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CASE TITLE: NPA v. SAMA & ORS (2019) LPELR-47613(CA)
JUDGMENT DATE: 30TH MAY, 2019
PRACTICE AREA: CIVIL PROCEDURE
LEAD JUDGMENT: MUHAMMED LAWAL SHUAIBU, J.C.A.
SUMMARY OF JUDGMENT:
INTRODUCTION
This appeal borders on Civil Procedure.
FACTS
This appeal is against the ruling of the High Court of Cross River State sitting at Calabar delivered on 13th December 2016 dismissing the appellant’s motion of 28/9/2012 on the ground that the appellant herein has no locus to bring the said motion.
The 1st respondent who was the plaintiff in suit No. C/104/84 sued the Attorney General of Cross River State and the Land Use & Allocation committee, Cross River State claiming ownership of land, which was acquired by Cross River State Government vide acquisition Notice dated 3rd May 1979. In the said suit, the 1st respondent claimed the following reliefs:-
- “A Declaration that the purported revocation of the plaintiff’s rights of occupancy by the NOTICE OF REVOCATION OF RIGHTS OF OCCUPANCY signed by the Military Administrator on 3rd May, 1979 and published in Cross River State of Nigeria Gazette No. 24 of 14th June, 1979 volume 12 deemed to exist regarding the plaintiff’s property at Ekot Inim in Calabar Municipality and covering an area of approximately 11.048 Hectares shown on Survey Plan No. CRS 859 is null and void and of no effect whatsoever in that the said notice of revocation of rights of occupancy for the public interest.
i. Ultra vires the powers of the Military Administrator.
ii. Not for over-riding public interest as the property is being used for purposes other than that stated particularly in the Notice of Revocation.
iii. Capricious
iv. An abuse of power.
2. A Declaration that s.28(1) and (2) of the Land Use Act (Decree No.6 of 1978) does not apply to the plaintiff’s Certificate of Occupancy deemed to exist on all that piece or parcel of land including the developments thereon at Ekot Inim in Calabar Municipality containing an area of approximately 11.048 Hectares shown in Survey Plan No. CRS 859, since that property is for a public purpose and is in the overriding public interest to wit: Constructed to serve as a Health Farm Clinic and Resort; A Blood Bank and Central Diagnostic Laboratory.
3. An injunction to restrain the Defendants, their servants, agents and functionaries from interfering in anyway whatsoever with the plaintiff’s right to occupation, use and enjoyment of the said property for the purpose of Health Farm Clinic and resort; A Blood bank and Central Diagnostic Laboratory.”
After trial and in the judgment delivered on 18th February, 1985, Udofia J. inter alia held that the right of occupancy of the property reverts to the plaintiff who is declared entitled to take appropriate steps to evict any person from the said property and used same for his own purpose. The prayer for injunction was therefore refused. Upon a motion on notice filed on 8/8/2012, the 1st respondent sought and was granted an indulgence to apply for the issuance of execution processes for the purpose of enforcing the judgment in suit No. C/104/84. Subsequently, a warrant of possession was issued and signed at the instance of the 1st respondent. However, the appellant and the 1st respondent entered into an agreement whereby appellant’s staff were to remain in the property until 2nd October, 2012 and it was on account of the said agreement that the execution was halted. Before the expiration date and specifically on 2/10/2012, the appellant filed a motion on notice to set aside the leave hitherto granted to the 1st respondent for the issuance of execution processes of enforcing judgment in suit NO 104/84 as well as the warrant of possession issued in that respect. The learned trial judge refused to accede the appellant’s request.
Dissatisfied with the decision of the High Court, the appellant appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The Court of Appeal determined the appeal based on the four issues for determination distilled by the Appellant which are:
- Whether learned trial judge rightly or wrongly held that the appellant lacks the locus standi to apply to the Court below to set aside enforcement of judgment in C/104/84.
- Whether learned trial judge right held that the appellant who is in physical possession of the property in respect of which, warrant for possession was administratively issued by the Court below can only appeal as an interested party against judgment in C/104/84 as opposed to applying to set aside warrant of possession which was administratively issued by the Court below.
- Whether learned trial judge rightly or wrongly refused to set aside the warrant of possession which was issued administratively for the enforcement of declaratory/non-executory judgment in C/104/84.
- Whether having regard to the mandatory provision of Order XI Rule 5 of the Judgment Enforcement Rules and the undertaking/agreement which is at page 162 of the record of appeal, learned trial judge rightly relied on Exhibits MEV 4 & MEV 5 as proof of execution of the Warrant of Possession in respect of the property in dispute on 27/9/12.
DECISION/HELD
In conclusion, the Court of Appeal found the appeal meritorious and same was allowed.
RATIOS:
- ACTION- LOCUS STANDI: Meaning of locus standi; What a party must show to establish locus standi
- JUDGMENT AND ORDER- EXECUTORY AND DECLARATORY JUDGMENT: Distinction between declaratory and executory judgment
- JUDGMENT AND ORDER- SETTING ASIDE JUDGMENT/ORDER: Circumstances when a Court would set aside its judgment/decision/order
- JUDGMENT AND ORDER- SETTING ASIDE JUDGMENT/ORDER: Principles of law that govern the setting aside of a judgment
- JUDGMENT AND ORDER- EXECUTORY AND DECLARATORY JUDGMENT: Distinction between declaratory and executory judgment
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