IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT APO

Transcription

1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT APO BEFORE HIS LORDSHIP, HON. JUSTICE U.P KEKEMEKE MOTION NO. FCT/HC/M/389/11 DATE: 23/10/13 BETWEEN: MRS. OLGA Y. JALO...PLAINTIFF/APPLICANT AND 1. HON. MINISTER OF FCT, ABUJA 2. ANCHORAGE HOLDINGS LIMITED)....DEFENDANTS/RESPONDENTS R U L I N G By a Motion on Notice dated the 1 st day of July 2013, brought pursuant to Order 7 Rules 5, 18 and 23 of the High Court of the FCT, Abuja (Civil Procedure) Rules, 2004 the 2 nd Defendant/Applicant prays this Court for an Order striking out the name of the 2 nd Defendant on the ground that the Writ of Summons, Statement of Claim and Witness Statement on Oath did not disclose any reasonable cause of action nor any triable issue against the 2 nd Defendant. The 2 nd Defendant/Applicant s Counsel rely on the 12 paragraphs Affidavit sworn to by Peter Ilegogie of 20 Olukole Street, Surulere while moving the application. I shall reproduce the essential paragraphs of the Affidavit. 5. That I was informed by Admiral Okhai Mike Akigbe and the information I verily believe to be true. a. That the said processes did not disclose any reasonable cause of action or any triable issues against the 2 nd Defendant. 1

2 b. That the 2 nd Defendant at all material time is not privy to the transaction, contract and negotiation for the sales of the 2 nd Defendant s land to the Plaintiff by the 1 st Defendant in this suit. c. That there is no allegation that the 2 nd Defendant is aware of any purported sale of the said land to the Plaintiff, neither is she aware of the revocation of the Plaintiff s Certificate of Occupancy in respect of the 2 nd Defendant s land. d. That the 1 st Defendant s letter dated 02/11/12 attached to the claim before this Court did not in any way suggest any allegation against the 2 nd Defendant who had been the original allottee of the said land in dispute. e. That the 2 nd Defendant is the lawful allottee of Plot No. FCT/ABU/MISC/7 as evidenced by her attached Certificate of Occupancy and ground rent receipts attached as Exhibits B and C. f. That the present suit as presently constituted is an abuse of Court process and brought malafide just to embarrass the 2 nd Defendant who is not a proper party to this suit as no triable issue has been made out against her. g. That it is in the interest of justice to strike out the name of the 2 nd Defendant from the suit as its joinder is a misjoinder causing her great losses in terms of payment of Solicitor s fees to defend the suit. The Plaintiff/Respondent reacted by filing a counter Affidavit on the 16 th day of July The said counter Affidavit is sworn to by Chiazor Ndigwe of 2 Libraville Street, Off Aminu Kano Crescent, Wuse II, Abuja. She essentially deposes as follows: 1. That paragraphs 5-11 of the Affidavit in support of the 2 nd Defendant s Motion on Notice are not true, that they are deliberate falsehood. 2

3 2. That 1 st Defendant granted to the Plaintiff a statutory right of occupancy in respect of the parcel of land lying, situate and being at Plot 4130 having an area of approximately square metres in Cadastral Zone AO4 Asokoro Abuja. 3. That barely 6 months after the 1 st Defendant issued Certificate of Occupancy number 1404W-88 baz 5144r -1022a-10 dated 11 th May 2012, with respect to the said Plot, 1 st Defendant by a letter dated 02/11/12 revoked her right of occupancy with respect to the said Plot of land citing prior existing title on the land as the reason for the revocation. 4. The Plaintiff in the substantive suit has stated that the 1 st Defendant revoked her right of occupancy over the said Plot 4130 and reallocated same to the 2 nd Defendant. 5. That the 2 nd Defendant has started large scale construction and development on the said plot of land, an averment the 2 nd Defendant expressly admitted. 6. That the revocation of her right of occupancy with respect to plot 4130 Cadastral Zone Ao4 Asokoro, Abuja is illegal and wrongful. 7. That the 2 nd Defendant is a necessary party and hence rightly joined. The 2 nd Defendant s Counsel adopted his written address filed along with the application. In the said application, he raised only one issue for determination which is whether or not the Plaintiff has disclosed a triable issue against the 2 nd Defendant. Learned Counsel submits that the Plaintiff has no reasonable cause of action against the 2 nd Defendant. That the 2 nd Defendant cannot be made liable to any perceived wrong or actions of her assignors. That throughout the averments, there is no single fact or documentary evidence to prove the Plaintiff s assertion that the land in dispute was revoked because of the 2 nd Defendant. Learned Counsel to the 2 nd Defendant further canvassed that the Court does not act on speculation. That an action against a Defendant who the Plaintiff has no claim against is incompetent. 3

