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IN THE HIGH COURT OF THE FEDERAL CAPITAL

TERRITORY

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HON JUSTICE VALENTINE B. ASHI

SUIT NO. FCT/HC/CV//1960/14

16th March, 2016

With him:

Ifeoma Esther Eze (Mrs) ……………. Legal Assistant

E. T. Balami, Esq ………………………… Registrar

Yusuf Auta & Austina Chika ………… Clerks

BETWEEN

DIVENTION HOLDINGS LTD……………………………Plaintiffs

And

ABUJA METROPOLITAN MANAGEMENT COUNCIL & 2

ORS………………………………………………………….Defendants

JUDGMENT

On the 3rd of July, 2014 the plaintiffs caused an Originating

Summons to issue against the defendants, praying for the

determination of eleven questions, namely:

1. Whether the legislative powers to make laws for the federal

capital territory is vested exclusively on the national

Assembly having regards to the combined provisions of

Section 299 (a) and (b) of the 1999 constitution of the

Federal Republic of Nigeria 1999 (as amended).

2. Whether considering the provisions of Sections 4(6) and (7),

299 (a) (b) and (c) of the 1999 constitution of the Federal

Republic of Nigeria 1999 (as amended) the defendants can

exercise any power or do anything not empowered by the

constitution or an Act of the national Assembly.

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3. Whether the annual land use contravention charges, levy, or

fees imposed by the defendants as penalty for using and/or

operating an office within premises or buildings in the

federal Capital Territory is imposed pursuant to any Act of

the National Assembly or provided for, by the Constitution

of the Federal Republic of Nigeria 1999 as amended.

4. Whether the Defendants can exercise any power to levy

annual land use contravention charges, levy, or fees as

penalty for using and/or operating an office within premises

or buildings in Federal Capital Territory, Abuja without an

Act of the National Assembly authorizing or imposing such

levies, charges or fees.

5. Whether having regards to the combined provisions of

Sections 4(6) and (7), Section 299 (a) and (c), Section 1(2)

and (3) and item 10 in part II of the Second Schedule to the

1999 Constitution of the Federal Republic of Nigeria 1999

(as amended) and the Nigerian Urban and Regional Planning

Act, Cap N138 laws of the Federation of Nigeria 2004, the

defendants are empowered to impose or prescribe, fees or

levy annual land use contravention charges as penalty for

using and/or operating an office within premises in the

Federal Capital Territory, Abuja.

6. Whether the act of the defendants in collecting the total sum

of N500,000.00 (Five Hundred Thousand Naira) from the

Plaintiff as annual Land use contravention charges in

respect of Plot 692, Cadastral Zone A07, Wuse II, District –

Abuja for the use of the property known and better

described as No. 164, Ademola Adetokunbo Crescent, Wuse

II – Abuja as office premises is in line with the provision of

Section 36 (8) and (12) of the Constitution of the Federal

Republic of Nigeria 1999 (as amended) and the Nigerian

Urban and Regional Planning Act, Cap N138 Laws of the

Federation of Nigeria 2004 or any other law whatsoever.

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7. Whether the Defendants can without any form of verifiable

yardstick, arbitrarily levy and impose various sums of

money as annual Land use contravention charges in respect

of Plot 692, Cadastral Zone A07, Wuse II, District – Abuja as

penalty for using and/or operating an office within premises

known and better described as No. 164, Ademola

Adetokunbo Crescent, Wuse II – Abuja as office premises.

8. Whether the defendants are entitled by law to deviate from

the provisions of its enabling Act – Nigerian Urban and

Regional Planning Act, 2004 by imposing and demanding

from the Plaintiff to pay annually various sums of money as

Land Use contravention charges in respect of Plot 692,

Cadastral Zone A07, Wuse II, District – Abuja as penalty for

using and/or operating an office within premises in the

Federal Capital Territory, Abuja.

9. Whether an Act of the National Assembly such as the

Nigerian Urban and Regional Planning Act, Cap N138, Laws

of the Federation 2004 or any other law whatsoever confers

upon the defendants power to impose or levy sums of money

as annual Land Use contravention charges or penalty for

using and/or operating an office within premises in the

Federal Capital Territory, Abuja.

10. Whether by the combined Provisions of Sections 4(6) and

(7), Section 299(a) and (c); 1(2) and (3) and item 10 in part II

of the Second Schedule to the 1999 Constitution of the

Federal Republic of Nigeria 1999 as amended and Nigerian

Urban and Regional Planning Act, Cap N138 Laws of the

Federation of Nigeria 2004 made any provision for the

defendants to levy, impose annual Land Use contravention

charges within the Federal Capital Territory Abuja of

commercial purpose.

11. Whether the imposition of Land Use contravention charges

does not ipso facto tantamount to a conviction and

imposition of a fine for criminal offence or a breach of a law

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when the offence and the penalty therefore has not been

prescribed for by a written Law in compliance with the

Provisions of Section 36(12) of the Constitution of the

Federal Republic of Nigeria 1999 (as amended).

RELIEFS

In the hope of securing favourable answers to the foregoing

questions the Plaintiff claims against the Defendants a total of

eight reliefs, namely,

1. A DECLARATION of this Honourable Court that by virtue of

section 4(6) and (7); 299(a),(b)(c) of the Constitution of the

Federal Republic of Nigeria, 1999 as amended and item 9

and 10 of Part II second Schedule to the 1999 constitution

of the Federal Republic of Nigeria 1999 as amended, the

power to make laws for the collection of any tax, fees,

contravention charge or penalty within Federal Capital

Territory is exclusively vested in the National Assembly.

2. A DECLARATION of this Honourable Court that by virtue

of the Provisions of Sections 4(6) and (7); 299(a),(b) (c) of the

Constitution of the Federal Republic of Nigeria, 1999 as

amended and item 9 and 10 of Part II second Schedule to

the 1999 constitution of the Federal Republic of Nigeria

1999 as amended, the defendants cannot exercise any

power including the power to collect any tax, levy, fees,

penalty and/or rate as annual contravention charges for the

use of premises and/or apartment for office or commercial

use within the Federal Capital Territory unless the same has

been prescribed for by and Act of the National Assembly.

