*Falana Petitions NJC, Seeks Sanctions Against Justice A.S. Umar Of Abuja High Court For Allegedly Playing ‘Father Xmas’ To Shehu Malami, Unlawful Eviction Order
By Osigbesan Sultan Luqman, EDITOR
The Case:
Supreme Court No: SC/373/2015
Court of Appeal No: CA/A/370/2012
High Court No: FCT/HC/CV/1056/10
BETWEEN
Appellants/Respondents
1. Ambassador Alhaji Shehu Othman Malami
2. Sir Emeka C. Offor
AND
Respondents/Applicant
1. Mr. Imonkhuede Ohikhuare
2. The Hon. Minister Federal Capital Territory (RESPONDENT)
3. Federal Capital Development Authority (RESPONDENT)
4. Mohammed Habib Aliyu (RESPONDENT)
In the last decade or so, Nigerians have been traumatized by one act of impunity or the other with devastating impact on economic and traditions of democratic accountable governance. The current challenges facing the country, that is corruption, insurgency, low foreign direct investments, rising unemployment and crime rate among the youth and the poor global perception of Nigeria on safety and quality of life index stand testament to the impact of both enforcement of rule of law and inadequate stand against acts of impunity, whose practitioners’ personal mantra appears to be “we don’t give a damn; anything goes and nothing will happen to us”.
Between 2007 and 2015, these acts of lawless behaviours and impunity rose to a crescendo as a few politically privileged rich, in connivance with public officials, literally snatched for themselves the Nigerian common wealth to feed their personal greed and ego. These brazen acts of barefaced looting, abuse of the rule of law and impunity then continued to spread into all facets of the Nigeria State.
The foregoing, it appears, gave rise to the landmark case herein presented, which is before the Supreme Court of Nigeria for final determination, and concerning which rights activist and legal icon, Mr. Femi Falana (SAN) has also petitioned the National Judiciary Council (NJC) seeking sanctions against Justice A.S Umar of an Abuja High Court over his alleged roles in the illegal and unconstitutional takeover of the property of a Nigerian-American by Ambassador Alhaji Shehu Othman Malami and Sir Emeka Ofor.
This is the six-year-old travail of Mr. Imonkhuede Ohikhuare, a 66-year-old Nigerian-American retiree who returned to his Fatherland to invest his savings in retirement real estate he built for himself and his family on Plot No 1809, Asokoro, Abuja, Federal Capital Territory (FCT), mirrors the foregoing.
While Mr. Ohikhuare and his family are the only ones currently being force fed the bitter taste of impunity and man’s inhumanity to man over Plot No 1809, Asokoro, Abuja and the well apportioned two-wing duplexes the retiree built on the choice land, not a few Nigerians at home and in the Diaspora are keenly following Mr. Ohikhuare’s journey through the Nigerian Judicial System to reclaim his property from the duo of Elder Statesman, Sokoto Prince former Nigerian Ambassador and Chairman, Abuja Electricity Distribution Company AEDC, Alhaji Shehu Malami and Sir Emeka Offor, chairman, Enugu Electricity Distribution Company (EEDC) and Chrome Oil & Gas Company.
Although the Nigerian Bar and Bench are currently receiving sticks from many quarters, Mr. Ohikhuare has the Almighty God, the Justices of the Court of Appeal and his team of conscientious Senior Advocates of Nigeria (SAN) to thank for the great expectations he currently has that he has not laboured in vain to buy and build Plot 1809, Asokoro, Abuja as our story herein tells in full.
Ohikhuare’s battle to reclaim his property is today at the final hurdle – the Supreme Court of Nigeria – and he is very hopeful because the highest Court of the land has over the years held back the hands of impunity via a very strong precedent or jurisprudence constante, for both itself and all lower courts.
Against the grains of current criticism, it is a fact of historical jurisprudence that in the dispensation of justice, the Nigerian Supreme Court justices have shown in the past that they can uphold the principle of the rule of law in absolute disregard for the ulterior scheming of those given to impunity in this country, regardless of political, tribal, religious or social standings of those who went before the Apex Court.
And so, legal fireworks are scheduled to start off in full swing at the Supreme Court, Abuja on May 17, 2016 over the ownership of the choice plot of land situated at Plot No 1809, Asokoro, Abuja, Federal Capital Territory (FCT), on Mr. Ohikhuare, has built a two-wing duplex valued at over N1 billion.
This latest and last possible stage of litigation on Plot No 1809, Asokoro, Abuja is at the instance of Ambassador Malami, and Sir Emeka Offor, who are making a last-ditch attempt at the Supreme Court to keep Plot No 1809, Asokoro and the billion naira edifice built on it by Mr. Ohikhuare, which was restored to the latter via a landmark Court of Appeal, Abuja Division judgment delivered on May 28, 2015.
If the matter gets to start off properly as scheduled at the Supreme Court on May 17, 2016, Counsel to Malami and Offor, Joe Agi (SAN) A. Kayode (SAN) Jeph C. Njikonye, Esq and Mark Mailumo, Esq, according to a Notice of Appeal dated June 1, 2015 and sighted by The Dream Daily, will be seeking three reliefs for Malami and Offor from the apex court, to wit
1. To set aside that part of the decision where the lower Court resolved the 1st Respondent’s issues 1,2,3 and 4 (see below) in favour of the 1st Respondent as Appellant and against the Appellants as 1st and 5th Respondents.
2. To set aside that part of the decision where the lower Court set aside the entirety of the Judgment of the Trial High Court with cost of N30,000.00 against the Appellants.
3. To restore the decision of the Trial High Court.
The Second Appellant/Applicant in this matter before the Supreme Court, Sir Offor himself swore to the affidavit in support of this Motion on Notice at the Registry of the Supreme Court, Abuja on July 3, 2015.
Counsel to the Appellant plan to marshal their arguments in favour of Malami and Offor on six Grounds of Appeal.
