The Executive Governor Delta State, Asaba & Anor V. Steve Omojafor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment)

This is an appeal the ruling of the Delta State High Court, Asaba Judicial Division, delivered by Akporido, J. in Suit No. A/M/9/2001 on 28th June, 2002. Upon an Ex-parte motion dated 26/6/2001 and brought pursuant to Order 43 rules 1, 2 (b), 2 (c) etc of the Bendel State High court civil procedure Rules 1988, applicable to Delta State High Court, the Respondent herein, as the Applicant sought for and obtained leave of the court to apply for judicial review. The substantive action for judicial review was concerned with and pertained to the following reliefs namely:

a) For an Order for judicial review for an declaration directed to the Executive Governor Delta State and Attorney-General Delta State that the Delta State Legal Notice No. 8 of 1998 which purports to charge transfer fee, charge or tax property assigned is in conflict with the Land Use Act 1990 and null, void and of no effect.

b) An Order that property at Agbor an urban area is subject to tenement rate based on value of the property and paid only to the Ika South Local Government Council.

c) Perpetual injunction restraining respondents from charging and/or collecting any transfer fee on properties assigned or otherwise.

d) A Declaration that the property of Applicant at Okwuokenye Street, Boji Boji, Agbor is not subject/entitled to any tax, fees charges whatsoever other than Ika South Local Government Council tenement rate.

e) An Order of Injunction restraining the Respondents by themselves, their agents, servants or otherwise howsoever called from leaving any tax, levy, charges fees or payment howsoever or whatsoever called.

f) A Declaration that the Respondents are not competent to promulgate Delta State Legal Notice No. 8 of 1998 which purport to charge transfer fee or tax on property assigned.

The grounds for these reliefs were also set out as follows: –

1) That the promulgation Delta State Legal Notice No.8 of 1998 which purports to charge transfer fee, charge or tax on property assigned is in conflict with the Land Use Act 1990 and is null, void and of no effect.

2) That the property at Agbor an urban area is only subject to tenement rate payable to Ika South Local Government Council.

The Order for leave and the processes in the substantive action were duly served on the Respondents, the appellants herein. The Respondents/Appellants sought to challenge the competence of the Local action filed by the Applicant/Respondent in a motion on notice dated 2/19/2001 brought pursuant to the inherent jurisdiction of the lower court. The motion sought for an order striking out or dismissing the action for judicial review for the following grounds: –

1) That the action was brought more that 3 months after the accrual of the cause of action against the Respondents/Appellants in contravention of S.2 (a) of the Public Officers Protection Law Cap 137 Laws of Bendel State applicable to delta State of Nigeria; and

2) That the act of the Respondent/Appellants complained of was not a judicial act and neither were the Respondent/Appellants expected to act judiciously and therefore the action not being properly constituted under Order 43 (supra).