3. A DECLARATION of this Honourable Court that the act of

the Defendants imposing a monetary penalty as annual

Land Use contravention charge for the use of premises

and/or apartment for office or commercial use within the

Federal Capital Territory when same has not been

prescribed for by an Act of the national Assembly or

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pursuant to any existing law is ultra vires, illegal and

unconstitutional.

4. A DECLARATION of this Honourable Court that the act of

the defendants in collecting the sum of N500,000.00 (Five

Hundred Thousand Naira) from the Plaintiff as Land Use

contravention charges or penalty for the use of the property

known and better described as No. 164, Ademola

Adetokunbo Crescent, Wuse II – Abuja for office and/or

commercial purpose is arbitrary, unreasonable an is not

supported by any law or Act of the National Assembly and is

therefore unlawful, illegal, unconstitutional and ultra vires

the power of the Defendants.

5. A DECLARATION of this Honourable Court setting aside the

1st defendant’s letter with Reference No.

AMMC/DC/2014/0447 dated 14th day of March, 2014 and

titled Charges for Land use Contravention in respect of Plot

215, Cadastral Zone A08, Wuse II District – Abuja served on

the plaintiff as null and void and of no effect whatsoever.

6. AN ORDER OF PERPETUAL INJUNCTION restraining the

Defendants whether by themselves, their agents, servants,

privies and assigns however called and in whatsoever

manner from levying, imposing, demanding and enforcing

the collection of any annual Land Use contravention charge

for the use of designated premises for commercial of office

purposes within the Federal Capital Territory Abuja.

7. AN ORDER of this Honourable Court directing and

mandating the 1st Defendant to return the total sum of

N500, 000.00 (Five Hundred Thousand Naira) being the

amount of money collected by the 1st defendant from the

Plaintiff as annual contravention charges in respect of Plot

692, Cadastral Zone A07, Wuse II, District – Abuja for the

use of the property known and better described as No. 164,

Ademola Adetokunbo Crescent, Wuse II – Abuja as office

purposes.

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8. The sum of N100, 000.00 (One Hundred Million Naira) as

Exemplary and Aggravated damages against the defendants

jointly and severally for sealing off the plaintiff’s premises

without lawful justification.

The summons is supported by a 27 paragraph affidavit deposed to

by Ms. Rachael Ahiante, staff of plaintiff. A concise narrative of

plaintiff’s complaint as may be gleaned from the affidavit is that

they are real estate professionals operating from No. 164

Ademola, Wuse 11, a.k.a Plot 215 Cadastral Zone A08, Wuse 11,

within Jurisdiction. Defendants are statutorily and variously

concerned with, among others, the administration or management

of municipal services within the FCT.

By Cadastral Zone A08 a letter vide Reference No.

AMM/DC/CF/2014/0447, dated 14/03/2014 and addressed to

plaintiff company, 1st defendant demanded that plaintiff pays to it

N1, 582, 966.00(One Million, Five Hundred and Eighty Two

Thousand, Nine Hundred and sixty six Naira) as annual; and use

contravention charges in respect of their use of No 164 Ademola

Crescent/plot 215, Wuse 11.1 Consequent upon non-compliance,

1st defendant would prosecute plaintiff at the Urban and Regional

Town Planning Tribunal under statute.

The plaintiff had no choice but pay into 1st defendant’s Zenith

Bank Account, a total of N500, 000 as part payment of the total

sum charged, just so as to stave off incessant acts of harassment,

intimidation, assault and siege of premises, thereby impeding

access to and disrupting smooth business transactions in the

premises.

Plaintiff deposed that it is aware that no law validly made by

parliament has authorized the activities of the Defendants, which

measures are tantamount to imposing a tax and enforcing penal

sanction for violation of same at the same time. It is for the

foregoing, I suppose, that plaintiff approached this Honourable

1 Paragraph one of the letter (Exhibit ‘D’ to plaintiff’s affidavit) indicted plaintiff for carrying out commercial

activity in the premises in violation of Abuja Master plan.

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court the way it did. Upon being served, the defendants filed a 34

paragraph counter affidavit, deposed to by Mr. Aliyu Hassan, Chief

of Estates, of the 2nd Defendant. His own story in defence of

plaintiff’s allegations is that some of the plaintiff’s depositions are

either totally incorrect or are just less than candid. He deposed

that the defendant acted within the law, relying on an approved

master plan in regard to which they are mandated by law to

ensure strict adherence, but in contravention of which sanctions

are imposed in line with the provisions of the Land Use

Regulations made by the Hon Minister. Consistent with the master

plan and the regulations, the 1st defendant developed a manual to

guide their work of enforcing adherence to the master plan, which

has designated certain places as residential and others as

commercial. Approval must be given for the use of land for either

purpose. Plaintiff obtained approval for the use of the res the

subject matter of action as a residential premises but were now

seen by defendants to be carrying on commercial activities

therefrom. Defendants considered this to amount to unauthorised

conversion of purpose of land use, which is intolerable and

violative of the master plan of the FCT, in consequence of which

they invoked appropriate sanctions prescribed in the regulations

against it by imposing the sum complained of as penalty, which

sum represents 5% of the annual value of the property.

Defendant joined issues with plaintiffs upon the allegation that it

has been serially harassed, embarrassed and intimidated by the

defendants, who have also been extorting sums of money as

annual land use contravention charges. While not specifically

denying the acts of storming the premises and sealing it off as

alleged by plaintiff in paragraph 15, 16 and 17 of affidavit in

support of summons, defendant however explained that it gave the

plaintiff adequate time to comply with the demand notice for

payment before it embarked on the siege. On this fact the

Defendant deposed in paragraphs 27, 28 and 29, respectively, as

follows:

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“27. That contrary to the depositions in paragraphs 14, 15, 16

and 17, respectively of the affidavit in support, the originating

summons the 1st and 2nd defendant actually gave the plaintiff a

stipulated time within which to pay up the amount charged…failing

which the …defendants will apply the measures prescribed in both

the Development control Manual and the FCT Land Use

Regulations to ensure either reversion to the original land use or

payment of the charges on the premises.”

