Sanbell Investment Limited V. Emlo Holdings Limited & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment)

This Appeal is against the Judgment of the High Court of Justice Abuja (the lower court) delivered on 10th July, 2007 by Hon. Justice I. U. Bello. The 1st – 5th Respondents as Plaintiffs at the trial court filed an Originating Summons against the Appellant, 6th and 7th Respondents who were Defendants at the trial court.

The subject matter of the suit was a parcel of land known as plot 293 (formerly Plot 103) Cadastral Zone AO Central Business District, Abuja and covered by Statutory Certificate of Occupancy No: FCT/ABU/MISCJ3023 which the 1st – 5th Respondents claimed was unlawfully revoked from them by the 6th and 7th Respondents and subsequently allocated to the Appellant.

The brief fact of this case as could be gathered from the Record of Appeal is that the 1st – 5th Respondents as Plaintiffs at the lower court claimed against the Defendants jointly and severally as follows:

“1. DECLARATION that the purported revocation and reallocation or forcible entry/occupation (by the Defendants) of plot 293 (formerly plot 103) Cadastral Zone AO Central Business District, Abuja covered by Statutory Certificate of Occupancy No. FCT/ABU/MISC/3025 dated 4th June 1989 and registered 87/87/8 (Abuja), is arbitrary, unlawful, unconstitutional, ultra vires, null, void and of no effect whatsoever being in flagrant violation of the eloquent/mandatory provisions of Sections 36, 44 etc of the 1999 Constitution of Nigeria and Section 28 of the Land Use Act, 1978, amongst other relevant legislation.

2. AN ORDER setting aside, cancelling or invalidating the purported revocation and or reallocation of the said plot and demolition of the structures/buildings thereon by the 1st and 3rd Defendants (in favour of the 3rd Defendant or any other), and restoring the Plaintiffs’ possession and title thereto.
3. INJUNCTION restraining the Defendants from any/further entry, demolition of existing structures, or taking or continuing to take any steps in furtherance of the purported revocation/reallocation or other adverse transaction touching on the said land originally allocated by the 1st Defendant to the 1st Plaintiff, as aforesaid.

They also sought the determination of the following questions:

“1. Whether the purported revocation and reallocation or forcible entry/occupation of the subject plot 293 (in favour of the 3rd Defendant or at all), was in strict compliance with the mandatory provisions of Section 28 (1, 2, 6, 7) of the Land Use Act 1978 and Sections 36, 44 etc of the 1999 Constitution, etc.

2. If the answer to the preceding question is in the negative, whether the purported revocation and or reallocation of the said plot and forcible demolition of the structures thereon in favour of the 3rd Defendant (or at all), is legally cognizable/sustainable or otherwise liable to be quashed/invalidated.
3. Whether the block-fence and block-bungalow buildings including security-post standing/existing on the subject land prior to the Defendants’ trespass constitutes ‘development’ as contractually or statutorily defined or envisaged under the Land Use Act 1978.”

Upon being served with the Originating Summons, the Appellant filed a Notice of Preliminary Objection challenging the jurisdiction of the lower court to entertain the said Originating Summons. The 6th and 7th Respondents/1st and 2nd Defendants also filed a Notice of Preliminary Objection. The lower court granted, upon their application, leave to the 4th and 5th Respondents to be joined in the suit as co-Plaintiffs.

The Appellant and the 6th and 7th Respondents both separately filed counter affidavits to the Originating Summons.

The lower court took argument on both the Originating Summons and Preliminary Objections. It however did not give any decision on the Appellant’s Preliminary Objection but merely dismissed that of the 6th and 7th Respondents and granted the reliefs sought by the Plaintiffs. Dissatisfied with the decision, the Appellant herein filed on 9th October, 2007 a Notice of Appeal dated 5th October, 2007.

In keeping with the Rules of this Court, parties filed and exchanged briefs of arguments. The Appellant filed on 7th March, 2012 their Amended Brief of Argument dated 6th March, 2012 and they also filed Reply Briefs to the 1st – 3rd Respondents and the 6th – 7th Respondents on 6th September, 2013 and 20th November, 2013 respectively.

On 23rd July 2013, the 1st – 3rd Respondents filed their Brief of argument dated 22nd July, 2013 whilst the 6th and 7th Respondents filed theirs dated 16th September, 2013 but filed on 17th September, 2013.

I have perused the issues for the determination of this Appeal variously raised by the parties and have adopted the issues raised by the Appellant for the determination of this appeal, in view of their elegance which said issues are set out below:

“1. Whether the learned trial judge was not wrong in his failure/refusal to give any consideration whatsoever to the Notice of Preliminary Objection dated 28th March, 2006 and filed on the 6th of April, 2006 by the Appellant (3rd Defendant) challenging the competence of the Originating Summons issued by the 1st to 3rd Respondents/Plaintiffs’ and whether by such failure the Appellant’s right to fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) was not breached?