Joseph Ona & Anor V. Alhaji Diga Romani Atenda (2000)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A.

The plaintiff/respondent, Alhaji Diga Romani Atenda, had instituted this action at the Abuja Judicial Division of the High Court of the Federal Capital Territory as Suit No. CV/315/96 against the two defendants/appellants, Joseph Ona and Festus Ona. The plaintiff’s claim against the two defendants, as set out in paragraph 28 of the Statement of Claim which was filed along with the writ of summons is as follows:-

“Whereof the plaintiff claims the following court reliefs:-

(a) One Million, Five Hundred Thousand Naira (N1,500.000.00) damages for trespass to property, harassment, humiliation, defamation, damage to reputation and good will.

(b) Perpetual injunction restraining the defendants by themselves, agents and privies from any further trespass to the property in dispute and the person of the plaintiff.”

The defendants filed a memorandum of appearance and thereafter their counsel raised a preliminary objection as to the jurisdiction of the court to entertain the action. The objection was premised on the ground that since the land which formed the subject-matter of the plaintiff’s claim is situated at opposite Karmo main-market central gate, a place not designated as urban area in the Federal Capital Territory, only the Area Courts could have jurisdiction over the subject-matter and not the High Court of the Federal Capital Territory where the plaintiff filed the claim.

The matter thereafter came up before Bukar, J. of the Abuja Division of the High Court of the Federal Capital Territory. After taking submissions from learned counsel for the parties as well as from counsel from the Federal Attorney-General’s Chambers, the learned Judge held inter alia, in his ruling delivered on 24th March, 1997:-

“The defendants in their reply admitted that the issue whether customary rights of occupancy exist or not in the Federal Capital Territory, Abuja has been decided before by the Appellate Division of the High Court of the Federal Capital Territory, presided over by two High Court Judges in Wodi v. Jeshy (1982) ABJLR Col. 1 page 75 at 80. In the light of the above decision and in order to avoid conflicting decisions from the same High Court, the matter be referred to the Court of Appeal by way of case stated under Section 259(2) of the Constitution of the Federal Republic of Nigeria 1979 as amended.”

The learned Judge then formulated the following four questions of law for the Court of Appeal to answer in the matter:

“1. Whether by the combined effect of Section 49(1) of the Land Use Act Section 1(3) of the Federal Capital Territory Act and Section 261(2) of the Constitution of the Federal Republic of Nigeria 1979 as amended, abolished customary right of occupancy in the Federal Capital Territory.

2. Whether there is need to designate specific areas within the Federal Capital Territory as rural or urban areas if answer to question one is positive.
3. What is the status of occupiers or holders of such lands by virtue of section 36(1) of the Land Use Act?
4. Who has jurisdiction over the lands within the Federal Capital Territory, is it the Area Courts or the High Courts having regards to the existing laws?”

The above is a brief summary of what transpired in the lower court before the matter came to this court. The defendants at the lower court filed applicants’ brief in this court. The plaintiff filed a respondent’s brief and a number of briefs were filed by some members of the legal profession as amici curiae; and representatives of some bodies considered to be interested parties. The three briefs filed by people considered as interested parties are one from the Honourable Attorney-General of the Federation’s Chambers; another from the Director of Legal Services of the Federal Capital Territory; and the third was filed on behalf of the Abuja Municipal Area Council. Among those filed by members of the Bar invited as amici curiae are respectively one each from Mr. Adetokunbo Kayode and Mr. A.A. lzinyon, S.A.N. At the hearing in this court, Mr. Karima Tunyan, learned counsel for the applicants, as well as Mr. Uye Ogedegbe, learned counsel for the respondent were present and presented the case for their respective clients. Also present to address the court are Mr. Izinyon, SAN, and Mrs. J. O. Adesina from Mr. Kayode’s chambers.

On question No. 1, Mr. Karima Tunyan, learned counsel for the applicants, referred to the provisions of section 1(3) of the Federal Capital Territory Act (Cap. 128, Laws of the Federation of Nigeria 1990) and section 261(1) of the 1979 Constitution in both the applicants’ brief filed by him and in his submission before us. He then contended that the two laws only abolished the “radical title” of the rights of the original inhabitants. He contended that the rights of possession and usage of the land previously held by the said original inhabitants still subsist “until adequate compensation is paid to them”. He further submitted that, the provisions of section 49(1) of the Land Use Act (Cap. 202, Laws of the Federation of Nigeria 1990) do not abolish the right of possession of the original inhabitants. He therefore urged us to answer the first question posed in the negative.

Mr. Izinyon, S.A.N. is one of the leading counsel who responded to the invitation of this court for an input as a friend of the court and he in fact filed a brief and made oral presentation before us. He contended both in his brief and in his presentation before us on the question No. 1, that which it appears superficially that section 49(1) of the Land Use Act, section 1(3) of the Federal Capital Territory Act and section 261 (2) of the 1979 Constitution vest the land exclusively in the Federal Government, they do not abrogate the customary rights of occupancy of the original

inhabitants. Although he concedes that by virtue of section 1(3) of the Federal Capital Territory Act all land in Abuja absolutely belongs to the Federal Government, he however submitted that, section 49(1) of the Land Use Act revives the remnant of the right of possession and usage of the original inhabitants.