“28. ….Plaintiff was given more than enough time to remove

whatever he considered valuable in the premises before the

office would be closed to enable him revert to the original

land use”

“29. …the Defendants have a duty to bring all activities that

are carried out in contravention of the land use of any plot to

an end”

Both affidavits of parties were accompanied with written

submissions. Plaintiff also filed Reply on points of law.

On the 11th of June, 2015, learned counsel for the respective

parties adopted their written submissions and judgment was

reserved. However, on the 26th of February, 2016, learned counsel,

in response to a special invitation from court, were expected to

further make clarifying in-put to their earlier submissions on,

among other queries, the following:

1. Whether the Urban and Regional Planning Act imposed any

penalty for contravention of the Act,

2. Whether the Honourable Minister or some public authority is

empowered to impose such penalty by regulation under the

Urban and Regional Planning Act

3. Whether there is any law protecting [the] master plan of the FCT

The defendant filed a written submission in response to the above,

queries, which it adopted on that day, in open court but the

Plaintiff informed the court that it had nothing further to urge

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beyond its initial submissions, both on points of mixed law and fact

in support of its affidavit in support of the summons and the reply

on points of law to the defendants’ counter-affidavit. I have studied

all the processes in this proceeding, including the written

submissions of counsel.

I have observed that both learned counsel have gone ahead to

formulate issues for determination beside the questions submitted

to court in the originating summons. In my respectful view, this

approach is completely out of order and if endorsed will certainly

lead to absurd outcomes. The action commenced by way of an

originating summons with questions of law for determination. It is

very much different from an action commenced by writ of summons

where, as might be expected, there are serious disputations on the

facts and the law bearing thereon. In my view, there is usually no

need for an affidavit in support of an originating summons,

except in order to assist in bringing the contents of documents

to the attention of court by way of exhibits. In my further

respectful view, the questions formulated and endorsed on the

originating summons per force constitute the issues for

determination. There ought not to be separate questions distilled

from those questions, except where, for convenience and ease of

treatment only, learned counsel in his written submission decides

to consolidate, merge or collapse some of the issues and argue

them together. I have found out that the plaintiff’s address is the

more violative of this approach than that of the defendants. Indeed,

to my mind, question number two in the defendants’ written

submission is sufficient in dealing with and disposing of this case.

For the forgoing reasons and in the interest of justice, I hereby

discountenance the [fresh] questions formulated by learned counsel

in their respective written submissions and shall stick to the

questions for determination presented in the originating summons.

Resort shall, however, be made to aspects of the respective written

submissions of counsel as the need shall arise. But, in doing so

successfully, as stated earlier, it is not out of place to collapse a

number of the questions as endorsed on the originating summons

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and treat them together. Accordingly, upon a close scrutiny of the

questions as endorsed on the summons I consider Question one as

superfluous and uncalled for as there cannot be any question as to

whether the National Assembly exercises exclusive legislative

competence over all subject matters within the FCT. However, I do

hope to answer it anyway. Going further, I also consider it

convenient to treat as one, Questions 2, 3, 4, 5, 6, 8, 9 and 10,

respectively, by collapsing them into one to read:

“Whether the sum of N1, 582, 966.00(One Million, Five Hundred and

Eighty Two Thousand, Nine Hundred and sixty six Naira) imposed

on the plaintiff by the 1st Defendant as annual land use

contravention charges in respect of the use of No 164 Ademola

Crescent/plot 215 Cad Zone A08, Wuse 11 is supported by law”.

Questions 7 and 11 can be treated separately.

On the consolidated question, whether the sum of N1, 582,

966.00(One Million, Five Hundred and Eighty Two Thousand, Nine

Hundred and sixty six Naira) imposed on the plaintiff by the 1st

Defendant as annual land use contravention charges in respect of

the use of No 164 Ademola Crescent/plot 215 Cad Zone A08, Wuse

11 is supported by law, I have taken into account the contents of

Plaintiff’s Exhibit “D1”, being a letter addressed to the plaintiff by

the 1st Defendant, demanding of the said sum.

Learned counsel to plaintiff, at pages 26-28 of their written

submission contended that the imposition of the sum of money,

having been described in plaintiff’s Exhibit D1 as “land use

contravention charge” is in the nature of a penalty for criminal

misconduct. Submitted that there is yet no statute of Parliament

creating an offence for which such a sanction may be imposed and

no such statute has authorised the defendants to impose such

punishment on contraveners, so to speak. Cited in support the

definition of the word “contravention” in the 7th edition of Black’s

Law Dictionary, p.329, which in his view defines contravention as

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penalty for an offence.2 Submitted that Urban and Regional

Planning Act relied upon by 1st Defendant in imposing the

contravention Charge as contained in Exhibit D13 does not create

or prescribe such a penalty.

Responding, learned counsel to the Defendants in his written

submission contended that their action is supported by the Land

Use Regulation made by the Honourable Minister of FCT as a

subsidiary instrument to statutory grant of power so to do in

Section 46(2) of the Land Use Act as well as the “manual of land

use” issued by the same authority.

In resolving the foregoing contending views put forward by the

respective learned counsel, specific attention need to be paid to the

contents of Plaintiff’s Exhibit “A” reads:

“The Manager,

Divention Holdings Ltd

No.164 Ademola Adetokunbo Crescent

Wuse 11

Abuja,

CHARGES FOR LAND USE CONTRAVENTION IN RESPECT OF PLOT

215 CAD ZONE A08, WUSE 11 DISTRICT-ABUJA

The Department of Development Control AMMC has observed

that the activity (commercial) you are carrying out on the

above mentioned property is contravening the Land Use and

therefore against the provisions of Abuja Master Plan

2. In view of the foregoing you are required to pay annual

contravention charges for violation, details of which are as

follows:

Outstanding Charges to year 2012 N Nil

Current Charge: Year 2013 N1, 682, 966.00

…………………………..

Total = N1, 682,966.00

2 See also, Stroud’s Judicial Dictionary, [7

th Ed] p. 548 and Words and Phrases legally Defined, [4

th Ed] p. 489

3 S.36 (12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal

offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this

subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary

legislation or instrument under the provisions of a law.

