A. J Owonikoko SAN Shares a Thought on the Magodo Judgment and Its Enforcement

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There is only one thing that is indisputable about the judgment delivered by the Supreme Court in that case in 2012. The Lagos State Government lost. Everything else is controversial and befuddling.

If anything looks shady in Nigeria, it almost certainly is – albeit not absolutely. I say no more. The Sanwo-Olu Govt is a victim of rapacious gamesmanship. He should just follow his conscience and let posterity judge him. The Governor (in his official capacity) is after all, the sole trustee of all lands comprised in the territory of Lagos state for the benefit of all Nigerians, subject to vested or pre-existing rights of deemed holders or grantees under the Land Use Act.

The Magodo case was prosecuted in a representative capacity. The resultant judgment was obtained in a representative capacity. In effect, post judgment, each represented party has specific interest in divided (presumably identifiable) right over their share in a large expanse of real estate that can only be enforced in specie. Right to be allocated 540 plots of land entitles each represented party to its adjudged share in accordance with the law and government’s discretion that govern land allocation in good faith. What, if one may ask, is a plot of land (unless it is somewhere contextually defined and incorporated by reference in an instrument)? As lawyers we don’t describe land in an instrument by our own whim – it’s by recourse to a duly registered survey plan prepared by a licensed surveyor with relevant details, measurements, dimensions in meters, abuttals, and legend where necessary to sufficiently identify the land. Where there is no plan, then description that sufficiently meets that objective as to location and dimensions which a surveyor may be able to reproduce is the irreducible minimum. A plot of land is therefore a meaningless expression without those details. 540 plots of land (lacking those details ) is no different .

In the Magodo case, at the final conclusion of the case – each represented claimant is obliged to identify and seek leave of court to enforce its interest as a benefited party ; in so do doing , it will be at liberty to settle or compromise it . It does not require or warrant collective enforcement, which would have been the case had the case been fought as family land dispute where interest of family members are joint until partitioned. It is not a monetary judgment either . If however there is default in enforcement (which sounds declaratory than executory) , the recourse in this case is to either use a miscellaneous enforcement action , or initiate contempt proceedings . Order II Rule 15 and 16 of the Judgments Enforcement Rules pursuant to section 94 of the Sheriffs and Civil Process Act , LFN 2004 are quite expository of what needs to be done if due process counts for anything . Rule 15 states -.”Where the judgment is to the effect that any party is entitled to any relief , subject to or upon the fulfillment of any condition or contingency , the party entitled may, upon fulfillment of the condition or contingency, and demand made upon the party against whom he is entitled to relief, apply to the court for leave to issue execution ; and the court may , if satisfied that the right to relief has arisen according to the terms of the judgment, order that execution accordingly , or may direct that any issue or question necessary for the determination of the rights of the parties be tried as in a suit.”

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The real crisis here was caused by the clients in not seeking the best suited relief from the apex court . That seems to be the bane of the unthinkable terms of the final decision sought to be enforced – an advisory exhortation judgment . It is elementary that a valid judgment must NOT be ambivalent; it must be exact and certain – to obviate confusion in giving effect to it. Cases abound where in the long and tortuous path that litigation traverses , rights of parties can be impacted before the case reaches final resolution . It behoves the parties to apprise the court of changes that have occurred during the pendency of the case , which might have consequences for the relief originally sought . Powers of court to make consequential orders are often then invoked to deliver real justice that addresses the grievance that gave rise to the dispute in the first place . We have seen the Supreme Court invoking this salutary power in local government dissolution cases . In Ekiti , IMO and Oyo States where local government councils were arbitrarily dissolved and replaced with hand-picked caretaker committee by state governors . A successful challenge after the tenure of the dissolved elected officials had ran out when the Supreme Court found for them , did not lead to empty judgment . Far from it. The Supreme Court crafted appropriate consequential reliefs for the successful parties by ordering that they be paid their full entitlement for the unused tenure as though they had been in office all of that time.

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Were the Supreme Court to have left respondent in Amaechi’s case ( who was unlawfully substituted by PDP while his case on his candidature was pending to create a fait accompli ) with their election as to whether ( or how) , to comply with their judgment in his favour- Amaechi would not have become Governor of Rivers State in 2007 nor Peter Obi in Anambra . This was how their lordship reasoned out and avoided the slippery trap of enforcement quandary in that referenced case. At page 106-107 of the report in the lead judgment of Katsina -Alu JSC (as he then was) (now of blessed memory ) this is what we find :

” The claim of the plaintiff/appellant at pages 68-70 of the record are declaratory and injunctive. He brought the claims so that he would not be substituted.

It is my view that the candidate for PDP at the election was the appellant. His name was unlawfully removed. In the eyes of the law, he remained the candidate and this court must treat him as such. My view is that it was the appellant and not the 2nd Respondent who must be deemed to have won the elections. The argument that the appellant must be held to his claims overlooks the fact that this court has the wide discretion to give consequential orders and to grant reliefs which circumstances and the justice of a case dictate. Wherever justice demands it, this court shall rise to do justice without regard to technicality.

I ought not to make an order which does not address the grievance of a party before this court. The only way to accord recognition to his rights unlawfully trampled upon is to DECLARE that the appellant and not the 2nd respondent must be deemed to have won the April 14 Gubernatorial Election. .. I declare the appellant the one entitled to be in the Governorship Seat in Rivers State since he was the lawful candidate of the PDP at the election.

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It is ORDERED that the 2nd respondent, Celestine Omehia, vacate the seat of Governor of Rivers State immediately and that the appellant be forthwith sworn in in his place. I will give my fuller reasons for the judgment on 18/1/2008. “

The case is reported as AMAECHI V INEC (No. 3) [2007] 18NWLR [Pt. 1065] SC 98.

I was privileged to be in the appellant’s successful team and we dedicated a good portion of our brief to what order the court should make in the event that our appeal prevailed . Not surprisingly the court went beyond declaring the right of Amaechi ; it went further to consequentially order , in no mistakable terms, what must be done and by whom . I am curious to find any correlation between this judgment on certainty for enforcement and compliance and the ambivalence which dots the decision in Magodo case. Nowhere did the Supreme Court order that the disputed land be vacated by Lagos State. No perpetual injunction was granted. Indeed, the direction to Lagos State to allocate land to the Magodo Landlords was a recognition that the land had been effectively acquired. The acquisition would have to be set aside to provide untrammelled right to enforcement of possessory right by successful parties in the Magodo Suit. Their right was merged in the judgment to a right to demand land allocation. To be enforced without undoing the legal system or risking relitigating, it would appear that only the Supreme Court can make the necessary consequential order ( Not NJC). Unfortunately, the judgment was written in English , and the Supreme Court is not famed for playing interpreter of its own final judgment handed down in English language except in its application as a precedent in a subsequent case that comes before their lordships. Perhaps the unpredictability of what might turn up in the post judgment proceedings when it travels its course back to the Supreme Court should chasten all parties to embrace a negotiated compromise that leaves everybody a little bloodied but not busted. Hopefully the truce deftly engineered by Gov Sanwo Olu for a negotiated settlement will save faces of all parties directly and collaterally concerned.

Culled from here

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