ASO TIM DOZ INVESTMENT CO. LTD
1, ABUJA MARKETS MANAGEMENT LTD
2 THE HON. MINISTER FEDERAL CAPITAL TERRITORY
MOHEMMED MUSTAPH A, JCA: This is an appeal against the ruling of Honorable Justice M.M, Dodo of the High Court of the Federal Capital Territory, Abuja delivered on the 25th of June, 2010 in Suit No- CV/1613/06, declining jurisdiction; the plaintiff/appellant claims the following reliefs in its amended statement of claim dated 15th January, 2010:
1, A declaration that the plaintiff is the bonafide owner/the administrator of all the shops in the said Garki II Model Market, Abuja.
2. A declaration that the defendant has no legal right over the said market known and situated at Garki II Model Market, Garki, Abuja.
3. A declaration that the Certificate of Occupancy issued to the plaintiffs by the Federal capital Territory and signed by the then Hon. Minister of Federal Capital Territory, IT. Gen. J.T. Useni is still valid and subsisting and the title of the Plaintiff is for 99 years.
4. An order of perpetual injunction restraining the Defendants, their assigns, private agents and by whosoever name called from ejecting, threatening, intimating, harassing or threatening to eject the Plaintiff and its officials from administering and or managing the said market known and situated at Garki II Model Market, Abuja.
5. A declaration that the Defendants are trespassers to the said market.
6. An injunction restraining the Defendants in either by themselves, assigns, private, agents, representatives, whosoever or by whatsoever name called from threatening, intimidating or harassing any of the shop owners/traders or officials of the Plaintiff in the said market.
7. A declaration that the revocation the land and building situated and known as Garki II Model Market, - Abuja with file - No. MFCT/LA/95/MISC/12927 by the minister FCT and or by whosoever purporting to act on his behalf is illegal, unconstitutional and a violation of the plaintiff civil right.
8, An order of this court declaring as a nullity all action taken by the minister FCTA or whomsoever purporting to act on his behalf in respecting of the land and buildings situated and known as Garki IT Model Market, Abuja.
The trial court upheld the preliminary objection of the defendant/respondent, to the effect that it had no jurisdiction to entertain the matter.
Dissatisfied the appellant appealed by a notice of appeal dated the 30th June, 2010, on two grounds, without the particulars as follows:
The learned trial judge erred in law when he held thus:
"Based on the above decision, I am of the firm belief that the 2nd defendant is a public officer hence protected and thus enjoys the fruit of section 2(a) of the public officers Protection Act".
The learned trial judge erred in law when he held that the suit is statute barred when it is "apparent from the Statement of Claim that the 2nd Defendant acted outside the powers granted him under section 28(b) of the Land Use Act.
From these grounds the appellant formulated the following issues for determination by this court:
1. Whether the 2nd respondent is a public officer for him to be protected under section 2 (a) of the public officers protection Act, 2004.
2. Assuming but not conceding that the 2nd respondent is a public officer, whether the revocation of the appellant's Certificate of Occupancy and subsequent re allocation to the 1st respondent can be said to be for an overriding public interest as stipulated in section 28 of the Land Use Act.
On the 2nd day of December, 2015 this court granted an application by the appellant to hear this appeal on the appellant's brief alone; so this appeal is decided on the appellant's brief without those of the 1st and 2nd respondents.
Whether the 2nd respondent is a public officer for him to be protected under section 2 (a) of the public officers protection Act, 2004.
It is submitted for the a.pellant that section 2.(a.). Public Officers' Protection Act only shields a public officer who .is not in default .of the execution of his lawful duty, and that the 2nd respondent is not a public officer by the provisions of section 318 of the constitution because a minister was not mentioned in the definition; learned senior counsel referred the court to ASOGWA V. CHUKWU (2003) 4 NWLR part 811 at 540,OJUKWU V YAR ADUA (2008) 4 NWLR part 1075 at 435 and DADA V ADEYEY (2005) 2005) 5 NWLR part 920.
That also a public officer must not be an elected officer, such as a governor or the president, neither can he be appointed staff, such a minister, but one employed in the public service of the Federation with stated conditions of service.
Section 2 of the public officers' protection Act provides inter alia:
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 Act Of Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, 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 injury within three months next after the ceasing thereof.
Section 318 of the constitution of the Federal Republic of Nigeria (as amended) defines public service of both the Federation of Nigeria and the constituent states as follows:
a)"Public service of the Federation means the service of the Federation in any capacity in respect of the Government of the Federation and includes service as in clerk or other staff of National Assembly or of each House of National Assembly.
It is contended for the appellant that a minister, as in the 2nd respondent does not qualify by the above definition to be a public officer within the meaning of section 2a of the Public Officers' Protection Act, because a minister was not mentioned anywhere.