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“You are hereby notified to make full payment of N1,

682,966.00…within (2) weeks from the date of this

letter or your premises will be sealed immediately and

you will be arraigned before the Urban and Regional

Planning Tribunal…”

4. Please, obtain official receipt after payment …

Yahaya A. Yusuf

For: Coordinator, AMMC”

It is clear from the above provision that the defendants based

their action on the Urban and Regional Planning Law and not on

Regulations made pursuant to the Land Use Act or any “manual”,

so to speak. The so-called manual was not presented before us

and there is nothing to show that it exists, beyond the reference

made to it by the defendant in his defence. In the circumstance it

seems to me appropriate not to place any reliance on it.

Meanwhile, I have scrutinized the Urban and Regional Planning

Act as well as the Regulations made as subsidiary legislation

under that Act but I cannot find any provision which suggests

that persons who converted their residential plots to commercial

plots without approval or who may have otherwise violated the

purpose of approved land use under the Act, shall have their

premises sealed up before being prosecuted for the alleged

offence of violation of “land Use” before the Tribunal.

However, Learned counsel to the Defendants, in his defence of

the claim, side-stepped the Urban and Regional Planning Act,

which the 1st Defendant relied upon as shown in the Plaintiff’s

Exhibit ‘D1’ hereof and chose to dwell on the Land Use

Regulations under the Land Use Act as made by the Honourable

Minister of the FCT. This reformed approach, in my opinion is an

afterthought that is inspired by an attempt at scheming for

possible defences for the 1st Defendant’s action against the

plaintiff. Be that as it may, I am of the further view that

notwithstanding the manner and time the idea of the Minister’s

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Regulations under the Land Use Act was invoked as a defence,

since it is a point of law, which in raising it the way they did and

the plaintiff not having complained that he was ambushed or

taken by surprise, it is appropriate to examine it further. Indeed,

the Plaintiff even filed a Reply on points of law and

extensively argued that the Regulations are even ultra vires

the power of the Minister to make. In my view, a combined

reading of Section 3 and Items 1 – 5, of the Fourth Schedule to

the FCT Land Use Regulation do actually impose various sums as

penalty for unauthorised conversion of land use from one

purpose to the other, such as what is complained of by the

defendants against the plaintiffs in this proceeding. However, as

stated earlier, while not seriously doubting the existence of the

sanctions in the Regulation, learned counsel to the plaintiff, has

however, at pages 4-5 of his written submission contended that

Section 46(2) of the Land Use Act, which grants power to make

regulations for land use does not contain a provision empowering

the Minister to impose a contravention charge for land use. As

such, he further submitted, it would seem that the Minster may

have unilaterally enlarged the scope of power granted to him by

statute. The sub-section reads:

“2. The Governor may, subject to subsection (1) of this

section, make regulations with regard to the following

matters:

(a) The method of application for any licence or permit

and the terms and conditions under which licenses

may be granted;

(b) The procedure to be observed in revising rents;

(c) The fees to be paid for any matter or thing done

under this Act;

(d) The forms to be used for any document or purpose”

Based on the above provision, learned counsel to the plaintiff

submitted at p.5, para 9 and 10 that:

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“9. …the powers of the ‘Governor’ to make regulations

under the Land Use Act is strictly circumscribed by the

above provisions. The Governor cannot go outside the

provision of law to make regulations at large covering

just about any subject

10. …there is nothing in the entire Land Use Act that

provides for Land Use Charges or even Land Use

Contravention Charges. There is also nothing in the

entire Land Use Act that prescribes dichotomy between

use of land for commercial purposes and for residential

purposes”.

There is merit in the argument that whatever ministerial power to

make subsidiary instrument is alleged to have been exercised,

such exercise, in fact ought to conform to and be circumscribed

within the scope of statutory limit under the enabling statute,

account being taken of the need to avoid having to act in breach

of the entrenched principle that a subsidiary legislation ought not

to override the primary legislation from which the power to make

it is derived from.4 It seems quite appropriate, therefore, from a

purely literal perspective, to come to a conclusion akin to that of

learned counsel to the plaintiff hereof, to the effect that in the

absence of an express provision in S. 46 (2) of the Land Use Act

conferring power to make regulations that impose land use

[contravention] charges, the Honourable Minister in the

circumstances under review acted ultra vires his power under

statute. However, adopting that approach, in my view is to

unduly subscribe to a literal construction of the subsection that

is likely to work hardship. Instead of doing this, it is better to ask

the question, what purpose did parliament aim to attain when it

granted any power at all to the Governor/Hon Minister to make

4 Olanrewaju v Oyeyemi & Ors (2001) 2 NWLR (Pt. 697) 229, Din v. A. -G., Federation (1988) 4 NWLR (Pt.87) 147; Gov., Oyo State v. Folayan (1995) 8 NWLR (pt.413) 292 at 327 and Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506 at 621

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Regulations? It is not out of place to conceive that the legislature

surely intended that the Minister would more securely and

efficiently manage and superintend the management of land use

under his territorial control if he could freely make regulations as

best he knows, including the imposition of penalties and other

sanctions for non-compliance, in order to instil order, discipline

and a sense of responsibility in the human elements within his

statutory control. Wouldn’t it be quite appropriate to consider

that as part of the disciplinary measures he must take, he needs

to infuse some sanction for non-compliance with law and

regulation? I am of the view that it is correct to think so.

It may be argued, at least on a general plane, that the operation

of the maxim Expresso unis et exclusio alterus acts to help us

delimit the scope of exercise of statutory power, so that since

there is no express provision, it would be wrong to read into

Section 46 of the Land Use Act what is just not there. As already

stated, that can only be a general principle, in that under Section

10 (2) of the Interpretation Act, it is provided that where an

enactment, confers power to do any act it shall be construed as

also conferring all such other powers as are reasonably necessary

to enable that act to be done or are incidental to the doing of it.

Furthermore, Section 12 of the same Act provides that where no

express power is given for the imposition of penal sanction in

making a subsidiary instrument, the power so conferred shall be

interpreted as including the power to prescribe punishments for

contravention of provisions of the instrument, not exceeding as

respects a particular contravention imprisonment for a term of

six months or a fine of one hundred naira or both.

