Nigerian Ports Authority V. Attorney-general Of Cross River State & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH JUDE JELLA, J.C.A.(Delivering the Leading Judgment)

In the Federal High Court Calabar the Plaintiff/Appellant by originating summons raised three questions for determination as follows:

1. Whether the Plaintiff’s proprietary interest in the land in dispute and his development thereon known lying and situate at Ekorinim Calabar. Cross River State (Harbour Village) measuring approximately 11.04 hectares which vest in the Plaintiff under and by virtue of Section 125(3)(b) paragraph 9(3)(b) of third schedule of Nigeria Ports Act No 28 of 1999 and section 317 of 1999 Constitution are capable of being revoked and extinguished by the 1st and 2nd Defendants.
2. Whether the Plaintiff’s land lying and situate at Ekorinim (Harbour Village) Calabar Gross River State is having regard to the status of the Plaintiff as an Agency of the Federal Government exempted from the provisions of the Land Use Act 1978.
3. Assuming the provisions of the Land Use Act are applicable to the land in dispute. Whether the 2nd Defendant is empowered to revoke the Plaintiff’s proprietary interest in the said land situate at Ekorinim (Harbour village) Cross River State and without reasons to vest same simultaneously in the 3rd Defendant through a revalidation public notice.

The reliefs of the action set out in the originating summons are as follows:

(a) A deliberation that all the pieces or parcel of land and the developments thereon lying being and situate at Ekorinim measuring approximately 11.018 hectares otherwise known as the Harbour village vest absolutely in the Plaintiff under and by virtue of the provisions of s.125(3)(b) paragraph 9(3) third schedule of Nigeria Ports Act No. 38 of 1999 and section 317(1) of the 1999 Constitution of the Federal Republic of Nigeria.

(b) A declaration that all the piece or parcel of land and the development thereon lying and situate at Ekorinim measuring approximately 11.018 hectares otherwise known as Harbour Village Calabar constitute part and parcel of the Federal Ports under the control and management of the Plaintiff (An Agency of the Federal Government) and the Federal Government and therefore exempted from the provisions of the Land Use Act 1978.

(c) A declaration that the Defendants lack the statutory and constitutional powers to revoke the subsisting proprietary right of occupancy of the plaintiff in respect of the land situate at Ekorinim (Harbour Village) in Calabar, Cross River State (sic) measuring approximately 11.048 hectares.

(d) A declaration that the purported revocation of the Plaintiffs proprietary Statutory right of Occupancy over the land situate at Ekorinim Harbour Village and the purported simultaneous vesting of same land in the 3rd Defendant via a purported revalidation notice dated 26th November 2007 under the land of the 2nd respondent is null and void, ultra vires a gross violation of the provisions of the Land Use Act 1978 and contrary to the plaintiff proprietary rights guaranteed by the 1999 Constitution of the Federal Republic of Nigeria.

(e) An order setting aside the purported revocation by the 2nd Defendant of the Plaintiffs proprietary interest right of occupancy in the land in dispute situate at Ekorinim (Harbour Village) Calabar, Cross River State and the purported revalidation of the 3rd Respondents interest on the said land.

(f) An order or perpetual injunction restraining the Defendants, their Agents, servants, privies all persons claiming through them or in trust for them and all other persons not authorized by the Plaintiff from entering into, remaining thereon, taking possession, taking any steps towards possessing any part of the Plaintiff’s land.

The originating summons was supported by 19 paragraph affidavit. I think this matter will be better understood if a brief history of the matter is given. The Appellant was the Plaintiff at the Federal High Court Calabar in Suit No: FHC/CA/CS/93/2007. The then South Eastern State Military Administrator acquired the 3rd Respondent’s land comprising 46 units houses at Ekorinim called the Harbour Village measuring approximately 11.048 hectres and vest same in the Plaintiff now Appellant in 1979.

Aggrieved by such a revocation the 3rd Defendant filed a Suit No: C/104/84 at the Calabar High Court challenging the acquisition and vesting of the said land on the Plaintiff/Appellant. The High Court of Cross River State Calabar nullified the said acquisition of the land by the Military Governor and subsequent vesting of same on the Plaintiff/Applicant and that there was no appeal against judgment. When the State Government revalidated the 3rd Defendant’s title to the property vide Cross River State Government Gazette No. 4 of 2007.

The notice of revocation of the Plaintiff/Appellant title over the said land was communicated to the Plaintiff/Appellant which brought the action to the Federal High Court, Calabar.

In its judgment of 25th October, 2010 the said Federal High Court presided by Justice C. J. Aneke, all the reliefs sought by the Plaintiffs were refused. He said:

“On the whole the issues are resolved in favour of the Defendants against the Plaintiffs. For avoidance of doubt, I find and hold that having regard to the valid and subsisting judgment of the Calabar High Court in Suit No. C/104/84 the disputed land is still vested on the 3rd Defendants and not by virtue of the subsequent revocation of the Plaintiffs title thereto and revalidation of the 3rd Defendant’s title by the 1st and 2nd Defendant’s. Accordingly all the reliefs (i), (ii), (iii), (iv), (v) and (vi) are hereby refused”