Yes a minister is clearly not mentioned by name, but does that fact exclude a minister from the category of persons properly called public officers in this regard? Is the minister of the Federal Capital Territory not a public officer, only because he is a "political appointee?
I am of the considered opinion that the public officers' Protection Act covers and applies to not only public officers but also public office holders, who hold their respective offices for, or in trust for the public; that being so, the minister of the Federal Capital Territory is indeed a public officer within the contemplation of the public officers' protection Act.
The word minister is not mentioned, and does not have to be mentioned directly, by section 318 (1) of the Constitution for the minister of the Federal Capital Territory to qualify as a public officer, because the operative word In this regard is "any capacity" in section 318(1) (a) of the constitution; the word means that the list of officers is not exhaustive as mention.
If the section meant to apply for "service" in only the offices listed it would have simply mentioned them ' without the use of the word "includes" and "any capacity", the use of which presupposes the existence of other public officers in addition to the ones mentioned-
In ABUBAKAR & ANR V. GOVERNOR OF GOMBE STATE & ORS (2002)17 NWLR part 797 at 533; this court had this to say:
" .Section 18(1) of the Interpretation Act, Cap. 192, Laws of the Federation, 1990, defines "Public Officer" as meaning "a member of the public services of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria or public service of a State.
Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 defines "the public service of a State" as meaning ,the service of the State in any capacity in respect of the government of the State and includes service as:-
(a) Public service of the federation in any capacity in respect of the government of the federation and includes service as in clerk or other staff of National Assembly or of each House of the National Assembly.
(b) Member of staff of the Supreme Court, Court of Appeal, Federal High Court, High Court of Federal Capital Territory, Abuja, Sharia Court of Appeal of the Federal Capital Territory, the CCA of Federal Capital Territory Abuja or other courts established of the Federation by this constitution and by Act of the National Assembly.
From the above definition, a public officer is a member of the public service, either of the Federation or of the State in any capacity in respect of the Government of the Federation or the State as the case may be.
Paragraph 19 of part 1 to the fifth schedule to the Constitution defines a public officer to mean a person holding any of the offices specified in Part II of the fifth schedule. Paragraph 4 of part II lists the Governor of a State as among public officers. Paragraph 6 specifies the Attorney-General as a public officer, while paragraph 16 names chairman and members of commission or councils as public officers. In that regard, Governor of a State is a member of the Public Service of the State in the capacity of a .Governor in respect of the Government of the State. In other words, a State Governor is a public officer.
Clearly from the forgoing it is clear that contrary to the contention of learned senior counsel to the appellant election into an office or political appointment per se does not disqualify one from being a public officer within the meaning of the Public Officers' Protection Act.
Furthermore, this court cannot help but agree more with the trial court in its reliance on ANOZIE V. AG FRN (2008) 10 NWLR pt. 1095 at 290 which held that:
"although the title of the Public Officer's (Protection) Law implies a Law to protect "public officers'1 and not "public offices" government positions such as Attorney General, Permanent Secretary, Inspector General of Police etc. although "Public Offices" they are nonetheless "Public Officers in Law".
It follows therefore that the Minister Federal Capital Territory is a public officer within the context of section 2 A of the Public Officers' Protection Act:
"...A public officer is a holder of a public office...has some authority conferred on him by law fixed tenure which has some permanence or continuity... has the power to exercise some amount of sovereign authority of function of government..."AIYETAN V. NIG.
INSTITUTE OF OIL PALM RESEARCH (1987)6 SC.
The agents of the Federal Government cannot be excluded from the protection of the Act meant for the good of the public, in the way and manner contemplated by learned senior counsel for the appellant; accordingly this issue is resolved against the appellant, and in favour of the respondents.
Having resolved this issue to mean that the 2nd respondent is a public officer protected by section 2(a) of the public officers' protection Act, the implication is that the trial court had therefore no jurisdiction to hear and determine the matter from that moment on, as the matter was admittedly filed outside the mandatory three months period, and that being so, there is basically no need to proceed to determine the other issue for determination left, as it has become academic in the absence of jurisdiction by the trial court; but be that as it may, I will proceed to determine the other issue just in case I am wrong. Put differently, for whatever it is worth.
Whether the revocation of the Appellant's Certificate of Occupancy and its subsequent allocation to the 1st respondent who is a limited liability company can be said to be for the sake of overriding public interest as stipulated in section 28 of the Land Use Act.
It is submitted for the appellant that the action of the 2nd respondent in this regard is not protected by 'section 2(a) of the Act; he referred the court to ALI V GOVERNOR OF BORNO STATE (2008) ALL FWLR part 408 at 367 and HASSAN V. ALIYU & 2 ORS (2010) 7-12 SC at 51, and contended that the action of a public officer is protected only if he acted within the confines of the Act.