Furthermore, in the law of interpretation, the first rule is the

literal rule of construction, if this will be sufficient to discern the

intent of parliament in enacting the law. However, where undue

adherence to literalism becomes fetish and will result in absurd

consequences and promote “internal strife” (within the statute) in

attempting to uphold the true intent of parliament, the court will

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resort to the golden rule, which in modern times embraces what

is now described as the purposive approach to statutory

construction.5 The golden rule of interpretation is that where the

words used in the Constitution or in a statute are clear and

unambiguous, they must be given their natural and ordinary

meaning unless to do so would lead to absurdity or inconsistency

with the rest of the statute. See, Nigerian Army v. Aminu Kano

(2010)5 NWLR (Pt.1188) 429, SARAKI v. FRN (2016) LPELR. And,

in my view, the legislature can never intend to legislate

absurdities. In order to achieve a purposive and harmonious

interpretation that would avoid having to create inconsistencies

between two or more sections of the same statute, it is pertinent

to read the entire statute integratively as a single whole. To this

end, it is important to explore all the sections of the Land Use Act

with a view to ensuring harmony as a necessary foundation or

centripet of parliamentary intent. For example, in Section 5 of the

Land Use Act, for instance, it is provided that:

“Section 5 1 It shall be lawful for the Governor in respect of land, whether or not in an urban area- a to grant statutory rights of occupancy to any person for all purposes”

Taking the above underlined words “for all purposes” into account, when read together with Section 46(2) of the Act earlier highlighted, it seems to me appropriate to reason that paragraph(C) of Sub-section 2 of S. 46, which reads: “the fees to be paid for any matter or thing done under the Act” more than not suggest that in granting a statutory right of occupancy, in an urban area (“for any purpose”), for instance, the Governor may specify that the land shall be used for commercial or residential purpose as he deems fit and proper and also impose sanctions for non-compliance with the terms of grant, such as the payment of fees or forfeiture for violating or contradicting the purpose of use, either as commercial or

5 See, Pepper (Inspector of Taxes) v Hart (1993) 1 All ER 42

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residential. To this end, with due respect, I find no merit in and will not be disposed to endorsing the argument of learned counsel to the plaintiff that the Land Use Act confers no power on the minister to make regulations imposing land use charges or land use contravention charges or that there is no legal foundation for a dichotomy of land into commercial in contradistinction with land for residential purposes. Be that as it may, I am nevertheless of the view that while the Land Use Act in specific sections clearly empowers the Governor to impose fees and penalties as sanctions for conduct violative of the Act,6 Section 46(2) does not appear to expressly empower the Governor[Minister] to impose fees or penal sanctions on a violator. However, as earlier pointed out, Section 12 of the Interpretation Act provides, that where an Act confers a power to make a subsidiary instrument, proclamation or notification, the power shall include power to prescribe punishments for contravention of provisions of the instrument, not exceeding as respects a particular contravention, imprisonment for a term of six months or a fine of one hundred naira or both. Based on this provision, it seems to me appropriate to reason that the imposition of a contravention charge is permissible but the sum of N1, 682,966 exceeds the threshold set by section 12(1)(c) of the Interpretation Act. That section, as earlier stated provides that where it is necessary that a subsidiary instrument should impose a penalty, such penalty must not exceed 6 months or a fine of N100. Moreover, taking into account the statement in the plaintiff’s Exhibit D1, which has been reproduced above, to the effect that he should make full payment of such a huge amount within two weeks or “your premises will be sealed up immediately” is not only oppressive, unreasonable and repugnant to business best practices in a lassaize fairre and democratic society, it is ultra violative of the fundamental right to fair hearing enshrined in Section 36 (1) of the 1999 Constitution as amended, which provides that:

“In the determination of his civil rights and

obligations, including any question or 6 Example, Section 5 (1) (e) and (f) which empowers the Governor to impose penal rent in certain

circumstances

Page | 18

determination by or against any government or

authority, a person shall be entitled to a fair

hearing within a reasonable time by a court or

other tribunal established by law and constituted

in such manner as to secure its independence and

impartiality.”

The decision to unilaterally seal up premises in a self-help

manner, whether residential or commercial, whether of a tenant

or squatter has impact on the civil rights of the plaintiffs such

as the right to ownership of private property, which necessarily

includes private enterprise.7 It also affects the right to shelter as

well.8 Furthermore, I am of the strong view that even the deadline

given for compliance by the plaintiff, a limited liability company is

quite thoughtless, unimaginative and unconscionable. How

practicable, if one may ask, would it be for a limited liability

company such as the plaintiff to convene a Board meeting within

2 weeks in order to take a decision on the notice contained in

Exhibit “A”? This is very crucial because, a company acts

through its board, especially in regard to pay-outs from the

company’s funds. Admittedly, it may be rightly argued that any

director can take a decision on behalf of the Board and have it

ratified subsequently. Such a line of reasoning should not be

given the leverage to unduly thrive in the intellectual space, in

the context of our review here, in that acts done on behalf of a

company in anticipation of ratification are an option that is

necessitated by extreme urgency. No urgency is disclosed in

Exhibit “A” or even in the affidavit. All the forgoing reasons in

this paragraph, taken together justify the reason why there

ought to be an impartial arbiter, in the light of Section 36(1)

of the constitution, convened to determine the respective

claims of the parties, including the rate or basis of

assessment of the contravention charge; hence self-help in

enforcing statutorily prescribed sanctions as the defendants

7 See, generally, Sections 43 and 44 of the constitution

8

Page | 19

did is not conduct that is backed by law. Rather, it is conduct

violative of a constitutionally prescribed method of

enforcement. If truly the first defendant feels that the plaintiff

has contravened ministerial regulations as claimed, he has no

right to proceed to enforce the sanction without recourse to the

law courts. He has no power to seal up premises without a valid

order of court.

