinafter referred to as the Federal Committee) shared the Assets and Liabilities between the two States
The Federal Committee and representatives of Plateau and Nasarawa States met, deliberated and agreed that certain office blocks and residential houses in Plateau State be given to Nasarawa State as specified in the schedule hereto.
NOW IT IS HEREBY AGREED AS FOLLOWS:
- The Plateau State gives and Nasarawa State takes all the landed property listed in the schedule hereto.
- The two States shall co-operate with each other to ensure a smooth hand over and take over of the property.
- That Nasarawa State may through a separate agreement let any or some of its property to Plateau State on such terms and condition as may the agreed upon by the parties.
- That on signing of this agreement, the titles of the property shall vest in Nasarawa State without any further assurance. Nasarawa State shall thereafter perfect the titles with the Bureau for Lands Survey and Town Planning.
- BUILDINGS WITHIN JOS METROPOLIS
(i) No.31 Ibrahim Taiwo Road (MILAD’S Guest House)
(ii) No.3 old Bukuru Road
(iii) No.3 Hospital Place
(iv) No. 45 NNDC Quarters
(v) No. 43 NNDC Quarters
(vi) No.4 Liberty Boulevard (White House)
(vii) No. 27 Ibrahim Taiwo Road
(viii) No.3 Rest House Road, Jos.
(ix) No.2 Commissioners Quarter Miango Road
(x) No.6 Commissioner Quarters Miango Road
(xi) No.3 Aliyu Makama Road, Jos.
OFFICE BLOCKS ACCOMMODATION
(i) Tourism Corporation Head, Quarters, Jos.
(ii) Bus Terminal Tafawa Balewa Road, Jos.
- LAGOS LIASON OFFICE
The Underlisted office block were shared to Nasarawa State:-
- Plateau Liaison Office (Block A)
- Plateau Liaison Office (Block B)
- No.31 Oluwole Street Apapa, Lagos.
KADUNA LIASON OFFICE
- No. 23 Katuru Road
- No. 12 Lamido Road
- No.5 Fufura Road
- No. 56 Ribadu Road
- No.7 Fufura Road.
IN WITNESS whereof the parties hereto have set their hands the day and year first above written.
PLATEAU STATE NASARAWA STATE
SIGNED BY SIGNED BY
……………………. ……………………Col. H. I. Shuaibu Wing Commander
Abdulahi Ibrahim Abudulahi Ibrahim
Military Administrator Military Administrator
of Plateau State of Nasarawa State
For and on behalf of the For and on behalf of the
Plateau State Nasarawa State
In the Presence of In the Presence of
Name: Susan R. Janfa Name: Husaini Z.
(Mrs.) mni Akwanga
Signature …………… Signature…………..
Designation SSG/HCS Designation SSG
Plateau State Nasarawa State
Date: 6th April, 1998. Date: 6th April, 1998.”
Despite the above agreement entered into by the then Military Administrators of the two States, learned counsel for the defendant, with the circumstance surrounding the agreement still maintained that same was entered into in error, and that, the agreement is null and void. The assertion beats my imagination as it runs against the current of logic and the applicable law.
The plaintiff has contended that the defendant is estopped from denying the validity of Exhibit NAS 4 and from backing out from same. I need to try and show the defendant the futility of the stance posed by him.
There is the doctrine of estoppel by contract. This is a bar that prevents a person from denying a term, fact or performance arising from a contract that the person has entered into. Blacks Law Dictionary/Nineth Edition page 630.
There is what is referred to as equitable estoppel. This is a doctrine preventing one party form taking unfair advantage of another when through false language or conduct, the person to be estopped has induced another person to act in a certain way, with the result that the other person has been injured in some way. It is termed estoppel by conduct or estoppel in pais.
I need to further remind the defendant that Section 151 of the Evidence Act clearly incorporates the doctrine of equitable estoppel. In Ude v. Nwara & Anr. (1993) 2 NWLR (Pt. 278) 638 at 662, this court pronounced that by operation of the rule of estoppel a man is not allowed to blow hot and cold, to affirm at one time and deny at the other, or, as it said to approbate- and reprobate. See: also Joe Iga & Ors. v. Ezekiel Amakiri & Ors. (1978) 11 SC 11; (1976) 11 SC (Reprint) 1.
There is also the principle of Pacta Sunt Servanda which means agreements of a party to a contract which are not fraudulent are to be observed. Same should be honoured by gentlemen. This should apply more especially in the art of governance of States as herein even where there is a change of the Chief Executive. Such will provide the much needed requisite atmosphere for peace, tranquility and concord between the two sister States.
In my opinion, it is not right for the defendant to attempt to back out from the agreement in Exhibit NAS 4. The defendant cannot retrace his steps in the prevailing circumstance, Estoppel, as discussed above, operates against the defendant. He is estopped from backing out from the terms of the agreement in Exhibit NAS 4. See: Attorney-General Rivers State State v. Attorney-General Akwa Ibom State (2011) 3 SC 1 at 33, 138.
The defendant tried to liken this case with that in Attorney-General Plateau State v. Attorney-General Nasarawa State (supra). A clear reading of the case shows that the issue therein is not remotely connected with the facts of this case. The issue that came up for determination in that case was whether debts outstanding on projects executed by the old Plateau – State that were located in Nasarawa State and which became vested in the new Nasarawa State by virtue of section 7 (1) of the Act were to be paid by Plateau State. This court held that the liability is that of Nasarawa State. Same has nothing to do with the facts of the present action which have to do with sharing of assets located in Jos Metropolis. The defendant desires to rely on a plea of res judicata which means a thing adjudged between the same parties or their privies by a competent court. It has been shown that the subject matter in his ‘joker’ is not the same as in this present case.
Lastly, the counsel for the defendant put up a puerile show by saying that No.45 NNDC Quarters does not exist. Learned counsel maintained that the number surfaced as a result of the mistake of their counsel who drafted their ill-tuned Notice to quit. Such a ploy is most unbecoming of a State as it can be likened to a game of hide and seek. The defendant both in Exhibits NAS 3 and NAS 4 – the agreement signed by the then Military Administrator and witnessed by the Secretary to State Government/Head of Service on 6th April, 1998, have the stated number inserted in them. No reasonable court of record will take the defendant seriously in his recent stance that No. 45 NDDC Quarters does not exist as that will be making a mockery of their past highly placed officials. The defendant should trace No.45 NDDC Quarters carefully and locate it.
The plaintiff has directly by evidence and the applicable law proved the case properly against the defendant. As per paragraph 21 (1) (2) and (3) of the Statement of Claim quoted at the beginning of this exercise, judgment is hereby entered in favour of the plaintiff against the defendant. The reliefs therein are accordingly granted. No costs awarded for the sake of peace, cordiality and concord between the two sister States which should mend their fences and put this matter behind them once and for all in the interest of generations yet unborn.