➥ CASE SUMMARY OF:
University of Ibadan V. Government of Kwara State & Ors. (CA/IL/8/2011, 28 May 2012)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Revocation of land;
Public officers protection;
Land Use Act.
➥ CASE FACT/HISTORY
This appeal is against the interlocutory Ruling of Honourable M. O. Adewara, J; of the High Court of Justice of Kwara State sitting at the Ilorin Judicial Division wherein he upheld the Preliminary Objection of the Defendants (now Respondents) and dismissed the Plaintiff’s (now Appellant’s) claim for being statute-barred. The Ruling was delivered on the 22nd June, 2010. It would be recalled that in both the endorsement on the writ of Summons dated 3rd August, 2009 and filed same date and in the Statement of Claim filed on the said 3rd day August, 2009, the Plaintiff sought for the following reliefs, inter alia, against the Defendants:- ‘1. A declaration that the parcel of the land situate, known and addressed as No, 12 Ahmadu Bello way, Ilorin, Kwara State, was allocated to University of Ibadan by the then Northern Nigeria Government.’
➥ ISSUE(S)
I. Whether the learned trial Judge erred in law when he held that the Appellant’s title to the land in dispute was revoked on 26/04/91, contrary to Section 49 of the Land Use Act, 1978?
II. Whether the learned trial Judge erred in law when he held that the Appellant’s suit is statute barred?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE PRELIMINARY OBJECTION OUGHT TO HAVE FAILED AS THE REVOCATION LETTER WAS REVOKED SUBSEQUENTLY
‘The Respondents have not shown either from their Affidavit or Further Affidavit in support of their Preliminary Objection, that all the documents tendered by the Appellant as emanating from them (Respondents), were forgeries or fraudulently obtained. From what I can gather in those documents, the Certificate of Occupancy had been reinstated as at 2000 and that explained why the Respondent demanded for Ground Rents from the Appellant between 1978-1999 and 2001- 2004 which the Appellant paid for and was accepted and receipted by the Respondents. With the depositions in the Affidavits and Counter-Affidavits of the Appellants alone, the Respondents Preliminary Objection ought to have failed.’
THE LAND CANNOT BE REVOKED AS IT BELONGED TO A FEDERAL GOVERNMENT AGENCY (THE UNIVERSITY)
‘Accordingly, and as rightly submitted by the learned Counsel for the Appellant relying on Akeem and 6 Ors. v. University of Ibadan (2002) 10 NWLR (Pt.829) 584 at 596 para B-C and Macfoy v. UAC (supra); by virtue of Section 49(1) which provides that nothing in the Act shall affect any title to land whether developed or undeveloped held by the Federal Government or any of its agency at the commencement of the Act and that in that respect any such land shall continue to vest in the Federal Government or the agency concerned; the purported revocation of the Appellant’s certificate of occupancy by the Respondent in 1991 after the Appellant had become an agency of the Federal Government was therefore null and void and of no effect whatsoever, for one cannot put something on nothing and expect it to stand. The learned Counsel for the Appellant has also rightly in paragraph 2.6 of his undated Reply Brief cited the case of Agundo v. Gberbo (1999) NWLR (Pt 617) 71 at 96 Para F-G; where Mogaji, JCA aptly stated the position of the law while interpreting Section 5(1) and 38 of the Land Use Act and rightly held on the authorities of Kalu v. Odili and Ors. (1982) 1 NCLR (Pt.5) 83 at 116; Adeshina v. Lemonu (1963) 1 ALL NLR 233 at 248 to 249; Nwosu v. Imo State I.S.E.S.A. (1990) 2 NWLR (Pt.135) 688 and J.S.C. v. OMO (1990) 6 NWLR (Pt. 157) 407 amongst other cases; that the power of the Governor under the Sections of the Land Use Act above quoted is not absolute and that in construing a statute, the whole of the provisions should be taken into consideration so as not to defeat its evident purpose. Furthermore every statute should be interpreted according to its tenor and the mischief it aims to address and redress and in so doing, the Courts are enjoined to focus their attention on the objective behind the enactment of a given legislation; and in particular in respect of the Land Use Act, which is a subject of construction herein; to understand the history behind its enactment.’]
.
.
↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[THE REVOCATION WAS RESCINDED
‘However, from the facts and circumstances of this case and as I had earlier held, by accepting ground rents between the years 1978 to 2000 and 2001 to 2004, the Respondents tacitly realized in the year 2000 and subsequently that they were wrong in revoking the right of occupancy of the property which title was vested in the Appellant (an agency of the Federal Government) contrary to section 49(1) of the Land Use Act and accordingly must have rescinded the revocation and reinstated the right of occupancy of the Appellant. The above apart, since it has been found that the revocation as at 1991 or 1996 (if at all) was a complete nullity, the Appellant was neither caught by section 4 of the Limitation Law of Kwara State so as to render the action of the Appellant statute-barred as purported by learned Counsel for the Respondent and indeed the court below thus warranting the dismissal of the claim of the Appellant.’]
.
.
.
✓ DECISION:
‘On the whole this appeal is meritorious and hereby succeeds in its entirety. The Ruling delivered on the 22nd day of June, 2010; by the Honourable Justice M.A. Adewara, sitting at the Ilorin Division of the High Court of Justice, Kwara State, is hereby set aside. It is hereby ordered that Suit No. KWS/145/2009 be remitted to the High Court of Justice Kwara State for re-assignment by the Honourable, the Chief Judge to another Judge. I make no order as to costs.’
➥ FURTHER DICTA:
⦿ THE LAND USE ACT CAN BE GIVEN RETROSPECTIVE EFFECT
From the foregoing provisions of the Land Use Act it is clear that the intention of the Legislature in using the words at “at the commencement of this Act”, is to deem and continue to vest any title to Land whether developed or undeveloped held by the Federal Government or any of its agency prior to or before or on (at the commencement) id est the coming into effect of the Act), on the Government and such title shall not be affected or has been or is exempted from the applicability of, for instance, the provisions of Section 28 of the Act which deals with revocation of title or right of occupancy as in this case. In other words, any title to land whether developed or undeveloped so held by the Federal Government or any of its agency shall be deemed to be so held as if the Act had come into effect as at when the title was acquired. This explains why the last two lines expressly provide that “accordingly, any such land shall continue to vest in the Federal Government or the agency concerned’. See Savannah Bank v. Ajilo (1989) 2 NWLR (Pt.97) 305. Having said this, the question posed by the learned counsel for the Respondents whether the Land Use Act can be given retrospective interpretation is answered in the affirmative. In Adesanoye v. Adewole (2006) 4 NWLR (Pt.1000) 242 at 270 para. G. Per Tobi, JSC, reflecting on the nature of retrospective statutes held thus: “While Courts of law frown upon retrospective legislation as they are not the best in the development of the rule of law and more particularly the concept of fair hearing, they are not unconstitutional and therefore part of our jurisprudence. This is because the legislatures have the constitutional right to enact a statute and make it apply retrospective. In so far as such a statute is donated by section 4 of the Constitution, Courts of law do not have the jurisdiction to question the vires of the statute.” Herein, the learned Counsel for the Respondents may not like the retrospective interpretation and application of Section 49(1) of the Land Use Act but that is the law and since that Section is not un-constitutional by virtue the Act being expressly incorporated as not only an enactment of the National Assembly but as part and parcel of the Constitution; in my humble view, his interpretation thereof is erroneous and is accordingly discountenanced. — I. I. Agube JCA.