Learned counsel further submitted that the land in dispute can only be revoked from the appellant and allocated to the 1st respondent for overriding public interest as provided for in section 28 (2) (b) of the land Use Act.
That the acquisition must be for no other reason than public purpose; learned counsel referred the court to TENIOLA V. OLOHUNUN (1999) 5 NWLR part 602 at 280, LASON V. AJIBULU (1991) 6 NWLR part 195 at 44 and ADOLE V. GWAR (2008) 11 NWLR part 992 at 530. That also the purported revocation was illegal and unlawful, transferring nothing to the 1st respondent ab initio, learned senior counsel referred the court to ESTATE OF GENERAL SANI ABATCHA V. EKE SPIFF (2008) JAN-MARCH NSCQR VOL. 37 at 364, OSHO V. FOREIGN FINANCE CORPORATON (1991) 4 NWLR part 184 at 157 and DANTSOHO V. MOHAMMED (2003) 6 NWLR part 817.
Learned senior counsel submitted that it is an abuse of statutory power to revoke a grant of statutory right of occupancy from a private company and grant same to another private company,
Section 28 of the Land Use Act is indeed the law empowering the governor, or in this case the Minister of the Federal Capital Territory to revoke a right of occupancy granted by him or deemed granted by him; the relevant parts of the section for the avoidance of doubt read as follows:
28(1) it shall be lawful for the governor to revoke a right of occupancy for overriding public interest.
(2) Overriding public interest in the case of a statutory right of occupancy means (b) the requirement of the land by the government of the state or by local government in the state, in either case for public purpose within the state, or the requirement of the land by the government of the Federation for public purposes of the Federation.
The issue for determination now is whether the revocation in this case was done in accordance with section 28 (2) of the land Use Act, i.e. for overriding public interest
The appellant's grouse is that the 1st respondent is a limited liability company like the appellant, and so the situation is akin to robbing Peter to pay Paul. But is the 1st respondent your run of the mill limited liability company? No, I don't think so.
The 1st respondent is the Abuja Markets Management Ltd; clearly a market management Company established by the Federal Capital Territory, to manage the market for the public good,
Paragraph 6 of the plaintiff/appellant's statement of claim reads in part:
"That sometime this year, the official of the Federal Capital Territory Administration met with the plaintiff management and verbally expressed their interest to take over the management of the said market..."
Paragraph 7 of the same statement of claim reads:
"The officials of the Federal Capital Administration told the plaintiff that they will enter into negotiation with a view to paying compensation to the plaintiff if eventually they take over the market."
Now these averments clearly show that even the plaintiff knows that the 1st respondent is not just any limited liability company, in business just for profit, but a company meant for the running of the market for the benefit of the public, under the control of the 2nd respondent.
Section 2(b) of the Land Use Act once again defines public interest for which land which was otherwise allocated to an individual could be revoked as:
"the requirement of the land by the government of the state or by local government of the state or by local government in the state, In either case public purposes, within the state or the requirement of the land by government of the federation for public purpose..."
Clearly the 2nd respondent did not revoke the right of occupancy of the plaintiff to allocate same to any individual, or any other company, but rather a company set up by government to run the affairs of the market for the public, not for private use; and that means that the action of the 2nd respondent is covered adequately by section 28(b) of the Land Use Act; the revocation was indeed for the public purpose. See WUYAH V. JAMA'A LG, KAFANCHAN (2011) LPELR (9078) CA where it was held:
"By virtue of the prescription of section 28(1) and (3) of the Land Use Act, the deemed right of the appellant could only be legitimately revoked foe overriding public interest or purposes. Section 51 of the Act, the definition section, sets out, in extensor, acts that constitute public purposes thus:
51(1) In this Act, unless the context otherwise "public purposes, includes -
(a) For exclusive Government use for general public use;
(b) For use body corporate directly established by law or by anybody corporate registered under the companies and Allied Matters Act as respects which the Government owns shares, stocks or debentures.
Accordingly this issue too is resolved in favour of the respondents, and against the appellant.
Having resolved the two issues for determination in favour of the respondents, and against the appellant the appeal fails for lack of merit, and it Is accordingly dismissed; the ruling of the trial court declining jurisdiction is hereby affirmed-
Parties to bear their respective costs.
MOORE A. A. ADUMEIN, JCA: I read in draft form the judgment just delivered by my learned brother, Mohammed Mustapha, JCA.
Having resolved the threshold issue, namely Issue No. 2, in favour of the respondents against the appellant, I agree that this appeal ought to be dismissed as it lacks merit. I also dismiss this appeal.
There is no order for costs.
TANI YUSUF HASSAN, (JCA): I had the opportunity of reading before now the judgment just delivered by my learned brother, Mohammed Mustapha, JCA.
I agree with the reasoning therein. I also dismiss the appeal.
C.I. Okoye Esq., with: M.J. Nume for the Appellant