THE PERMANENT SECRETARY MINISTRY OF WORKS, ETC. KWARA STATE & ANOR (APPELLANTS)
S. BALOGUN (RESPONDENT)
(1975) All N.L.R. 253
Division: Supreme Court
Date of Judgment: 22nd May, 1975
Before: Coker, Ibekwe and Irikefe, JJ.S.C
APPEAL from the High Court, Lokoja.
The respondent as plaintiff sued the 2nd appellant and the Permanent Secretary, Ministry of Works, Kwara State Challenging the validity of a certificate of title issued by the Permanent Secretary to the second appellant in respect of land covered by the Land Tenure Law Cap. 59, Laws of Northern Nigeria, on the grounds that the Permanent Secretary has irregularly approved the allocation of land to the second appellant, which land had been properly sold to him by his own vendor.
At the trial, the Permanent Secretary raised the defences of (1). The Public Officers Protection Law saying that even if he was wrong in approving the allocation to the second appellant, the plaintiff's action was time-barred by the provisions of S. 2 of that law; and
(2) Estoppel by res judicata. The second defendant also raised estoppel by res judicata. The learned trial Judge accepted the plea of res judicata and struck out the action against the second appellant, but overruled the pleas of the Permanent Secretary on the grounds that the injury to the plaintiff vis-a-vis the Permanent Secretary was a continuing one and that the defence under the Public Officers Protection Law did not avail the Permanent Secretary. He further held that the Permanent Secretary's action was irregular and declared the Certificate of Occupancy invalid. Both the Permanent Secretary and the second appellant appealed to the Supreme Court.
(1) that the plea of time-bar succeeds since the plaintiff's complaint in his statement of claim was that the Permanent Secretary acted irregularly at the time of granting the Certificate and not a continuing injury as the learned trial Judge had based his ruling.
(2) that the trial is a miscarriage of justice, since after striking out the case against the second appellant, he was no longer in the proceedings to defend his Certificate of Title which the learned trial Judge later set aside.
(3) that the mere addition of a new party could not destroy the essence of a plea of estoppel per rem judicatam as the second appellant having been struck out of the case, he was no longer any substantive party before the court, the Permanent Secretary being only a nominal party thereto.
Statute referred to:
Public Officers Protection Law Cap. 111, s. 2.
APPEAL from the High Court, Lokoja.
SUIT No. S.C. 104/75.
Mr T. A. Oyeyipo, Ag. Solicitor-General Kwara State for the 1st Appellant.
Mr P. A. Akintoye for the 2nd Appellant.
Chief A. Okusaga for the Respondent.
COKER, J.S.C. (Delivering the Judgment of the court)-The issues raised on this appeal are of exceptional importance for although they were based substantially on the pleas of res judicata and limitation, they concern as well the consequential orders to be made after these issues shall have been disposed of. The plaintiff, now respondent, had sued the 1st defendant and the Permanent Secretary, Ministry of Works, etc., Kwara State, to set aside a Certificate of Occupancy in the possession of the 1st defendant and issued to him by the 2nd defendant, i.e. the Permanent Secretary, on account of the fraud or misrepresentation of the 1st defendant to the 2nd defendant at the time of obtaining the grant. At the trial in the High Court, Lokoja, the defendants resisted the claim of the plaintiff on two grounds, in limine, as follows:-
(i) res judicata, as the matters sought to be canvassed in the case had been so adjudicated upon in a previous case between the plaintiff and the 1st defendant;
(ii) limitation, as the action of the 2nd defendant complained about took place on the 16th October, 1967 (when he granted the Certificate to the 1st defendant) and the present proceedings were not commenced until the 16th June, 1969. So section 2 (a) of the Public Officers Protection Law, Cap. III was invoked.
The learned trial Judge upheld the plea of estoppel by res judicata and struck out the plaintiff's case as against the 1st defendant leaving only the 2nd defendant, i.e. the Permanent Secretary. The learned trial Judge then overruled the plea of time-bar by virtue of the Public Officers Protection Law, proceeded with the case as against the Permanent Secretary only and at the end of the day gave judgment in favour of the plaintiff setting aside the Certificate of Occupancy which was at all material times claimed by and in the possession of the 1st defendant.
Both defendants have now appealed to this Court against the judgment and had argued that the plea of time-bar against the 2nd defendant should have been upheld and that in any case the plaintiff could not, at least in the present proceedings, defeat the plea of res judicata by adding a nominal party to the proceedings. The argument was sternly resisted by learned Counsel for the plaintiff but we are convinced that the contention of the defendants is well founded. We do not agree with the learned trial Judge that the plea of time-bar did not succeed and we point out that he was in error in basing this ruling on its inapplicability on an issue which was not pleaded by the parties. But apart from this even if the plea is not sustained, after the 1st defendant was dismissed from the action, the action as against the 2nd defendant only became improperly constituted and should at that stage have been struck out. The learned trial Judge did not do this and he had proceeded erroneously to give judgment against the 1st defendant who then had no opportunity of defending his title to and possession of the Certificate of Occupancy. For these reasons at least we are satisfied that the judgment must not be allowed to stand.
The appeals succeed and they are allowed. The judgment of the High Court, Lokoja in Suit No. KWS/11/69, including the order for costs, is set aside and it is ordered that the plaintiff's case be dismissed against both defendants. This shall be the judgment of the court. The plaintiff shall pay to each of the defendants the costs of those proceedings fixed in this Court at
N161 and in the court below at N50.