⦿ ARGUMENT FOR SUIT AGAINST PUBLIC OFFICERS
On the arguments pertaining to section 2(a) of the Public Officers (Protection) Law, Cap p.15 Laws of Kwara State, 2007; there is no doubt that the Section unequivocally provides that: “Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect of default in the execution of any such law, duty or authority, the following provisions shall have effect:- (a) The action prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof. Provided that if the action, for cause arising while such person was a prisoner, it may be commenced within three months after the discharged of such person from prison” (underline for emphasis). The learned Counsel for the Respondents was also in firma terra when he posited that for Section 2(a) of the Public Officers (Protection) Law to avail any person, two conditions must be satisfied:- 1. That the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of that law, 2. That the act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law public duty or authority or in respect of an alleged neglect or authority or in respect of an alleged neglect or authority or in respect of an alleged neglect or default in the execution of any such law, duty authority. In this wise, the locus classicus of Ibrahim v. Judicial Service Committee (1998) 12 SCNJ 255 at 272 and other authorities like Permanent Secretary Ministry of Works Kwara State and Anor. v. Balogu (1975) All NLR 254 SC; Anozie v. A.G. FRN (2008) 10 NWR Pt. 1095, 278; CBN v. UK Pona (2008) 7 NWLR (Pt. 998) 555; Atiyaye v. Perm. Sec. Ministry of Local Government Borno State (1990) 1 NWR Pt. 129, 728; more particularly Ibrahim v. Judicial Service Committee (supra) at page 272-273 per Iguh JSC who opined at page 272 that:- “The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceeding shall not be brought after the time prescribed by such statute. Any action that is instituted after the time prescribed by such statute. Any action that is instituted after the period stipulated by statute is totality barred as the right of the injured person to commence the action would have been extinguished by law”; are very germane and apposite to the submissions of Counsel on the principle enunciated as they represent the current position of the law. Also by Section 18(1) of the Interpretation Act Cap 192 Laws of Federation of Nigeria 1990 and the Interpretation Law No. 4, Cap. 78, Laws of Kwara State, 2006; Public Officers include every officer or department invested with or performing duties of a public nature under the immediate control of the association or body of persons corporate of incorporates. Ibrahim v. Judicial Service Committee (supra) refers. Thus going by the above definition of Public Officers, it is clear that the 1st to 5th Respondents are Public Officers properly so called and for purposes of this case acted in that capacity. — I. I. Agube JCA.
⦿ PUBLIC OFFICERS ACTING OUTSIDE THEIR DUTIES WILL NOT BE PROTECTED BY THE PUBLIC OFFICERS PROTECTION LAW
I further agree therefore with the submission of the learned Counsel for the Appellant that where the Respondents embarked on an illegal act, the Public Officers (Protection) Law and the Limitation Law of Kwara State, will not protect them, they, having acted beyond their powers and in utmost bad faith. After all, as has been settled by motley authorities, including the celebrated case of Ibrahim v. Judicial Service Committee (supra) per Iguh, JSC at page 273 lines 5 to 20 citing Nwankwere v. Joseph Adewumi (1967) NMLR 45 at 49; Atiyaye v. Perm. Sect. Ministry of Local Government Borno State (1990) 1 NWLR (Pt.129) 728 and Ekeogu v. Alire (1990) NWLR (Pt.126) 345; the Public Officers Protection Law or Act is designed for the protection or insulation of all Public Officers engaged in the due execution of public duties in the course of which they must act or have acted within the scope of their public duties. The law therefore has no protection for Public Officers who acted or act outside the colour of their offices or scope of statutory or constitutional authority/duty … Indeed, in Nwankwere v. Joseph Adewumi (1966) 1 ALL NLR 129 at 134; the Supreme Court added another dimension to the criteria for the application of the Public Officers (Protection) Act, when their Lordships held inter alia that: “The law is designed to protect the Officers who act in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification. If the Plaintiff’s story was true the Defendant did not purport to be acting in the execution of any public duty.” Subsequently, the apex Court in Lagos City Council v. S.A.J. Ogunbiyi (1969) 1 ALL NLR 297; speaking in the same vein, further emphasized the circumstances whereby a Public Officer would be stripped of the protection he otherwise would have been entitled to, under the Limitation Law or Public Officers (Protection) Law in this case of Kwara State thus: “The Public Officers Protection Act necessarily will not apply if it is established that the Defendant had abused his position for the purpose of acting maliciously. In that case, he had not been acting within the terms of the statutory or other legal authority. He has not been bonafide endeavoring to carry it out. In such a state of facts he has abused his position for the purpose of doing a wrong and this protection of this Act, of course, never could apply to such a case.” — I. I. Agube JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Ignatius Igwe Agube, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Ikeh Sunday Esq.
⦿ FOR THE RESPONDENT(S)
A. A. Daib Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 49 of Land Use Act “49.-(1). Nothing in this Act shall affect any title to land whether developed or underdeveloped held by the Federal Government or any agency of the Federal Government at the commencement of this Act and, accordingly, any such land shall continue to vest in the Federal Government or the agency concerned”.
➥ REFERENCED (CASE)
⦿ PROCEEDING SHALL NOT BE BROUGHT AFTER THE TIME PRESCRIBED BY STATUTE
Thus, the dictum of Iguh, JSC; in Ibrahim v. Judicial Service Committee (supra) at page 272-273; that: “The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceeding shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by statute is totally bared as the right of the injured person to commence the action would have been extinguished by law”
➥ REFERENCED (OTHERS)