We are no longer in the military era when such conduct was more

the rule than the exception. We now have a constitution that

guides the conduct of affairs and exercise of power by public

functionaries and authorities. In the case of Shittu Mohammed v

FHA9 decided in July, 2013, in awarding monetary compensation

in an action by a citizen who paid to purchase a house but was

cheated out by the housing authority, without also having his

money refunded, I stated that

“I think we have come to a stage in this country where

even the courts have to formulate a policy of ‘judicial

social responsibility’, specifically targeted at curbing

the predatory power of public authorities and

functionaries. Public institutions, especially those that

appear to have the undue privilege of monopoly of a

range of services have a penchant for careless and

capricious treatment of fellow citizens, especially where

there exists no option of resorting to an alternative

service provider.

For long have the citizens of this country been

marginalized by those who are supposed to serve

them. This phenomenon has been hugely exacerbated

by the long period of military rule, when civil servants

hid behind the soldiers’ jack boot or the butt of the

assault rifle to oppress and marginalize other people,

without any sense of service. But today we have a

9 (Unreported) Suit No: FCT/HC/CV/3581/13, Delivered on 22-07-2013

Page | 20

constitution to guide and check every conduct of

public servants – executive, legislative and judicial.

The courts must not allow the people of this country to

be subjugated to the whims and caprices of its civil

service and the beaurocracy anymore. If we do we

would be guilty of making the citizenry, the majority

among whom are the weak and helpless, to become

constitutional orphans when they are not.”

Again, in a subsequent decision in the case of The Registered

Trustees of Hotel Owner’s Forum Abuja (HOFA) & ors v Hon

Minister of FCT10 in condemning the sealing of hotel premises in

Abuja as a means of recovering some humongous sums of money

under the guise of enforcing a penal regulation made by the

Minister of the FCT, I did observe that:

“The generality of Nigerians look forward to having as

many foreign investors as possible to come and help us

build infrastructures in energy, industrial and

manufacturing enterprises, etc. In this way also many

youths will be employed. But there must be a

congenial business environment to encourage capital

inflow. The type of laws we have in place and the way

we enforce them matters a lot. Given all that I have

observed in regard to all the queries in the originating

summons so far, it is very unlikely that a foreign

investor would like to come and invest in a hotel in

Abuja or establish an industry that has hotels and

guest houses as the primary consumers of its

products.

Let us even imagine a situation where a prospective

foreign investor flies into Abuja and checks into one of

the hotels and one morning he wakes up to find that a

truck load of “task force” men have just arrived the

premises in a commando style with chains, seals and

10

. (Unreported), SUIT NO. FCT/HC/CV//1448/13 delivered on the 14th

of May, 2014

Page | 21

locks in hand, chasing everyone around, arresting

some and hounding them into the waiting truck; seal

up or luck up the entrance lobby door, with some staff

scampering into safety like panic stricken dogs with

tails in-between their hind limbs! What a site will that

be? Pleasant, encouraging? Certainly not.

What international investors like to avoid is polities

with high tariff regimes, coupled with a siege mentality

imposed by a jaundiced law enforcement machinery. It

is for this reason that I hold that the high tariffs and

fees contained in the purported Regulations under

review, aside from being illegal and oppressive are

repugnant to public policy in this context”.

I here affirm and am prepared to re-echo and promote these

ideals wherever possible or practicable, because they bear the

finger prints of the “living law” of Dean Roscoe Pound of the

Harvard School of Jurisprudence, Hon Justices Thurgood

Marshall and Oliver Wendell Holmes, both of the Supreme Court

of the United States, and other greats that gave modern American

realism and the sociological school, the mark of the living law

through the courts.

Those whose interests are directly affected by the conduct of

public functionaries ought not to declare a fast before their

liberty can be secured. Rather, they ought to invest their hopes in

the law courts as the laws have within them sufficient levers and

bulwarks against inviolability of individual liberties and

freedoms. In the case in hand for instance, Section 36 (1) of the

1999 Constitution demands that any measure taken against any

person that may affect his civil (not military) rights and

obligations should first be submitted for determination by the

court a court of competent jurisdiction, constituted in such a way

as to guarantee its independence and impartiality. Anything

short of that is self-help. And this could lead to anarchy. It is

even more urgent in our case that the defendants should submit

Page | 22

to the courts in these circumstances and not to resort to self-

help, because as we have already noted, the basis of assessment

of the charges imposed (by a subsidiary instrument), is suspect

seems to stand in conflict with the provisions of a principal Act –

Section 12 (1) (C) of The Interpretation Act. For emphasis, even

under the Criminal Procedure Code, section 398 to be specific, a

court can only make a lock- up or sealing-up order as a second

line disciplinary measure, where there is a report of a failure to

obey an earlier and subsisting order to pay a fine imposed under

any penal law. Again, under Sections 29 and 43, respectively of

the EFCC [Establishment] Act, the commission may only take

over property or attach sums of money held by suspect in a bank

account, being the subject of on-going investigation for crimes

committed under the enabling and similar statutes, only after it

might have obtained from a court for that purpose, an ex parte

interim order of forfeiture or freezing as the case may be. By

extension, I am of the view that the defendant cannot and was in

error to have made embarked on the sealing up of the plaintiff’s

premises without a lawful order of court first had and obtained. It

may be argued that both the CPC and EFFC Act from which the

examples are drawn are very expressive on this measure.

However, in my view the silence of the Land Use Regulation on

this cannot justify self-help regard being had to the equally

express provision of Section 36 (1) of the Constitution.

Having determined that the measures taken by the Defendant to

secure compliance with the regulation complained of amount to

resort to self-help and, therefore, patently illegal and unjust, it is

now the ripe time to consider the remedies. Of particular

significance is the claim for N100, 000,000 (One Hundred Million

Naira) as exemplary and aggravated damages against the

defendant. In Obinwa v. C.O.P. (2007) 11 N.W.L.R. (Pt. 1045) 411

at 426-427, paras. G-C (CA), Michael Owoade, and JCA stated

that:

"Exemplary damages will be awarded against a defendant in

three instances. These are:

Page | 23

(a) Where there is an express authorization by statute.

(b) In the case of oppressive, arbitrary or unconstitutional action

by the servants of the government.

(c) Where the defendant's conduct had been calculated by him to

make a profit for himself, which might well exceed the

compensation payable to the plaintiff.

