• Petitions NJC, FCT High Court CJ
Rights activist Femi Falana (SAN) has urged the National Judicial Council (NJC) to take a second look at the circumstances surrounding the ejection of a businessman, Imoukhuede Ohikhuare, from his multi-million naira property on Plot 1809 (formerly 865) Cadastral Zone AO4, Asokoro, Abuja.
Ohikhuare was reportedly ejected from the building on September 13, last year by some officials of the Sherriff Section of the High Court of the Federal Capital Territory, Abuja, who claimed to be executing a judgment by Justice A. S. Umar of the court.
Falana expressed discomfort over the motive behind judgment’s execution; the reason behind the judge’s issuance of a warrant of possession, six days after the judgment was given on May 17, last year and the haste with which the judgment was executed by court’s officials, despite the pendency, at the Court of Appeal, Abuja, of a notice of appeal and an application for stay of execution.
The activist’s position is contained in two petitions to NJC’s Chairman, Justice Aloma Mukhtar and the Chief Judge of the Federal High Court, Justice Lawal Gummi. The NJC had considered an earlier petition by Ohikhuare and held in the judge’s favour.
Ohikhuare said he bought the plot of land from former Minister of State, Federal Capital Territory (FCT), Mohammed Habibu Aliyu at N50 million in 2006 after conducting the required legal search at the Federal Capital Development Authority (FCDA)
He said the search established that “the Certificate of Occupancy (C of O) and allied documents issued in respect of the said plot of land were in favour of Mohammed Habibu Aliyu and was free of all encumbrances.
“The legal search did not reveal that any previously granted, but revoked right of occupancy, cancelled certificate of occupancy, or any previously granted and still subsisting right of occupancy/or certificate of occupancy over the said plot of land.”
Ohikhuare said he proceeded to apply for and obtained the consent of the FCT Minister for the assignment to him, of the plot of land and the C of O covering the land, thereby perfecting his title documents in respect of the land.
He added that he also obtained, in 2006, development and building approvals from the FCDA, upon paying all the requisite fees and charges.
Ohikhuare said he proceeded to commit funds to the construction of the house – a two-wing structure – that cost him about N900 million to complete in three years. He said by 2009, he had moved into a wing and let the other out to a daughter of one of the country’s presidents.
He said he was shocked when, in 2010 some court papers in respect of suit FCT/HC/CV/1056/2010 were pasted on his building’s outer fence. Ohikhuare, who said he never had anyone disturbed him or claimed ownership of the land all through the time it took him to erect the structure, said he was taken aback by the development.
The suit was instituted by a former Nigerian ambassador – Shehu Othman Malami – who claimed to have been allocated the plot, on which the house now stands, sometime in 1984. The suit had Malami and plantiff, with the FCT Minister, FCDA, Aliyu as defendants. Ohikhuare was later joined as the fourth defendant.
Malami earlier sued the FCT Minister and FCDA in 2007, but withdrew the suit marked FCT/HC/CV/31/07, consequent upon which Justice U. A. Inyang struck it out in a ruling delivered on September 17, 2009.
In his judgment on May 17 judgment on the latter suit, Justice Umar held in the plaintiff’s favour and voided the allocation of the land to Aliyu, holding among others, that the revocation on October 15, 2005 of Malami’s earlier allocation was wrongly effected by then FCT Minister, Mallam Nasir El-Rufai.
Dissatisfied, Ohikhuare filed a notice of appeal and application for stay of execution of the judgment on May 23, but later substituted the application for stay with another one dated May 28.
Justice Umar, in a ruling on July 14, refused to stay execution of the judgment, prompting Ohikhuare to file a similar application before the Court of Appeal, Abuja.
Ohikhuare stated that he was taken aback when on September 12, some court oficaisl stormed his house, seeking to forcefully eject on the strength of the judgment. He said his lawyer raced to court only to be told that Justice Umar had become functus officio (could no longer act on the case) having signed a warrant for possession on May 23.
Falana, who queried the propriety of the warrant of possession granted by Justice Umar, noted that “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 of possession being issued by the judge.”
He faulted the execution of the judgment and argued the judge issued the warrant of possession before time and also when none ought to have been issued.
Citing Order IV, Rule 1 (1 and 2) of the Judgments (Enforcement) Rules, made under Section 94 of the Sheriffs and Civil Process Act 2004, Falana contended that 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.”
He added that it was illegal for the judge to have issued a writ of possession by Justice Usman “only six days (including Saturday and Sunday)”, instead of 14 days after delivery of judgment, as stipulated by law.
Falana further contended that writ or warrant of possession could only be issued on judgments obtained by landlord against a tenant or for the recovery of possession of premises.
He noted that in this instance, which is a dispute over a parcel of land, the judgment the plaintiff got against the defendants was not for the recovery of possession of premises pursuant to Recovery of Premises Law.
“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.
“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,” Falana said. He urged Justice Gummi to sanction all those involved in the judgment’s execution.
“We want your Lordship to cause an investigation into this petition, sanction those involved from the office of the Sheriff and Bailiffs, in the sordid execution and grant our client an administrative redress by restoring him by to his property pending the outcome of the said appeal.”
Meanwhile, a twist has been added to the appeal as a businessman, Emeka Offor, claiming to have purchased the land from Malami has applied to be made a party. Malami has written to the appeallate court to strike out his name and replace it with that of Offor to whom he claimed to have sold the land.
Malami said his request was that his interest in the property had ceased, stating in his letter: “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.”