4 He finally submits that the action against the 2 nd Defendant is an abuse of Court process. The Plaintiff s Counsel also adopted his written argument as his oral submission but submitted two issues for determination. 1. Whether from the amended statement of claim, the Plaintiff has disclosed a reasonable cause of action against the 2 nd Defendant. 2. Whether the Plaintiff s suit is an abuse of the process of Court. On the first issue, Plaintiff/Respondent s Counsel submits that the Writ of Summons and Statement of Claim show that the Plaintiff has a reasonable cause of action against the Defendants. The Learned Counsel to the 2 nd Defendant fell in error when he isolated few averments in the Plaintiff s Statement of claim to reach a conclusion that same has not disclosed a reasonable cause of action. He urges the Court to resolve the issue in favour of the Plaintiff. On the second issue, Learned Counsel submits that both the Affidavit in support of the Motion and Counsel s written argument cannot take the place of a positive prayer. That there is no prayer on the Motion paper praying the Court to strike out the case for being an abuse of Court process. That he did not ask for the suit to be struck out for being an abuse of Court process but for the 2 nd Defendant s name to be struck out from the suit. He further canvassed that the Defendant s argument that this suit is an abuse of Court process lacks substance. He finally urges the Court to resolve the issue in favour of the Plaintiff/Respondent. I have read the Affidavit evidence of the parties and considered the written addresses of Counsel. In my view, the sole issue for determination is as postulated by the 2 nd Defendant s Counsel in his written address which was reacted to by the Plaintiff in his address in opposition. 4

5 Whether the Plaintiff has disclosed a reasonable cause of action against the 2 nd Defendant in his Writ of Summons and Statement of Claim. In A.G. FEDERATION VS. AG. ABIA STATE & 35 OTHERS (2001) 11 NWLR (PT.725) P. 689 AT 733, the Supreme Court held: A cause of action has been defined to mean the fact or facts which establishes or gives rise to a right of action and that it is the factual situation which give a person the right to judicial relief. On the reasonableness of cause of action, the Supreme Court further held at page 733: It is sufficient for a Court to hold that a cause of action is reasonable once the statement of Claim in a case discloses some causes of action or some questions fit to be decided by a Judge notwithstanding that the case is weak or unlikely to succeed. The fact that the cause of action is weak or unlikely to succeed is no ground to strike or omit. In MILITARY GOVERNOR ONDO STATE & 5 ORS VS. KOLAWOLE & 4 ORS (2008) 405 S.C. PT. 11, P.158 AT , the Supreme Court held: Cause of action has been held to mean every fact which is material to be proved to entitle a Plaintiff to succeed or all those things necessary to give a right to relief in law or equity. See also ABUBAKAR VS. BEBEJI OIL & ALLIED PRODUCTS LTD & 2 ORS. (2007) 2 S.C. 48 AT 79. ELABANJO & ANOR. VS. DAWODU (2006) 607 S.C. 24 AT 43. 5

6 In CHEVRON NIG. LTD VS. LNGE STAR DRILLING NIG. LTD (2007) 7 S.C. PT. 11 P. 27, the Supreme Court held per Oguntade, JSC as follows: A party ought not to be precluded from putting across his case in a full trial except on the clearest indication that the action is denuded of all merits even on the supposition that the averments in the Statement of Claim are deemed as admitted by the Defendant. On the materials from which to determine whether there is a reasonable cause of action, the Supreme Court in CHEVRON NIG. LTD. VS. LONE STAR DRILLING NIG. LTD (Supra) held: That in determining whether there is a reasonable cause of action, the Court must confine itself only to the averments in the Statement of Claim and not the nature of the defence which the Defendant may have to the Plaintiff s claim. The Court at that stage does not concern itself with the prospect of the case eventually succeeding or lack of it. See also the case of MILITARY GOV. ONDO STATE VS. KOLAWOLE & 4 ORS. (Supra). I shall therefore proceed to examine the averments in the Statement of Claim. I shall reproduce relevant portions of the amended Statement of claim filed on 24/04/ The Plaintiff is a business woman and resides at No. 4B Lees Road, Ikoyi, Lagos State. 2. The 1 st Defendant is an Officer appointed by the President of the Federal Republic of Nigeria pursuant to the 1999 Constitution to be in charge and oversee the affairs and administration of the F.C.T, Abuja. 3. The 2 nd Defendant is the person to whom the 1 st Defendant reallocated the Plaintiff s parcel of land being, lying and situate at Plot 4130 Cadastral Zone AO4, 6