In order to succeed, a plaintiff must be able to prove any of the

three conditions. He needs not prove all the three conditions to

succeed. Once any of the three conditions is proved, a court of

law will award exemplary damages. In the instant case, the

action of the 1st-3rd respondents could not be tied to any of the

above conditions to warrant the award of exemplary damages

against them. Ezeani v. Ejidike (1964) 1 ALL NLR 402; A.R.E.C.

Ltd., v. Amaye (1986) 3 NWLR (Pt. 31) 653; Eliachin (Nig.) Ltd. v.

Mbadiwe (1986) 1 NWLR (Pt. 14) 47; Williams v. Daily Times

(Nig.) Ltd. (1990) 1 NWLR (Pt. 124) 1; Iluono v. Chiekwe (1991) 2

NWLR (Pt. 173) 316 “

In my view, the plaintiff’s case falls within the second category.

We have already determined the illegality and unconstitutionality

of the Defendant’s action. A plaintiff is entitled to award of

exemplary damages once he can establish that the conduct of the

government official has been proved to be unlawful and bereft of

justifiable foundation. The only factor that must not be ignored in

assessing exemplary damages is that it must not be too high and

therefore burdensome for the defendant to pay. Secondly, there

ought not to be separate sums awarded in two different heads of

clam, distinctly styled “exemplary” one the one hand and

“aggravated” on the other hand. That would amount to double

compensation, since the two share some affinity in terms of

purpose of award.

Nevertheless, aggravated either could be claimed solely, but

where both are claimed one single award suffices. In regard to

aggravated damages, Emmanuel Obioma Ugwuegbu, JSC in

Page | 24

Odiba v Muemue, (1999) 6 SC (Pt. 1) 157 stated that: "Aggravated

damages may be awarded where the damages are at large and

the conduct of the defendant was such as to injure the plaintiff's

proper feeling of dignity and pride."

It is common ground in this proceeding that the Plaintiff is a

limited liability company engaged in managing property and real

estate consultancy services. And that the defendants are

variously, a cabinet minister and other functionaries charged,

among others, with the super intendment of land rights in the

F.C.T. In paragraphs 16 - 21of the plaintiff’s affidavit in support,

it is deposed that:

(16) That surprisingly, the Defendants’ officers again

stormed the Plaintiff’s office premises on the 15th day

of May, 2014 with thugs and heavily armed policemen

to seal off the entire office premises by fastening the

main entrance gate with a huge chain and padlock for

the reason that the Plaintiff had failed to pay the entire

annual contravention charges.

(17) That the 1st defendant equally sealed and locked

up the entire business premises including the cars

belonging to the Plaintiff’s staff despite entreaties from

the plaintiff’s staff to allow them move their cars and

person belongings out of the premises before sealing

up the premises.

(18) That all the entreaties and plea from the

plaintiff’s staff aforesaid fell on deaf ears as the 1st

defendant’s officers forcefully locked the entire office

premises with a connected series of metals links

fastened together with a padlock to the main entrance

gate. The defendant officers equally pasted an

adhesive notice with the inscription ‘sealed’ written on

it on the main entrance gate to the premises

immediately beneath the chain and padlock.

(19) That by the 1st defendant’s unlawful act of

sealing up the business premises of the plaintiff

Page | 25

despite all the entreaties from the plaintiff for failure to

pay the aforesaid contravention charges or levy, the

defendants had prevented the plaintiff from carrying

out its day to day business activities thereby causing

loss of income from the patronage of its clients and

customers.

(20) That I know as a fact that the unlawful sealing of

the aforesaid premises has hindered the plaintiff’s

business and had occasioned loss and damage to the

plaintiff and eroded the plaintiff’s professional

credibility and reputation because significant part of

plaintiff’s business is consultancy which involved

having meetings with clients and other business

visitors and making presentations within the offices of

the plaintiff charged its clients.

(21) That as a result of the aforesaid nature of the

plaintiff’s business, its staff must necessarily work

from the office with the aid of computer and other

equipments to produce business documents for clients

which also contributes significantly to the overall

revenue of the plaintiff.

(22) That as a result of the 1st defendant’s sealing of

the business premises aforesaid, the plaintiff’s revenue

and income has been plummeting because clients are

no reluctant to visit the plaintiff’s offices and the

overall productivity of the plaintiff’s staff has declined

sharply owing to the sealing of the plaintiff’s premises

and the plaintiff’s inability to work effectively from the

office.”

However, in paragraphs 27-31 the Defendant has this to say:

“27. That contrary to the depositions in paragraphs

14, 15, 16 and 17 of the affidavit in support of the

originating summons, the 1st and 2nd defendants

actually gave the plaintiff a stipulated period within

Page | 26

which to pay up the amount charged for the violation

of the land use failing which the 1st and 2nd

defendants will apply the measures prescribed in both

the Development Control manual and the FCT Land

Use Regulations to ensure either reversion to the

original land use or payment of the charges on the

premises.

28. That contrary to the averments in paragraphs 17

and 18 of the affidavit in support of the originating

summons, the plaintiff was given more than enough

time to remove whatever he considered valuable in the

premises before the office would be closed to enable

him revert to the original land use.

29. That paragraphs 19, 20, 21, and 22 of the

affidavit in support of the originating summons are not

true as the defendants have a duty to bring all

activities that are carried out in contravention of the

land use of any plot to an end.

30. That it was only when the 1st and 2nd

defendants indicated that they were not going to allow

the plaintiff to continue with the illegal conversion that

the plaintiff made additional payment of N300,000.00

(Three Hundred Thousand Naira Only) bringing the

total amount paid to N500,000.00 (Five Hundred

Thousand Naira Only).

31. That up till now, the plaintiff has not completed

the amount due and payable by him for it legal

conversion of the land use of Plot 215, Cadastral Zone

A08, Wuse II Abuja.”