However, Lead Counsel to Mr. Ohikhuare, Mr. Paul Erokoro (SAN) in a Motion on Notice dated November 19, 2015 and brought under Order 6 Rule 9 of the Supreme Court Rules and also sighted by The Dream Daily is praying the Apex Court for:
1. AN ORDER striking out this appeal, the Appellants/Respondents having failed to file their brief of argument within the time specified by the Rules of this Honourable Court.
2. AND SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.
Furthermore in the Motion on Notice, Erokoro (SAN) avers before the Supreme Court:
FURTHER TAKE NOTICE that the grounds upon which this application is brought are:
(a) The judgment that gave rise to this Appeal was delivered on the 28th day of May, 2015.
(b) The Notice of Appeal against the judgment was filed on the 1st day of June 2015 and the Record of Appeal was transmitted and the Appeal entered on 17/6/2015 as SC 373/2015
(c) By the rules of this Court, the Appellants ought to have filed and served on the Respondents their written briefs within 10 (Ten) weeks after transmission of the Record of Appeal.
(d) The mandatory period of 10 (Ten) weeks allowed by the Rules of this Court for the Appellants to file their written brief has since elapsed without the Appellants filing same.
(e) In line with the provisions of Order 6 Rule 9 of the Rules of this Honourable Court, the Respondent may by an application, urge this Court to strike out this Appeal.
Order 6 Rule 9 of the Supreme Court Rules states: “If any Appellant fails to file and serve his brief within the time to file provided in Rule 5 or within extended time, respectively Respondent may apply for appeal to be struck out for want of diligent prosecution.” In the past, the Supreme Court had applied this rule to strike out appeals before it, as was the ruling of the Apex Court in Omorogbe v. Emovon (1986) 6 SC 6 and Ajayi v. Omoregbe (1993) 6Nwlr (pt301) 512
A legal practitioner in the Law firm of Paul Erokoro and Co, Mr. Okonache Ogar, deposed to an affidavit in support of Erokoro’s Motion on Notice at the Registry of the Supreme Court, Abuja on November 29, 2015.
When the appeal came up for hearing for the first time before the Supreme Court on January 25, 2016, the Apex Court adjourned the matter to May 17, 2016. As various documents pertaining to the case were presented before the panel on five Justices of the Supreme Court – Justice I. T Muhammad, JSC, Justice Mary Ukaego Peter-Odili, JSC, Justice O. Ariwoola, JSC, Justice J. I. Okoro, JSC and Justice Amiru Sanusi, Justice – at what was scheduled to be the first hearing of the matter, Justice Muhammad, JSC faulted the service document for the absent Fourth Respondent and former Minister of Transport, Alhaji Habibu Aliyu, who sold Plot No 1809, Asokoro to Mr. Ohikhuare in 2006.
In line with a recent rule of the Supreme Court, Justice Muhammad, JSC stated that there was no inked stamp on the service of notice before the panel to authenticate service on Aliyu, who was neither in court nor represented by a lawyer.
In the spirit of fair hearing and in order not to foist a fait accompli situation on Aliyu, and a possible miscarriage of justice against the Fourth Respondent to which the latter or any other litigant in the case would have no further legal platform to redress, Justice Muhammad, JSC and his Brothers-Justice ordered that Aliyu be properly served notice of the pending appeal at the Supreme Court before the next hearing date of May 17, 2016
How Appeal No SC/373/2015 Landed At Supreme Court
Appeal No SC/373/2015 is a suit The Dream Daily is has been following closely since this newspaper happened upon it as it trawled the courts for potential landmark cases it could report as an integral plank of The Dream Daily’s aim of publishing “credible news and information that other newspapers miss or ignore.”
It tells an extraordinary tale of the quest by a courageous 66-year-old Nigerian-American retiree, Mr. Ohikhuare, fighting to recover his retirement home snatched from him on the orders of a Federal Capital Territory (FCT) High Court delivered by Justice A.S. Umar, and consequent alleged “naked abuse of judicial power” by Justice A.S. Umar to favour Ambassador Malami and Sir Offor, which lawyer cum rights activist extraordinaire, Mr. Femi Falana (SAN), is challenging concurrently before the Supreme Court and the National Judicial Council (NJC), alongside eminent lawyers, to obtain justice for Mr. Ohikhuare.
This case is before the Supreme Court because Ambassador Malami and Sir Offor, a government contractor for Warri and Port Harcourt refinery turn around maintenance, and owner of African Express Bank now in receivership of the NDIC after being allegedly mismanaged to the detriment of the Nigerians who lost their deposits in the dead bank, were dissatisfied with the judgment of the Federal Court of Appeal, Abuja Headquarters delivered on May 28, 2015 in favour of Mr Ohikhuare, who was forcefully evicted from his property on September 12, 2012, according to Falana in a petition before the NJC, through an “illegal and unconstitutional take-over of the property” by Malami and Offor “with the connivance of the Hon. Justice A.S Umar of the High Court of the Federal Capital Territory, Abuja, in Suit No. FCT/HC/1056/2010.”
In a landmark judgment in Suit No CA/A/370/2012 delivered on Thursday May 28, 2015 by Justice Mohammed Mustapha, JCA and concurred to by Justices Tinuade Akomolafe-Wilson, JCA and Tani Yusuf Hassan, JCA, the Appeal Court, Abuja resolved four of the five issues for determination in that suit in favour of Mr Ohikhuare.
In 2006, Mr. Ohikhuare bought Plot No 1809, Asokoro for the sum of N50 million, perfected all instruments on it and built residential apartments valued at about N1 billion on the land. Between the time Mr. Ohikhuare bought the land, built the apartments and moved in with his family – four years – the first and fifth respondents in the appeal at the lower court – , that is Malami and Offor, their privies or agent did not lay claims to Plot 1809 Asokoro.
Mr. Ohikhuare was living with his family in the property until he was allegedly ejected with force from it, on the strength of a verdict delivered by Judge A.S. Umar.