7 Asokoro District, Abuja whose permanent address is Plot 1171 Mike Adenuga Close, Victoria Island, Lagos. 5. The Plaintiff avers that on the 12 th November 2007, she applied to the 1 st Defendant for the grant of a statutory right of occupancy to enable her own a plot of land in the FCT, Abuja. 7. The Plaintiff avers that by a letter dated 11 th April 2007, the 1 st Defendant granted the Plaintiff the statutory right of occupancy in respect of the parcel of land situate, lying and being at Plot 3130 having an area of approximately square metres in Cadastral Zone AO4, Asokoro Abuja. 9. That Plaintiff paid to the 1 st Defendant through AGIS N1,910,936,9 the requested initial bill for the grant of a Statutory right of occupancy. 11. The Plaintiff avers that she paid another N1 Million being remaining balance for the grant of statutory right of occupancy. 15. The Plaintiff avers that after she paid all the relevant fees and satisfied the condition precedent to the issuance of a Certificate of Occupancy, the 1 st Defendant issued to her Certificate of Occupancy number 1404W-88 baz 5144r a-10 dated 11/05/12 and registered as No at page 1 in vol. 207 of the Certificate of Occupancy registered in the Land Registry, Abuja. 16. That after being issued with the Certificate of Occupancy, she started making arrangement with her architects and Engineers to commence the development of the land. 17. The Plaintiff avers that to her utter shock and consternation and barely six months after she was issued with the Certificate of Occupancy, she received a letter dated 2/11/12 revoking the right of occupancy over the parcel of land. 18. The reason given by the 1 st Defendant for revoking her right of occupancy was because of a prior subsisting title over the said plot. 19. The Plaintiff avers that the 1 st Defendant revoked her right of occupancy over the parcel of land being lying and situate at plot 4130 Cadastral Zone AO4, Asokoro District, Abuja and reallocated same to the 2 nd Defendant. 7

8 20. That at the time the 1 st Defendant granted her right of occupancy, the 1 st Defendant did not inform her and she did not know there was a prior existing title on the parcel of land. 22. That the 2 nd Defendant has commenced large scale development and construction on the site. The Plaintiff claims: 1. Declaration that the revocation is illegal, wrongful, null and void. 2. A declaration that the Plaintiff is the rightful owner. 3. That the Plaintiff s Certificate of Occupancy is still valid and subsisting. 4. An Order setting aside the revocation. 5. An Order of Perpetual Injunction restraining the 2 nd Defendant s agents, privies and servants from occupying and or remaining in possession of the parcel of land. 6. A perpetual injunction restraining the 2 nd Defendant from developing the parcel of land. 7. An Order directing the 2 nd Defendant to vacate the said land and surrendering possession, etc. From the above averments reproduced from the Amended Statement of Claim, it is clear in my view that the Plaintiff has a grudge against the 2 nd Defendant in respect of its occupation of the parcel of land known and situate at Plot 4130 Cadastral Zone AO4 Asokoro District, Abuja. It is also clear that both the Plaintiff and the 2 nd Defendant are laying claim to the same piece of land. Reliefs V, VI, VIII, and XI are directed against the 2 nd Defendant. There is no way this matter can be decided or resolved without the interest of the 2 nd Defendant not to be attached. The averment in paragraph 19 is poignant. The 1 st Defendant revoked Plaintiff s right of occupancy over the said parcel of land and reallocated same to the 2 nd Defendant. It is my view and I so hold that the Amended Statement of Claim discloses some facts which give a right to the Plaintiff for a relief. It discloses in my 8

9 view some cause of action to be decided or resolved as between the Plaintiff and the 2 nd Defendant. The bone of contention is the Plot of land in question. From the averment, the 2 nd Defendant is in possession and is carrying out construction in a massive scale. The Plaintiff is claiming the said piece of land and is urging the Court in its claim or relief to cause the eviction of the 2 nd Defendant in its land. What else can be a reasonable cause of action. It is my view and I so hold that the Amended Statement of claim discloses a reasonable cause of action. On the issue of joinder, this Court ruled on same when the application for joinder was moved. This Court adopts that ruling and shall not be dragged into making a further pronouncement on same. From the totality of reasons given above, the Motion fails and it is dismissed. Suit is adjourned to 9/12/113 for further mention. Parties absent. F.C. Ani for the Plaintiff/Respondent. Ivoke Ezekiel for the 1 st Defendant. A.S. Gobere holding the brief of Peter Ilegoge for the 2 nd Defendant. Signed. Hon. Judge 23/10/13. 9