Emeka O. Kanu V. Sweet Asuzu & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of Abia State High Court, Aba Division contained in the Judgment of NWANOSIKE, J. delivered on 30th day of March, 2009.

The precursor to this appeal was the issuance of Writ of Summons at the instance of the Appellant on 3rd day of March, 2008 against the Respondents as Defendants at the said Division of the Court below claiming against the said Respondents jointly and severally as follows:

“1. A declaration that the Temporary Occupancy Licence dated 13/9/93 granted to the Plaintiff’s predecessor-in-title and acquired by the Plaintiff by a Transfer receipt dated 10th November, 1993, is valid and subsisting and has not been revoked.

2. A declaration that the Plaintiff is to the exclusion of every other person the Lawful Licensee of that piece or parcel of Land situate at Aba Railway Station measuring 55M x 33M and more particularly shown on Plan No. EB 884 attached to a TOL dated to the Plaintiff’s predecessor-in-title Mr. James N. Chigbundu.
3. An Order of perpetual Injunction restraining the Defendants, their Servants, Workers, Privies and Agents from further trespassing on the Plaintiff’s Land.
4. N100,000,000.00 (One Hundred Million Naira) as general damages against the Defendants for their acts of trespass on the Plaintiff’s Land.”

The said reliefs were replicated in paragraph 13 of the Statement of Claim that accompanied the aforesaid Writ of Summons.

By a Motion on Notice dated the 13th day of October, 2008 filed on the same date the 1st Defendant now 1st Respondent to this appeal sought for:

“(1) An Order Dismissing or striking out this Suit for want of jurisdiction in that the proper defendants are not before the Court.

(2) An Order Dismissing this Suit for want of party jurisdiction, the 2nd defendant being an agency of the Federal Government of Nigeria AND OR.

(3) An Order striking out the names of the Defendants as been improperly joined.”

The Motion was supported by a – 12 paragraph Affidavit and Exhibits attached. There was a Counter Affidavit from the Plaintiff now Appellant.

The application was duly heard and the Learned Trial Judge delivered his Judgment on the application on 30th March, 2009 and held as follows:

“And applying the above cases to the present one, the second defendant was created by statute to carry out its functions as a Railway Corporation in line with Item No. 55 of the second schedule, part 1 of the Exclusive Legislative List of the 1999 Constitution and is therefore an agency of the Federal Government and covered by Section 251(P) and or (r) of the said Constitution.

I therefore hold that the 2nd defendant is an agency of the Federal Government and this Court has no jurisdiction to entertain any suit in which it is a party.

Mr. Agor has argued that this being a Land matter, this Court has jurisdiction over the Suit because the subject matter was within its jurisdiction. I do not however agree with that argument while the Land is within the territorial jurisdiction of this Court, it is within the premises of the 2nd defendants and therefore, in their possession.