In his amended notice of appeal at the lower court, Mr. Ohikhuare, through his Lead Counsel, Erokoro (SAN), asked the Court of Appeal to determine “whether the lower court was right in its findings that the appellant was a bona fide purchaser for value without notice; whether the plea of larches and acquiescence was not available to the appellant against the 1st respondent (Malami) having regard to the conduct of the 1st respondent and all the circumstances of this case; whether the learned trial judge’s failure to evaluate and consider key pieces of evidence favourable to the appellant did not amount to a denial of fair hearing; whether there being no proper plaintiff, the trial court had jurisdiction to determine the matter; and whether the proceedings and judgment of the court were not vitiated by fraud, the plaintiff having falsely misrepresented in his pleading and testimony that he was claiming the land for himself, when, as subsequently revealed by Exhibit IM06, IM07, IM08, IM09, IMO10 and IMO10A, he was not.”
After a thorough review of evidence before it and findings on the first issue for determination, the Appeal Court justices resolved it “in favour of the appellant and against the respondents.”
It found the trial court in error “when it held that the appellant was not a bona fide purchaser for value without notice.” Their lordships also declared that “the trial court was in error when it dismisses the defence of larches and acquiescence set up by the appellant, notwithstanding the admission of the 1st respondent in court that he saw the development going on his land and did nothing to warn the developer of his interest on the land.”
Ruling on issue two, the Court of Appeal stated: “The trial court was in error therefore, in the considered opinion of this court, in dismissing the defence of larches and acquiescence set up by the appellant at the trial; this issue is accordingly resolved in favour of the appellant and against the respondents.”
On the third issue for determination, the Appeal Court stated that it was “satisfied that the appellant’s right to fair hearing was breached by the failure of trial court to consider the evidence of the three defence witnesses, showing that there was no fence on the land in dispute” at the time the appellant bought it.
It added that “the appellant’s right to fair hearing was breached by the trial court’s failure to consider his case by neglecting uncontroverted evidence when it failed to consider evidence from three witnesses that there was no fence on the land at the time the appellant bought it.”
Resolving the fourth issue of whether there was a proper plaintiff at the lower court in favour of Mr. Ohikhuare, the Appeal Court ruled that Malami “no longer had the power to initiate the proceedings at the lower court for himself; because it is settled that an Irrevocable Power of Attorney given for valuable consideration robs the donor of power to exercise any of the powers conferred on the donee.”
The justices of the Appeal Court “submitted for the appellant that one of the legal consequences of Exhibit IMO6 and IMO10A is that there was no plaintiff in the suit at the lower court, because the plaintiff on record, i.e. the 1st respondent (Malami) had sold the land in dispute to a third party, before the commencement of the suit as per Exhibit IMO6, the letter by the plaintiff stating that he was not the real plaintiff in the suit, the actual plaintiff being Sir Emeka Offor.”
On the fifth and last issue for determination, however, the Appeal Court observed that “while there may have been misrepresentation” on the part of Malami in trying to assist Offor to “perfect his title and register his interest” on Plot 1809, “there is no evidence of fraud proved to the satisfaction of this court”. It therefore resolved the fifth issue “in favour of the respondent.”
Thereafter, the Appeal Court, on the eve of President Muhammadu Buhari’s inauguration, declared that Mr. Ohikhuare’s “appeal therefore succeeds, perforce, and is allowed; judgment of the trial High Court of the Federal Capital Territory, Abuja in Suit No: FCT/HC/CV/105/2010, and delivered by Honourable Justice A.S. Umar on the 17th day of May 2012 is hereby set aside, with N30,000 for the appellant, against the 1st to 5th respondent.”
Malami claimed at the Appeal Court that he sold the land in question and gave an irrevocable power of attorney to Offor in 2005 before he (Malami) instituted and started a case at the High Court as Plaintiff, a claim the Court of Appeal found spurious and untenable, hence entered judgment against the elder statesman and Offor.
Interestingly, in appealing the Court of Appeal verdict at the Supreme Court, Malami and Offor, who are still in possession of the two-wing duplexes built by Mr. Ohikhuare on Plot No 1809, Asokoro, are essentially asking the apex court to do the extraordinary, that is, for the Supreme Court to revert itself on a precedent unanimous ruling by five justices lead by Justice Walter Samuel Nkanu Onnoghen, JSC of February 11, 2014, in the case of Mrs. Mojisola Edebiri vs. Prince Omotayo Daniel & Anor. (SC./440/2012) in which their Lordships stated that “applicant haven sold or divested himself of any interest in the property subject matter of the appeal, has no further interest to be protected.”
Plot No 1809, Asokoro: Falana Drags Hon. Justice A.S. Umar Before NJC
In response to the “illegal” manner in which the Abuja High Court judgment delivered by Hon. Justice A.S. Umar was executed and alleged complicity of Hon. Justice A.S. Umar in the execution of the now upturned verdict, rights activist and legal luminary, Mr. Femi Falana (SAN), who also represented Mr. Ohikhuare at the Court of Appeal and still does before the Supreme Court alongside Mr. A. S. Ameh (SAN) and Erokoro (SAN), sent a petition to the NJC, the body statutorily charged with sanctioning erring judges in Nigeria.
In that petition, dated February 20, 2013 and filed during the tenure of former Chief Justice of Nigeria and Chairman, National Judicial Council (NJC), Hon. Justice Aloma Mariam Mukthar, GCON, Falana laid grave allegations of misconduct against Hon. Justice A.S. Umar, which stakeholders in the justice system said ought to have moved the NJC under Hon. Justice Aloma Mariam Mukthar, GCON to summon Hon. Justice A.S. Umar for a hearing in order to preserve the integrity of the Judiciary.
However, three years on, the NJC has not responded to Falana’s petition against Hon. Justice A.S. Umar pertaining to his lordship “patent act of misconduct” in Suit No FCT/HC/CV/1056/10 and his lordship’s alleged “illegal” roles in ejecting Mr. Ohikhuare from Plot No 1809, Asokoro and turning over the property to Ambassador Malami and Sir Offor.
Nevertheless, The Dream Daily learnt that in the interest of justice and the integrity of the Nigerian Justice System, Mr. Falana is determined to pursue that petition against Hon. Justice A.S. Umar before the NJC to a logical conclusion under the current climate of “Change” espoused by President Muhammadu Buhari and the Crusader-Reformer and current Chief Justice of Nigeria (CJN) and Chairman, NJC, Hon. Justice Mahmud Mohammed, GCON.
In that petition, Falana is insisting that it would “amount to double standards and connivance at an act of corruption on the Bench, should the NJC shy away from swiftly applying… sanction against Honourable Justice A.S Umar, when… the Judge did not only issue a warrant of possession before the time allowed by law, but he also deliberately issued a warrant of possession when none ought to have been issued at all” to snatch Plot No 1809, Asokoro from Mr. Ohikhuare and hand over the property to Malami and Offor.
Narrating how Mr. Ohikhuare found himself caught in a net of “naked abuse of judicial power” allegedly spurn by the trio of Justice A.S. Umar, Alhaji Malami and Sir Offor, Falana, in the petition before the NJC, stated that “in April 2006 , while resident in the United States of America,” Mr. Ohikhuare bought a plot of land (Plot No 1809 (formerly Plot 865 ) in Asokoro, Abuja, from Aliyu at the cost of N50 Million “after duly conducting a legal search at the Federal Capital Development Authority – Abuja Geographic Information Service (AGIS)-, which clearly established that the Certificate of Occupancy and allied documents issued in respect of the said plot of land were in favour of” Aliyu, and “that the plot of land was validly held by Aliyu” and “was free of all encumbrances.”
According to Falana, “the said legal search did not reveal any previously granted but revoked right of occupancy, cancelled certificate of occupancy, or any previously granted and still subsisting right of occupancy and/or certificate of occupancy over the said plot of land.”
Subsequently, in the same year 2006, Mr. Ohikhuare “obtained the consent of the Honourable Minister of the Federal Capital Territory for the assignment, to him, of the said plot of land and the Certificate of Occupancy covering same, thereby perfecting his title documents in respect of the land.”
“In pursuit of his objective to develop the plot of land into a befitting building, Mr. Ohikhuare in the same year 2006 obtained development and building approvals from the Federal Capital Development Authority, upon paying all requisite government fees and charges.
“In that same year 2006, Mr. Ohikhuare “commenced the construction of two (2) identical unit (wing) building on the plot of land, and completed same in 2009, after a three (3) year period, at a cost of over N900 Million!
“Very instructively, during these three (3) years of the said construction of the building, no adverse claimant or trespasser ( person or organization) disturbed him (Mr. Ohikhuare ) on the land or contested his title thereto, by a way of litigation, written or oral notice, publication, or physical intrusion or disturbance of any kind.
“Upon completion of the construction of his two (2) identical unit (wing) building in late 2009, he moved into one unit (wing) and rented out the other unit (wing) to the daughter of the late Nigerian leader, President Alhaji Umar Musa Yar Adua, who was introduced to the property and subsequently rented same after His Excellency, Architect Namadi Sambo, GCON, (then) Vice President of the Federal Republic of Nigeria personally visited the property for inspection in October 2010.
“Very shockingly, in late 2010, some court processes pertaining to Suit No. FCT/HC/CV/1056/2010 – AMBASSADOR ALHAJI SHEHU OTHMAN MALAMI OFR V. THE HON. MINISTER FEDERAL CAPITAL TERRITORY, FEDERAL CAPITAL DEVELOPMENT AUTHORITY & MOHAMMED HABIB ALIYU were served, by posting same on the outer perimeter block fence of his (Mr. Ohikhuare’s) said building, purportedly on the 3rd Defendant in the Suit ( Mohammed Habib Aliyu) , from whom he (Mr. Ohikhuare ) derived title to the plot of land ( Plot No 1809, where his two unit (wing) building is situate), by virtue of the said assignment of Mohammed Habib Aliyu’s legal right and interest therein to him.
Mr. Ohikhuare “applied and was joined as the 4th Defendant to the said Suit, being a necessary party, not only to vigorously defend his title to the bare plot of land which he purchased from Mohammed Habib Aliyu by Assignment, with the Consent of the Minister of the Federal Capital Territory, but also to defend his ownership of his newly built building now situate thereon.”
Falana goes on in the petition: “The claim of the Plaintiff, Ambassador Alhaji Shehu Othman Malami , OFR in the said Suit was that he was originally the person allocated the said parcel of land in 1984 and thereby granted a statutory right of occupancy, and a Certificate of Occupancy No. FCT/ABU/SO.201, dated 15th December, 1984 in respect thereof; but that the said right was unlawfully revoked, without issuance of due statutory notice, on 5th October, 2005, and that thereafter a fresh grant was illegally made by the Hon. Minister of the Federal Capital Territory, Mallam Nasir El Rufai in favour of Mohammed Habib Aliyu, a fellow Minister, who, in turn, assigned his grant and certificate of occupancy to Mr. Imonkhuede Ohikhuare , the 4th Defendant; and further, that having applied for recertification of his revoked or cancelled certificate of occupancy, he (Ambassador Alhaji Shehu Othman Malami , OFR ) was entitled to an order of court directing or mandating the Hon. Minister of the Federal Capital Territory to issue him a new or recertified Certificate of Occupancy.
“Specifically, the reliefs sought by the Plaintiff in the Amended Writ of Summons and Statement of Claim filed on the 13th of July, 2010 were as follows:
(i) A declaration that the Notice of Revocation of Undeveloped Plots within Federal Capital Territory City, dated 5th day of October, 2005, and signed by Oni, O.A for the Minister (FCT) in respect of Plot No. 865 (now Plot No. 1809 ) within Cadastral Zone AO4, Asokoro, Abuja, FCT is null
(ii) A Declaration that the Plaintiff is entitled to a new/ recertified Certificate of Occupancy in respect of Plot No 865 (now Plot No 1809) within Cadastral Zone AO4, Asokoro, Abuja,FCT.
(iii) An Order of Court setting aside the Notice of Revocation of Undeveloped Plots within Federal Capital City dated the 5th day of October, 2005 and signed by Oni, O.A for the Minister (FCT) in respect of Plot No. 1809 within Cadastral Zone AO4, Asokoro, Abuja,FCT.
