Eteidung Anietimfon Udoh & Ors V. Akwa Ibom State Government & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the Judgment of the Akwa Ibom State High Court sitting of Uyo, Akwa Ibom State, delivered on 2nd July, 2010 in Suit No. HJ/117/2009.

The Appellants who were the original owners, communally and individually, of a large expanse of land situate in Effiat Offot and Afaha Offot Villages in Uyo Local Government Area of Akwa Ibom State, measuring over 7 hectares, had as plaintiffs instituted Suit No. HU/117/2009, against the Respondents, as Defendants. The said land was compulsorily acquired by the 1st Respondent.

The said acquisition and revocation of Right of Occupancy were published in the Pioneer Newspaper editions of Monday, 25th December, 1995 and Monday, 6th May, 1996 respectively. In their Amended Statement of Claim, the Appellants claimed against the defendants, jointly and severally, as follows:

1. A Declaration that where the land of the Plaintiffs was compulsorily acquired by the Government for a particular purpose and where Government failed to utilize the said land for the said original purpose, as gazetted, then the said land should have reverted back to the original owners and/or their descendants.
2. A Declaration that where Government compulsorily acquired the plaintiffs’ land for a specified purpose, as gazetted, but failed to use the said land for the said original purpose and rather retained the said land and used same for an entirely different purpose then gazetted, without handing over the said land to the owners and/or their descendants, then the said owners and/or their descendants are entitled to compensation for the compulsory acquisition and use of their land by government.
3. An Order for the Defendants, jointly and/or severally, to pay compensation amounting to N5,000,000,000.00 (Five Billion Naira) to the plaintiffs for the compulsory acquisition of the plaintiffs large parcel of land measuring approximately 7 hectares since 1989 and thereby subjecting the plaintiffs to huge financial/economic loss as well as mental, social, psychological and physical pains/agonies on losing their highly valued land that once hostel their economic trees, temporary structures, buried loved ones, tombstones, shrines, sacred places etc. the said land and the structures therein having been duly valued and appropriate demand notices for compensation having been sent to the Defendants in 1995, 1997, 1999, 2000, 2005 and 2009 but without receiving any reply from the Defendants.

The 1st and 2nd Respondents filed their respective Statements of Defence on 2nd October, 2009 and 5th November, 2009. The 1st Respondent in their Statement of Defence pleaded the payment of compensation to the Appellants and the defence of Limitation. The 1st Respondent also filed a Notice of Preliminary Objection as follows:

TAKE NOTICE that the 1st Defendant in this Suit shall raise a preliminary objection to the competence of this Suit on ground that the Court has no Jurisdiction to entertain the Suit. The suit offends Section 1 and 16 of Limitation Law Cap. 78 Vol.4 of Akwa Ibom State.

Again, it violates Section 1(1) of Public Officers Protection Law of Cap Vol. 4 Laws of Akwa Ibom State. The 1st Defendant being juristic person is a Public Officer and deemed as a Public officer.

The trial court heard the Preliminary Objection and ruled that the action was statute barred and in consequence it had no jurisdiction to hear it. The action was dismissed.

The Appellants filed on Amended Notice of Appeal on 4/4/2012 in which they raised nine Grounds of Appeal, and, sought these Orders:

(a) That the judgment of the lower Court dated 02/07/10 be set aside and a confirmation made by the Court of Appeal that the said plaintiffs suit is neither statute barred by virtue of any limitation law nor offends the Public Officers Protection Act and that the Court has jurisdiction to entertain the said suit.

(b) That the said case be sent back to another court for continuation of trial to conclusion.

From the nine Grounds of Appeal, the Appellants in the Appellants’ Brief, dated 13/10/2010, distilled the following Issues for determination:

1. Whether the whole judgment as delivered by Hon. Justice Edet Ukana on 02/07/2010 was not a miscarriage of justice.
2. Whether the learned trial Judge did not err in law and/or misrepresented the law when he upheld the preliminary objection of the 1st Defendant and held that the Plaintiffs claims as per Reliefs Nos. 2 and 3 for payment of compensation for the compulsory acquisition of land is statute barred by virtue of sections 1 and 16 of Limitation Law, Cap 78, Vol. 4 Laws of Akwa Ibom State.
3. Whether the learned trial Judge did not err in law when he relied in support of the Preliminary Objection that the Plaintiffs action violates Section 1(1) of the Public Officers Protection Law, Cap 104 Vol.5, Laws of Akwa Ibom State.
4. Whether the learned trial Judge did not err in law when he failed to take into consideration the provisions of Section 31(1), (2) and (3) of the said Limitation laws of Akwa Ibom State Cap. 78 Vol. 4 and rule that the Defendants had committed a fraud on the Plaintiffs and so the said period of Limitation did not apply.
5. Whether the learned trial Judge did not err in law when he upheld the Preliminary Objection and ruled that he had no jurisdiction to entertain the case.
6. Whether the judgment as delivered by the learned trial Judge was not against the weight of Evidence.
7. Whether the learned trial Judge did not err in law when he failed to note and rule that the said Limitation Law, Cap.78. Vol.4, Laws of Akwa Ibom State is an invalid and incompetent law since a State Legislature does not have power to make any other law concerning any other matter, touching on Exclusive list meant for Federal Legislature only, and touching on procedure and/or Jurisdiction of Courts.
8. Whether the learned trial Judge did not err in law when he failed to note and rule that by virtue of Section 40(1) (f) of the said Limitation Law of Akwa Ibom State Cap. 78, Vol.4, the plaintiffs action was not affected by any period of Limitation.
9. Whether the learned trial Judge did not deny the Plaintiffs fair hearing when he ruled that he had no jurisdiction to entertain the case and thereby denied the plaintiffs the opportunity to be heard.

The 1st Respondent’s brief was filed on 15/3/2011, and deemed on 17/5/2012. The Appellants filed a Reply Brief to the 1st Respondent’s Brief on 1/4/2011. The 2nd Respondent’s brief was filed on 17/5/2012, and deemed on 16/1/2013. The Appellants filed a Reply Brief to the 2nd Respondent’s Brief on 30/7/2012. The Appellants also filed a Notice of Additional Authority on 10/10/12. These Briefs were all respectively adopted on 17/4/2013.

The 1st Respondent adopted the Issues raised by the Appellants for determination. The 2nd Respondent, from the nine Grounds of Appeal filed by the Appellants, distilled the following five Issues for determination: