The Surveyor General Of Cross River State & Ors V. MR. Opute Jonathan & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment)

This is the appeal against the Judgment of the Federal High Court Calabar in suit No FHC/CA/C3/3/2008 delivered on the 9th July, 2009. The Respondents after obtaining the leave of the Federal High Court, Calabar on the 2nd May 2008, filed a joint Motion on Notice for the enforcement of their fundamental rights. They sought for the following reliefs:

1. An order enforcing or securing the enforcement and protection of the applicant Fundamental Rights as enshrined in Sections 43 and 44 of the Constitution of the of the Federal Republic of Nigeria 1999.
2. An order restraining the Respondents and their agents from interfering/attempting to seize, take possession/measure the immovable property of the Applicants situate at NITEL SENIOR STAFF QUARTERS, IKOT UDUAK OFF MCC ROAD, CALABAR pending the determination of this application for enforcement in terms of the relief sought in the statement accompanying the affidavit in support of the application for leave to apply for the Order on the grounds set out in the copy statement served herewith, used on the application for leave to apply for such Order.

The Motion on Notice was accompanied with 26 paragraphs of affidavit deposed to by Odey Anthony Ogboriku (4th Respondent), on behalf of all the respondents who introduced themselves as retired NITEL STAFF inoccupation of the flats at NITEL SENIOR STAFF QUARTERS IKOT UDUAK CALABAR. There is also a statement, a verifying affidavit and service and several exhibits attached.

Upon service of the motion on notice, the Appellants filed a counter-affidavit of ten paragraphs on the 3/11/2008 and another 16 paragraphs further counter-affidavit on the 17/11/2008. By order of Court dated 30/6/2009, the counter-affidavits and accompanying written addresses were deemed properly filed and served.

FACTS OF THE CASE

In 1973, the Cross River State Government acquired a total of 10.443 hectares (104.430 meter square) of undeveloped land at Ikot Uduak, Off MCC, Calabar for transmission to the Department of Post and Telecommunications P & T now to NITEL to build its WHP centres and staff quarters. Despite the absence of vested perfect title over the land, the Post and Telecommunications entered into the land and developed 2.639 hectares (26.390m) only as Senior Staff Quarters out of the total area of 10.443 hectares (104.430m) originally intended, leaving a balance of 7.804 hectres (78,040m2) rejected, undeveloped and abandoned since 1973.

It is this portion in which the Governor of Cross River State revoked all its existing or deemed existing rights that the Respondents are challenging in this suit. The trial High Court after argument by the parties delivered its judgment on the 9/7/2009 awarding all the undeveloped 7.804 hectares (78.040m2) of land to the Respondents. It is against this said judgment that this appeal has arisen.

ISSUES FOR DETERMINATION

In arguing her appeal, the Appellants formulated seven grounds of appeal on their notice of appeal filed on the 4/9/2009 to wit:

GROUND ONE: ERROR IN LAW

The learned trial judge erred in law because he lacked the jurisdiction to hear and entertain a matter in which the Federal Government or its agency was not a party.

PARTICULAR OF ERROR

1. S.251 of the Constitution of the Federal Republic of Nigeria, 1999 cloths the Court with jurisdiction to hear certain matters and against certain bodies.
2. The Applicants/Respondents are not the Federal of Nigeria or any of its Agencies.
3. NITEL, Federal Government Agency which sold the flats to the revocation of their rights over the under-developed portion of the land.

GROUND TWO: ERROR IN LAW

The learned trial judge erred in Law in adjudicating upon a matter involving ownership of undeveloped land between Applicants and Respondents.