(iv) An Order of Court mandating the 1st Defendant to issue to the Plaintiff a new/recertified Certificate of Occupancy in respect of Plot No. 865( now Plot No. 1809) within Cadastral Zone AO4, Asokoro, Abuja,FCT;
(v) An Order of Court setting aside any allocation to the 3rd Defendant by the 1st Defendant of Plot No 865 ( now Plot No. 1809) within Cadastral Zone AO4, Asokoro, Abuja,FCT.
(vi) An Order of Court setting aside the purported sale of Plot N0 865( now Plot No. 1809) within Cadastral Zone AO4, Asokoro, Abuja,FCT, by the 3rd Defendant to the 4th Defendant, for being null ab initio.
(vii) An Order of perpetual injunction restraining the Defendants by themselves, their agents or privies from inhibiting or disturbing Plaintiff’s possession and equanimity over Plot No.865 ( now Plot No. 1809) within Cadastral Zone AO4, Asokoro, Abuja,FCT; and
(viii) The sum of N 20,000,000.00 ( Twenty Million Naira) only against the Defendants jointly and severally for their wrongful conduct against the Plaintiff in respect of Plot Plot No.865 ( now Plot No. 1809) within Cadastral Zone AO4, Asokoro, Abuja,FCT
According to Falana, “the defence of the Hon Minister of the Federal Capital Territory and the Federal Capital Development Authority to the Plaintiff’s claim was that the terms of the original allocation of the said plot of land and the grant of a right of occupancy to the Plaintiff in 1984 included a condition that he shall develop the plot within two (2) years of grant, meaning that by 1986, at the latest, he ought to have completed the development of same; that for failing to do so for a period of twenty-one (21) years, the said allocation and grant were duly revoked, after a requisite Notice of Revocation was served personally on 19th April, 2006 on one Kabiru Ladan, the Plaintiff’s agent, who, when he was physically served the said Notice was in the FCDA office to pursue the recertification of the cancelled Certificate of Occupancy on behalf of the Plaintiff; and that after initially filing a suit on 21st November, 2007 to challenge the said revocation, the Plaintiff withdrew same and filed, on the 9th of March, 2010, the Suit leading to the instant petition; meaning that the Plaintiff’s action was filed four (4) years after the said revocation, and five (5) months after the first suit was withdrawn and struck out on 17th September, 2009, both suits being filed in violation of the provision of Section 2(a) of the Public Officer Protection Act, which mandates that such actions be filed within three months of the occurrence of the act of the public officer (office) being complained against.
“The said first suit, No FCT/HC/CV/31/07, filed by the Plaintiff, Ambassador Alhaji Shehu Othman Malami , OFR was instituted on the 17th of November, 2007 against the Hon. Minister of the Federal Capital Territory and Federal Capital Development Authority, and was struck out by Hon Justice U.A Inyang on the 17th day of September, 2009, following the filing and moving of a Motion for withdrawal of the Suit by the Plaintiff. The Writ of Summons, Statement of Claim and Enrolment of Court Proceedings recoding the striking out of the Suit are hereto attached as ANNEXURE 2
“Very instructively, although the Plaintiff, Ambassador Alhaji Shehu Othman Malami , OFR was fully aware of his (our client’s) interest in the plot of land, as the Assignment made in his favour by Mohammed Habib Aliyu was duly registered in 2006, with the FCDA, the Plaintiff, deliberately chose not to sue him (our client) as the necessary party in the said first Suit, No FCT/HC/CV/31/07, which he filed on the 17th of November, 2007 against the Hon. Minister of the Federal Capital Territory and Federal Capital Development Authority, and the second Suit FCT/HC/CV/1056/2010 which the Plaintiff filed in 2010.
“All through the three (3) years it took him ( our client, Mr. Imonkhuede Ohikhuare ) to develop the plot and complete his said building, at a cost of over Nine Hundred Million Naira ( =N=900,000,000.00), the plaintiff, Ambassador Alhaji Shehu Othman Malami , OFR, never alerted him ( our client), of his ( Plaintiff’s) alleged interest in the land, even though, by the Plaintiff’s admission, in court, he knew that his (our client’s) building was being put up on the said plot of land.
“Also very significantly, the Plaintiff, Ambassador Alhaji Shehu Othman Malami , OFR, either in his said first Suit or in the second Suit, did not apply to court for an order of interlocutory injunction, restraining him ( our client), from commencing, continuing with or completing his said building, before and during the construction of same for a period of three (3) years.
“After the trial of the Suit, which he (our client) voluntarily joined, the Court delivered his judgment on Thursday, the 17th of May, 2012, granting Reliefs i, ii, iii, iv, v, vi, and vii sought by the Plaintiff in his claim. The Judgment of the Court is hereto attached as ANNEXURE 3.
“So eager, it seems, was the Judge to give judgment to the Plaintiff that the Judge prepared his judgment in a most inelegant and incongruous manner: the reliefs listed or reproduced at the first page of the judgment as those sought in the suit were five ( Reliefs i-v), while at the last page of the judgment, the Judge granted, in sum, Reliefs i, ii, iii, iv, v, vi, and vii, and refused Relief viii, the last three reliefs (vi, vii and viii) not being listed or reproduced in any portion of the judgment at all. In his Judgment, His Lordship listed or reproduced, as the reliefs claimed in the Suit, the reliefs that were sought in the original Writ of Summons and Statement of Claim, instead of reflecting those sought as per the Amended Statement of Claim that was filed on the 13th of July, 2010; His Lordship, however, granted reliefs contained in the Amended Statement of Claim, which he never reproduced or reflected in his Judgment as the reliefs sought in the action.
“Instructively, the Plaintiff did not seek in his claim, as per the Amended Statement of Claim, and the Court did not grant an order for possession, which, procedurally could have ripen to the issuance of a writ for possession being issued by the Judge.”
