Samuel Ononuju & Anor. V. Attorney-general, Anambra State & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

P.O. ADEREMI, J.S.C

This is an appeal against the majority judgment of the Court of Appeal, Enugu Division (hereinafter referred to as the court below) coram Thompson Akpabio JCA of blessed memory and Niki Tobi JCA (as he then was) delivered on 13th of July, 1998 dismissing the appeal of the plaintiff who was the appellant before the court below thus upholding the judgment of the trial court which had dismissed the plaintiff’s case on the 24th of October, 1994.

The appellants in this appeal were the plaintiffs in Suit No. HN/53/90; (1) Eng. Samuel Ononuju and (2) Frederick Azubuine (representing Ndumanya Family of Umuohi, Okija) as plaintiffs and (1) Attorney-General, Anambra State, (2) Commissioner for Works, Lands and Transport, Anambra State and (3) Chief Emmanuel Eze Onwuka, as defendants. The plaintiffs had before the High Court of Justice, Anambra State sitting at Nnewi Judicial Division, taken action against the defendants, claiming against them jointly and severally as follows: –

“(1) A declaration that the purported acquisition of the plaintiffs’ land, of the Annual Value of N100,000.00 by the Anambra State Government acting through the 2nd defendant is unconstitutional, null and void and not effective to divest the plaintiffs of their title to the said land.

(2) A declaration that the Certificate of Occupancy issued by the Chairman of the Ihiala Local Government Authority and dated 27th April, 1989, purportedly granting a portion of the plaintiffs’ land to the 3rd defendant is otiose, ineffective to transfer any title to the 3rd defendant and contravenes the constitutional rights of the plaintiffs to their land.

(3) IN THE ALTERNATIVE, if the plaintiffs’ land was at any time legally vested in the Federal Government, a declaration that it is unconstitutional and a contravention of the law empowering the compulsory taking over of a subject’s land to grant a portion of the plaintiffs’ land to the 3rd defendant for his private purpose.

(4) IN THE ALTERNATIVE, if the plaintiffs’ land ever legally vested in the Federal Government, a declaration that the Chairman, Ihiala Local Government Authority was and is not competent to grant the Certificate of Occupancy dated 27th April, 1989, in respect of the said land to the 3rd defendant and the said Certificate conveyed no legal interest in the plaintiffs’ land to the 3rd defendant.

5. IN THE ALTERNATIVE, if the plaintiffs’ land ever legally vested in the Federal Government, a declaration that on failure of the object of public purpose for which the land was acquired compulsorily the land reverted to the plaintiffs.
6. N10,000.00 general damages against the 3rd defendant for his continuing trespass to the plaintiff s said land.

and (7) An injunction restraining the defendants and each of them by themselves or through their agents, servants or privies from remaining on the plaintiffs’ land or doing any act thereon which interferes with the plaintiffs’ possession of the same.”

Pleadings filed and exchanged by the parties are (1) the statement of claim dated 14th August, 1990, (2) the statement of defence of the 3rd defendant dated 25th October, 1990 and (3) the statement of defence of the 1st and 2nd defendants dated 12th November, 1990. Both parties called evidence at the trial, to prove the respective averments contained in their different pleadings. After taking the final addresses of the counsel appearing for the parties, in a reserved judgment delivered on the 24th October, 1994, the trial judge dismissed the plaintiffs’ claims in toto.

Being dissatisfied with the said judgment, the plaintiffs appealed to the court below. After hearing the counsel appearing for the parties on the respective briefs of arguments filed on behalf of the clients, the court below, in reserved judgments delivered on the 13th of July 1998, by a majority judgment (Akpabio JCA and Tobi JCA – as he then was), dismissed the appeal of the plaintiffs/appellants with costs. But on the same date, by a minority judgment wherein Salami JCA dissented, the appeal of the plaintiffs/appellants was allowed, the decision of the trial court including the order as to costs were set aside.

Being dissatisfied with the majority judgment of the court below, the present appellants have appealed to this court by way of a Notice of Appeal filed on 3rd September, 1998 which carries five grounds of appeal. Also, the 1st and 2nd respondents being dissatisfied with part of the majority judgment relating to the issue of proof of title to the land in dispute by the appellants prior to the Land Use Act as averred in paragraph 4 of the statement of claim and for which, according to the 1st and 2nd respondents, they joined issue with the plaintiffs/appellants, that aspect have been struck out in the majority judgment on the ground that it was a non-issue, they have cross-appealed to this court by a Notice of Cross-Appeal dated 15th July, 2002 which carries three grounds. For similar reason, the 3rd respondent has also cross-appealed to this court by way of a Notice of Cross-Appeal dated 22nd June 2002 which itself has three grounds.

When this appeal came before us for argument on the 9th of February, 2009, Chief Onwugbufor learned senior counsel for the 3rd respondent sought and obtained the leave of court to withdraw the Notice of Preliminary Objection filed on the 24th of April, 2006 and the second arm of the Notice of Preliminary Objection filed on 27th June, 2007 and all the arguments canvassed in support of the two Notices as contained in the brief of argument of his client. Immediately thereafter but on the same day, Mr. Osighala, learned counsel for the appellants, adopted his clients’ brief filed on the 21st of August 2000 and the plaintiffs/cross-respondents’ brief deemed properly filed on the 26th March, 2007 and urged that the appeal be allowed while the cross-appeals be dismissed. Mrs. Onwuka, Chief State Counsel, Ministry of Justice, Anambra State representing 1st and 2nd respondents, adopted her clients’ brief of argument filed on the 17th of June, 2002 and urged us to dismiss the appeal; she also adopted the 1st and 2nd cross-appellants’ brief filed on the 29th of April, 2004 and urged us to allow the cross-appeal. Chief Onwugbufor, learned senior counsel for the 3rd respondent adopted his client’s brief filed on 21st June, 2002 his cross appellant’s brief filed on 23rd April, 2004 and the 3rd cross appellant’s reply brief filed on the 25th of May, 2007, he submitted that issues Nos. 3 and 4 on the appellants’ brief did not arise from the court below’s judgment and consequently, those two issues be struck out; he finally urged us to dismiss the appeal but to allow the cross-appeal of his client. The appellants have distilled four issues from their five grounds of appeal for determination; and as set out in their said brief of argument; they are as follows:

“(1) Was the acquisition of the 15,025 hectares granted to the 3rd respondent invalid null and void

(2) Was the majority decision of the court below correct in law when it upheld the finding of the trial court that notices of revocation were served on the appellants