F.O. Obayiuwana V. Minister of Federal Capital Territory & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, JCA

This Appeal was filed against the decision of the High Court of the Federal Capital Territory delivered by Hon. Justice S.D. Sage on the 19th day of June 2006 dismissing the case of the plaintiff whose certificate of occupancy was revoked as statute barred.

Appellant appealed to this court by Notice of Appeal filed on the 5/07/06 containing 3 grounds of appeal and an Amended Notice of Appeal with the leave of court granted on 7th November, 2006 containing five grounds of appeal filed on 14th November, 2006.

FACTS

The Appellant, then the Plaintiff filed this suit in the federal High Court, Abuja against the Respondents (then Defendants) on the 29/9/97 claiming the following reliefs:-

1. Against the 1st and 2nd Defendants a declaration that the purported revocation of his right of occupancy NO:ABU/FCT/BD.688 over the land measuring 865 M2 more particularly described and delineated as plot N0.337 at Wuse A7 via the Notice of revocation of Right of Occupancy NO:ABU/FCT/BD.688 dated the 9th June, 1997, on the grounds of inability to develop when the plaintiff’s building plan was yet to be approved by the 2nd Defendant is wrongful, illegal, null and void.
2. A declaration that the Right of Occupancy granted to the 3rd Defendant by 1st and 2nd Defendants in and over the said land described in paragraph 1 above is illegal, null and void in that same was issued to 3rd Defendant without properly revoking the earlier certificate of occupancy issued to the plaintiff and without first serving the plaintiff personally a notice of revocation and or without a Formal deed of revocation issued to him.
3. An order of perpetual injunctions restraining the 1st and 2nd Defendants from interfering with the quiet possession of the said land by the plaintiff or ejecting the plaintiff, his servants, or agents therefrom or reallocating and/or granting another statutory Right of Occupancy to the said land to any other person whatsoever or in any other way interfering with the rights of the plaintiff as owners of the said piece of land.
4. Against the 3rd Defendant an order of perpetual injunction restraining her from entering upon, building on, storing construction materials, excavating or in any other manner trespassing on the land described in paragraph 1 or carrying on any construction work thereat (sic) or leasing, mortgaging, assigning or in any other manner purporting to convey any interest in the land aforesaid to any person.
5. A declaration that under the principle of ”quicquid plantatur solo, solo cedit” the building now constructed by the 3rd defendant on the said plot of land that is plot 337 at Wuse A7, Abuja is the property of the Plaintiff.

Pleadings were exchanged and the matter went for trial at the Federal High Court thereof presided over by Hon. Justice Chikere. In the course of the proceedings, it was discovered that issues arising will be better disposed of by the High Court of the Federal Capital Territory, consequent upon which the case was transferred to the High Court of FCT, presided over by Hon. Justice Sidi Sage.

At the preliminary stage of the case, the counsel to the 1st and 2nd Respondents raised a preliminary objection on the ground that the suit is statute barred by the operation of Section 2(a) of the Public Officer’s Protection Act Cap P.41 LFN, 2004. Arguments were canvassed on the issue and the High Court ruled, dismissing the case as statute barred, under the Public Officer’s Protection Act Section 2(a) on the 19th June, 2006.

On the 4/11/08 when hearing of the appeal, Mr. Okoye, learned counsel for the Appellant adopted Appellants brief which was filed on 14/11/06 and deemed filed on 3/4/07. In the brief the Appellant formulated four (4) issues for determination which are as follows:-

1. Whether the trial court was correct in his ruling when he held that ”it is only the purpose of allocation if found not to be for public purpose that can serve as an exception to the application of Section 2(a) of the Public Officers Protection Act in Land Matters”
2. Whether the learned trial Judge was right when he held that contractual relationship between Applicants and Plaintiff/Respondent was not canvassed and reason for revocation of land was not put in issue at the stage of preliminary objection.
3. Whether the learned trial court applied the right principle of law, when he held that the act of revocation was completed when the letter of revocation was dispatched or posted.
4. Whether the learned trial Judge was right when he held that 17/06/97 to 29/09/97 was more than a period of three months allowed by a statute for filing an action against Public Officer exercising public duties.

Mr. Obiamalu learned counsel for 1st and 2nd Respondents adopted their Brief filed and deemed filed on 22/11/07 and in it stated they were not raising any new issues apart from those of the Appellant which they would answer to.

The 3rd Respondent represented by Mr. Ajoku adopted their Brief filed on 3/7/08 and deemed filed on 7/7/08. 3rd Respondent also hung onto the issues as framed by the Appellant in arguing against the appeal.

The route therefore being cut out with ease I shall go into the issues as framed to determine what really is the right position in this appeal.

ISSUE NO.1

Whether the trial court was correct in his ruling when he held that “it is only the purpose of allocation if found not to be for public purpose that can serve as an exception to the application of the Public Officers protection Act in land matters”.

Learned counsel for the Appellant stated that section 2(a) of the Public Officers Protection Act in language relates to the realm of tort and should not be extended to contract and land matters to which the Act does not apply. He cited FGN v. Zebra Energy Ltd (2002) 18 NWLR (pt. 798) 162 at 175.