Falana added: “Following the delivery of the court judgment by Hon. Justice A.S Umar, on Thursday, the 17th of May, 2012, his (our client’s) counsel filed a Notice of Appeal against the Judgment ( which is now APPEAL NO. CA/A/370/2012 [IMONKHUEDE OHIKHUARE Vs. AMB ALHAJI SHEHU OTHMAN MALAMI & 3 OTHERS) (now decided by the Court of Appeal, Abuja Headquarters on May 28, 2015 in favour of Mr. Ohikhuare. See above) and an application for a stay of the execution of the said judgment on Wednesday, the 23rd of May, 2012, an application which was later substituted with another application for stay of execution dated Monday, the 28th of May, 2012, and heard on the 14th of July, 2012. The Notice of Appeal and the two applications for stay of execution are hereto attached as ANNEXURE 4(a, b & c)
“The Judge delivered his Ruling on the said application for a stay of the execution of the said judgment, on the 17th of July, 2012, refusing same, a ruling which was immediately followed by another application for stay of execution of the judgment, filed in the Court of Appeal, which was not only served on counsel to the parties to the Suit but also served on the Sheriff and Bailiff Section of the High Court of the Federal Capital Territory. The Ruling of the Court refusing to grant an order of stay of execution is hereto attached as ANNEXURE 5 , and a copy of the Application for Stay of Execution of the Judgment, filed before the Court of Appeal with proofs of service are hereto attached as ANNEXURE 6
“In a surprising development, on the 12th of September, 2012, Jeph C. Njikonye, Esq, the Plaintiff’s lawyer, officers of the Sheriff Section of the High Court of the Federal Capital Territory, a multitude of thugs, a heavy duty crane and a horde of policemen, stormed his (Mr. Ohikhuare‘s) said building to levy execution of the judgment on him; and upon their arrival, they started evicting him forcibly from the building by removing his household belongings, including furniture therefrom.
“He immediately called his lawyers, Paul Erekoro, SAN & Co, who rushed up to his building (home) and showed the said officers of the Sheriff Section of the High Court of the Federal Capital Territory a copy of the pending Motion for Stay of Execution, filed in respect of the judgment in the Court of Appeal in APPEAL NO. CA/A/370/2012 [IMONKHUEDE OHIKHUARE Vs. AMB ALHAJI SHEHU OTHMAN MALAMI & 3 OTHERS].
“Strangely, the said officers of the Sheriff Section of the High Court of the Federal Capital Territory feigned or claimed ignorance of the pending Motion for Stay of Execution.
“When the lawyers, however, got the Bailiff of the Court of Appeal, Abuja Division to, again, serve the application (Motion for Stay of Execution) along with the Hearing Notice thereof on the Chief Registrar of the FCT High Court, and produced the proof of service of these court processes to the said officers of the Sheriff Section of the High Court of the Federal Capital Territory, the said court officers stopped the execution and left his (our client’s) building (home).
“Following that invasion of his building in the pretext of executing the said court judgment, his lawyers Paul Erekoro, SAN & Co wrote to the Chief Judge and Chief Registrar of the High Court of the Federal Capital Territory, intimating them of the action of the said court officers of that day. Attached hereto and marked ANNEXURE 7 are copies of the said letters to the Chief Judge and Chief Registrar of the High Court of the FCT.
“Unbelievably, the following day, that is on the 13th of September 2012, the same set of court officials in the company of armed policemen and thugs, again, invaded his building (home), this time more determined and vicious, threw him and his family out of the building, as well as all his belongings, locked up the building, and put SIR EMEKA C. OFFOR in possession in his stead. Attached hereto and marked ANNEXURE 8 are copies of the photographs of the building before and during the purported execution of judgment.
“Instructively, however, Jeph C. Njikonye, Esq; the Plaintiff’s lawyer, the said officers of the Sheriff Section of the High Court of the Federal Capital Territory, the armed policemen and thugs who came to his building for the judgment execution and eviction operation, as if acting a well scripted tragic play, spared the second unit or wing of his building, wherein his tenant, the said daughter of the Late Nigerian leader, President Alhaji Umar Musa Yar Adua, resided and still resides; meaning that whereas judgment was obtained against his plot of land and his entire two wing (unit) building situate thereon, this Court backed appropriators only moved against him and the unit of the building where he lived with his family, leaving alone his said tenant, for reasons which will be given, infra.
“While the said execution and eviction was still in progress, a counsel in the law firm of his lawyers, Paul Erekoro, SAN & Co rushed to the court of Hon. Justice A.S Umar to inform him of the situation, but the lawyer was reportedly told by the Judge that the Court was on vacation and that moreover he had become functus officio, having signed the warrant for possession by which the execution was being carried out, on Wednesday, the 23rd of May, 2012, before the Court vacation started, and six(6) days after the delivery of the said judgment on 17th of July, 2012. Attached hereto and marked ANNEXURE 9 is a copy of the Warrant for Possession, signed and issued by His Lordship.
“Perplexed by the patent act of misconduct of the Judge and the court officials, he was compelled to personally write a petition, dated 24th September, 2012 to the National Judicial Council complaining about the actions of Hon. Justice A.S Umar of the High Court of the Federal Capital Territory in Suit No CV/1056/2010: Ambassador Alhaji Shehu Othman Malami v. Hon Minister of Federal Capital Territory & 3 Ors, which made the said execution and eviction possible. Attached hereto and marked ANNEXURE 10 is a copy of the said personal petition.
“In a rather dismissive manner, after acknowledging the petition by a correspondence dated the 28th of September, 2012,the NJC replied the said personal petition vide a letter dated 27th November, 2012, Ref N0 NJC/F.4/HC.12/1/72, addressed to him (our client), entitled “ PETITION AGAINST THE CONDUCT OF HON. JUSTICE A.S UMAR OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN SUIT NO CV/1056/2010: AMBASSADOR ALHAJI SHEHU OTHMAN MALAMI V. HON MINISTER OF FEDERAL CAPITAL TERRITORY 3 ORS”, and signed by Danladi Halilu, Esq, OON, Secretary, for Chief Justice of Nigeria and Chairman of National Judicial Council; a reply letter the terse body of which reads thus:
“Reference your petition dated 24th September, 2012 to the Honourable the Chief Justice of Nigeria and Chairman of the National Judicial Council, Hon. Justice Aloma Mariam Mukhtar, GCON, on the above subject matter. I have been directed to inform you that the explanation given by Hon. Justice A.S Umar was considered by His Lordship as satisfactory, as he has exonerated himself from the allegations contained in your petition, please.
“Attached hereto and marked ANNEXURE 11 and 12 is a copy of the NJC’s acknowledgment and the Reply to the petition.
“He had reasons to believe that his petition was never investigated by the NJC, but that the said purported reply to the petition was procured by his traducers to frustrate his quest for administrative justice.
“In a new twist to this matter , SIR EMEKA C. OFFOR, as an Interested Party/Appellant/ Applicant, by a Motion filed on the 10th of January, 2013, and a second Motion filed on the 31st of January, 2013, is seeking to join APPEAL NO CA/A/370/2012 IMONKHUEDE OHIKHUARE Vs. AMB ALHAJI SHEHU OTHMAN MALAMI & 3 OTHERS (now decided by the Court of Appeal, Abuja Headquarters on May 28, 2015 in favour of Mr. Ohikhuare. See above)
“The grounds upon which the said SIR EMEKA C. OFFOR is seeking to join the said Appeal are that prior to the institution of Suit No CV/1056/2010: Ambassador Alhaji Shehu Othman Malami v. Hon Minister of Federal Capital Territory & 3 Ors in the High Court of the Federal Capital Territory, Abuja, by Ambassador Alhaji Shehu Othman Malami, OFR, he had donated a Power of Attorney to him ( SIR EMEKA C. OFFOR ) over Plot 1809, and same had been purportedly registered, duly, at the Land Registry of the Federal Capital Development Authority, Lands Registry Office, Abuja, on 22nd of May, 2005 as NO: FC121 at Page 121 in Vol 47 P/A; and also, that the said Plot 1809 had been sold to him (SIR EMEKA C. OFFOR ) , vide a Sale Agreement, by Ambassador Alhaji Shehu Othman Malami, OFR. The alleged Power of Attorney of SIR EMEKA C. OFFOR, as gathered from his Interested Party/Appellant/ Applicant application, now pending before the Court of Appeal, is hereto attached and marked ANNEXURE 13.
“On the grounds above, SIR EMEKA C OFFOR is not only claiming to be the owner of Plot 1809 , but also the absolute owner of his (our client’s) over One Billion Naira building situate thereon.
“In support of SIR EMEKA C. OFFOR’s claim, Ambassador Alhaji Shehu Othman Malami, OFR,CON , Sarkin Sudan of Wuno has written a very contemptuous letter dated 11th of January 2013, to the Court of Appeal, Abuja Division, directly to the Presiding Justice of the Court of Appeal demanding, that his name be removed from Appeal.
“The Letter , on the Letter Head of AMB ALHAJI SHEHU MALAMI, OFR,CON , Sarkin Sudan of Wuno, dated 11th of January 2013, and addressed to the “Presiding Judge Court of Appeal Abuja Division” states as follows
My Lord Sir,
RE APPEAL NO CA/A/370/2012 IMONKHUEDE OHIKHUARE Vs. AMB ALHAJI SHEHU OTHMAN MALAMI & 3 OTHERS
Permit me to join others in wishing you Allah’s blessing throughout the New Year and beyond
I write to put on record my position in the above suit which is pending before your Lordships Some years ago I sold the property in dispute to Sir Emeka Offor and gave him the power of attorney to enable him take over ownership of the property.
In 2010, I consented to the action at the High Court being instituted in my name because I did not know that Sir Emeka Offor had registered the power of attorney I gave him. I believe that the registered power of attorney entitles Sir Emeka Offor to pursue his claim to the property in his own name.
I also receive information from my lawyer, Sylvester Imhanobe & Co that at the last sitting of the Court, Sir Emeka Offor’s lawyer, Prince Adetokunbo Kayode SAN, applied to join Sir Emeka Offor in the appeal but that the application was withdrawn.
In the circumstances, I humbly request your kind approval that Sir Emeka Offor is allowed to join and my name removed as a party in this action. The reason for my humble request is to protect my integrity particularly that the property in dispute belongs absolutely to Sir Emeka Offor, I no longer have any interest in the property and I cannot take any decision on it.
Yours sincerely.
Attached hereto and marked ANNEXURE 14 is a copy of the said letter
“As if to demonstrate that he (our client), is a victim of a well-coordinated conspiracy, the Directorate of Lands, Abuja Geographic Information Service (AGIS) purported to have, lately, revoked his right of occupancy in respect of the said Plot 1809, and re-granted same to Alhaji Shehu Malami, who claimed to have assigned his interest in the said Plot 1809, covered by the said right of occupancy to Sir Emeka C. Offor, even when his (our client’s) said Appeal of the lower court’s judgment, to which both the Hon. Minister to the Federal Capital Territory, and the FCDA are parties (as Respondents on Appeal) is yet to be determined. This action prompted his counsel, Paul Erekoro, SAN to formally intimate the AGIS of the pendency of APPEAL NO CA/A/370/2012 IMONKHUEDE OHIKHUARE Vs. AMB ALHAJI SHEHU OTHMAN MALAMI & 3 OTHERS in respect of the said Plot 1809 , and to request that a CAVEAT EMPTOR be placed in respect of the said Plot 1809, pending the determination of all legal disputes relating thereto. A copy of the letter is hereto attached as ANNEXURE 15.
“My Lord, the Chief Justice of Nigeria and Chairman of the National Judicial Council, the above narrative is the incredible treatment meted to our Client, Mr. Imonkhuede Ohikhuare, by Honourable Justice A.S Umar and the officials of the High Court of the Federal Capital Territory, Abuja.
“Our contention is that the deeds (or do we say misdeeds) of Honourable Justice A..S Umar in facilitating the execution of his judgment (wherein no executory order of possession was given) and the illegal and unconstitutional extra-judicial take-over of our client’s property by SIR EMEKA C. OFFOR, constitute a breach of the oath of judicial office of Honourable Justice A.S Umar, and amount to a gross act of judicial misconduct.