The proper inference I can draw from the defendant’s deposition

as above is that of an implied admission that the defendants did

take the actions but that they felt justified by some statutory

instrument. But we have since seen that their method and

thoughts about the rightness of their actions are not well founded

Page | 27

in law. We have already determined that their conduct is legally

reprehensible, oppressive, reckless and unjustifiable. That,

indeed is the foundation for the award of aggravated damages,

because in a claim for aggravated damages, it is insufficient to

merely show that the defendant has committed the wrongful act

complained of. Rather, the motive and conduct of the defendant

aggravating the injury to the plaintiff would be taken into

consideration in the assessment of compensatory damages. In

WESTERN PUBLISHING COMPANY LTD & ANOR v. FAYEMI

(2015) LPELR-24735(CA), it was held that:

“In claim for aggravated damages, the motive and

conduct of the defendant aggravating the injury to the

plaintiff would be taken into consideration in the

assessment of compensatory damages. It is trite law

that in order to justify an award of aggravated

damages, it is not sufficient to show simply that the

defendant has committed the wrongful act complained

of. His conduct must be high-handed, outrageous,

insolent, vindictive, oppressive or malicious and

showing contempt of the plaintiff's rights or

disregarding every principal which actuates the

conduct of civilized men.” 11

Taking all of the above discourse into consideration, and keeping

in mind that there is no evidence as to when the assault on the

plaintiff’s premises ceased, thereby entitling me to infer that it is

not a case of continuing damage, I hereby assess compensation

for the injury to the plaintiff to be N15, 000,000 (Five Million

Naira) to be jointly paid by the defendants to the plaintiff as

exemplary and aggravate damages. This is in addition to the

liability of the defendants to refund the excess of the sum of

money (N500, 000) so far collected from the plaintiff by the 1st

Defendant as land use contravention charge, which sum is above

11

Per MSHELIA, J.C.A at Pp. 110-111, paras. F-B.. ODIBA v. AZEGE (1998) 9 NWLR (Pt. 566) 370, (1998) 7 SC (Pt.

1) 79 and AFRIBANK (NIG) PLC v. SYLVESTER ONYIMA (2004) 2 NWLR (Pt. 858) 654. Referred to.

Page | 28

the amount (N100) approved by Parliament in Section 12 (1)(c) of

the Interpretation Act, in these circumstances.

A concise summary of all I have said so far is that the

Honourable Minister of the FCT has the statutory power to

make Land Use Regulations and categorize land into

commercial, residential or any other purpose. He, however

lacks the statutory power to impose a sum higher than N100

land contravention charge. Moreover, even if no more than

N100 was imposed as contravention charge, the Defendants

have no right to seek to enforce the regulation by sealing off

premises to ensure compliance without a valid order of

court, first had and obtained. In consequence I hold that the

plaintiff’s claim succeeds substantially. In summary, judgment

is hereby entered for the plaintiff against the defendants

collectively, as follows:

1. Question one is answered in the affirmative

2. Questions 2 is not answered in the affirmative

3. Question 3 is answered in the affirmative only to the extent

that the charges are legitimate under ministerial regulation

made pursuant to a broad interpretation of the power of the

Governor, which is exercisable in the FCT by the Minister

under Section 46(2) of the Land Use Act. However, the

amount charged in this case is prohibitive and illegal,

regard being had to Section 12 (1) (C) of the Interpretation

Act.

4. Distinct and separate answers to Questions 4, 5, 6, 7, 8, 9,

10 and 11, respectively are unnecessary as these are

already imbedded in the answers to Questions 2 and 3,

respectively

Finally and ultimately,

1. It is hereby declared that the actions of the defendants,

there agents, servants or privies laying siege to, forcefully

Page | 29

taking over and sealing of the plaintiff’s premises at No. 164

Adetokunbo Ademola Crescent Wuse 11, purporting to

enforce a violation the Urban and Regional Planning Act or

any statutory instrument whatsoever is illegal,

unconstitutional and ultra vires their power under statute

2. It is hereby further declared that the sum of N1, 582,

966.00(One Million, Five Hundred and Eighty Two

Thousand, Nine Hundred and sixty six Naira) as annual

land use contravention charges in respect of the plaintiff’s

use of No 164 Ademola Crescent/plot 215, vide a letter

Reference No. AMM/DC/CF/2014/0447, dated 14/03/2014

is illegal and ultra vires their power under statute in that

Section 12(1)(C) of the Interpretation Act has

established a threshold sum of N100 (One Hundred

Naira) in these circumstances.

3. It is further declared that the defendant’s attempt to recover

from the plaintiff the sum of N1, 582, 966.00(One Million,

Five Hundred and Eighty Two Thousand, Nine Hundred and

sixty six Naira) as the purported land use contravention

charge, without recourse to the law courts is violative of

Section 36 (1) of the 1999 Constitution, as amended

4. The said letter, Reference No. AMM/DC/CF/2014/0447,

dated 14/03/2014 is hereby set aside

5. The defendants, by themselves, servants agents and privies

are hereby restrained from further attempts at recovering

from the plaintiff any sum of money as the outstanding

balance of the sum of N1, 582, 966.00(One Million, Five

Hundred and Eighty Two Thousand, Nine Hundred and

sixty six Naira), purporting same to be land use

contravention charge in respect of No. 164 Ademola

Crescent, Wuse 11.

6. The defendants, by themselves, servants agents and privies

are hereby restrained from further attempts at recovering

Page | 30

from the plaintiff any sum of money, purporting same to be

land use contravention charge without following due

process of existing law as spelled out in Section 12(1)(C) of

the Interpretation Act and Section 36(1) of the 1999

Constitution as amended.

7. The Defendants are jointly ordered to refund to the plaintiff

any sum so far collected from the plaintiff, which is in

excess of the N100 (One Hundred Naira) threshold spelled

out in Section 12 (1) (C) of the interpretation Act.

8. The Defendants jointly are hereby ordered to pay to the

plaintiff the sum of N15, 000, 000 (Fifteen Million Naira) as

exemplary and aggravated damages for sealing up of the

plaintiff’s premises at No. 164 Adetokunbo Ademola

Crescent, Wuse 11

9. Defendants shall pay 10% post judgment interest per

annum on the total judgment debt of N15, 500,000(Fifteen

Million, Five Hundred Thousand Naira)

Valentine B. Ashi

Hon Judge

Appearance

F.R. Onoja, Esq (with E.D.Moi-Wuyep, Esq, A.O.Ochogwu, Esq) for the

Plaintiff

Cyprian O. Agashieze, Esq for the Defendants