“While our client is exercising his constitutional right of appeal to upturn the Judgment of Honourable Justice A..S Umar (now decided by the Court of Appeal, Abuja Headquarters on May 28, 2015 in favour of Mr. Ohikhuare. (See above), our client is of the strong view that his Lordship’s role in the Suit, before the Judgment and after the judgment, leading to the take-over of his building, ought to be investigated with a view to imposing an appropriate disciplinary sanction on him, in the overall interest of administration of justice.
“The grounds of our assertion that Honourable Justice A.S. Umar is guilty of violation of his oath of judicial office and guilty of a gross act of judicial misconduct are as follows:
1. The Judgment of the Court was enforced based on a “Warrant for Possession” issued and signed by Honourable Justice A.S Umar. The said Warrant for Possession was issued as per “Judicial Form M (FCT), Recovery of Premises Law, Cap.115, Warrant for Possession of Premises”. This is a blatant illegality, for the Judgment sought to be enforced by the “warrant of possession” was not a judgment obtained against a tenant by his landlord. The action of the Plaintiff was not for recovery of possession of premises, pursuant to Recovery of Premises Law. It is a land dispute matter. And the Judgment the Plaintiff was given against the Defendants was not for delivery up of possession of premises which belonged to the Plaintiff, a landlord, but held over by a recalcitrant tenant. Assuming, without accepting, that the judgment contained an order for possession, along with the declaratory, mandatory and injunctive reliefs granted by the Judge, that order for possession can only be enforced pursuant to the Sheriff and Civil Process Act, and the Judgment Enforcement Rules, made thereunder, with requisite Forms being used in the circumstances.
2. Assuming, without conceding that the warrant for possession issued and signed by the Judge could be taken to be a writ of possession, the Writ of Possession ( Warrant for Possession) issued by the Judge on the 23rd of May, 2012, only six (6) days (including Saturday and Sunday) after delivery of his said judgment did not arise or derive from his judgment in the court, as the Plaintiff never sought a relief or order for possession either in his original writ of summons and statement of claim or in his amended writ of summons and statement of claim, nor did the Judge grant any such order or relief. The Judge did not only act illegally, he also acted capriciously to aid the usurpers of our client’s property to quickly take over his property.
3. Assuming, without conceding, that the Judgment is one wherein a writ of possession could even be issued, still, the Judge acted illegally, in violation of the provision of the Judgment (Enforcement) Rules, by signing and issuing the writ of possession on the 23rd of May, 2012, only six (6) days ( including Saturday and Sunday) after delivery of his said judgment, without giving a notice of the judgment to our client, Mr. Imonkhuede Ohikhuare, and before the expiration of the mandatory fourteen days (14) days, after delivery of judgment, as provided by law. It was the issuance of that writ of possession which led to the kangaroo levy of execution of the Judgment on the landed property of our client, Mr. Imonkhuede Ohikhuare.
4. The writ of possession was issued by the judge after our client’s application for stay of execution had been filed in his court, meaning that the Judge had taken a premeditated decision to go ahead with the execution of the judgment before hearing the application for stay of execution. The subsequent hearing and dismissal of the said application for stay of execution was, therefore, an unconscionable mockery of the judicial process, a blatant abuse of the rule of law, a breach of our client’s constitutional right to fair hearing, and a very callous sham.
5. And finally, by the Records, the writ of possession, based on the Court’s Registry endorsement was applied for by 10.am on the 23rd of May, 2012, whereas our client’s application for stay of execution of judgment was filed at 8.30 am on the same date, 23rd of May, 2012. Since it is customary for the court to sit at 9 o’ clock before noon and attend to administrative matters at the end of the day’s sitting, Honourable Justice A.S. Umar must have signed the writ of possession in the full knowledge of the existence of an application for stay of execution of his judgment.
“My Lord, some years back when a high ranking judge in the Lagos State Judiciary ( then the No 1 most senior judge after the Chief Judge and the next in line to be appointed the Chief Judge by order of seniority) issued a writ of possession in a land matter few days after the delivery of his perverse judgment, without waiting for the expiration of the fourteen (14) days statutory period, the NJC, upon a complaint being received regarding his action, carried out a swift investigation and did not hesitate to recommend his dismissal from the Judiciary, to the Lagos State Government. That Judge was accordingly removed from the Bench.
For the avoidance of any doubt, Order IV, Rule 1(1&2) of the Judgments (Enforcement) Rules, made under Section 94 of the Sheriffs and Civil Process Act, Vol. 14, Cap S6, LFN. 2004, provides thus:-
1. Period to elapse after judgment
(1) No writ of possession shall be issued until after the expiration of the day on which the defendant is ordered to give possession of the land, or, if no day has been fixed by the court for giving possession, until after the expiration of fourteen days from the day on which judgment is given.
(2) No other process shall, except by express leave of the court, be issued until after the expiration of three days on which judgment is given.
It will, therefore, amount to double standards and connivance at an act of corruption on the Bench, should the NJC shy away from swiftly applying the same sanction against Honourable Justice A.S. Umar, when, as demonstrated above, the Judge did not only issue a warrant of possession before the time allowed by law, but he also deliberately issued a warrant of possession when none ought to have been issued at all. This is nothing but a naked abuse of judicial power.
The NJC has a duty to halt any further dent to the image of the Judiciary in these troubling times, when the impartiality and relevance of the Judiciary is, daily, being called into question.
“While waiting on the NJC to do justice in this matter, kindly accept the assurances of our highest regards,” Falana (SAN) signed off.
As it is, Nigerians are waiting for action on this petition against Justice A.S Umar similar to the sanctioning in 2014 of Justice Inyang of the Federal High Court, Abuja who the NJC found culpable of signing “recklessly a writ of execution, a day after delivering his judgment of 20th December, 2011, the same day a Notice of Appeal and Motion on Notice for Stay of Execution were filed.”
The country, today, hopes that the NJC will walk its recent talk – expressed through its Chairman and Chief Justice of Nigeria, Hon. Justice Mahmud Mohammed, GCON – promising Nigerians that it would use the big stick against erring judicial officers, and that it would no longer be business as usual in the Judiciary, especially for corrupt judges no matter the seniority or personality involved.
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