Alhaji Y. A. O. Bello v. The Diocesan synod of Lagos & Ors (1973)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C.

The present appellant, Alhaji Y. A. O. Bello, became, in the events that happened, the plaintiff in an action originally instituted by his mother, Madam Ashinmowu Bello, in the High Court, Lagos and in which the writ was originally endorsed as follows:

“The plaintiffs claims against the defendants jointly and severally are (a) 8,000 pounds special and general damages for damage done to the plaintiff’s property at No.1 Edwin Street, Lagos due to the negligence/nuisance of the defendants in the execution of building operations being carried out by the defendants on their land St John’s Aroloya Church adjoining the plaintiff s property.

(b) An injunction restraining the defendant from doing further damage to the plaintiff’s said property.”

The original plaintiff died soon after the filing of some of the pleadings but before the actual trial of the action. The present appellant, who will hereafter in his judgment be referred to as the ‘plaintiff’, took out letters of administration to the estate of his mother and so prosecuted the action in his capacity as the personal representative of Madam Ashimowu Bello (deceased). There were originally three defendants to the action as follows:

(i) The Trustees of the Diocese of Lagos (C.M.S.) Nigeria.

(ii) Messrs Rodio S.C.C. (Nigeria) Ltd.

(iii) Arbico Ltd.

Later in the course of the proceedings, the designation of the 1st defendants was amended to read:

“The Diocesan Synod of Lagos”.

Also in the course of the proceedings and, indeed on the 26th November, 1969 the plaintiff withdrew the case against the 1st defendants and as against them his case was dismissed on that day. In the course of the hearing and during the cross-examination of the plaintiff the High Court ordered the joinder of a further defendant described as follows

“D. A. Cole and M. O. Leigh as representing the Parochial Committee of St. John’s Church, Aroloya, Lagos.”

Previous to this and on the 29th September, 1969 pursuant to an application by learned counsel for the defendants the Lagos Executive Development Board was joined as the 5th defendants to the action. All these defendants, except the 1st, are now the respondents before us and in this judgment they would be referred to as defendants in the order and the signification in which they defended the action. With respect to the Lagos Executive Development Board, we observe that since the hearing of this case the Lagos State Development and Property Corporation Edict No.1 of 1972 had been promulgated as a result of which the Lagos Executive Development Board as such had been dissolved and the Lagos State Development and Property Corporation created to take over its assets and liabilities.

By virtue of section 8 of the Edict No.1 of 1972, the Lagos State Development and Property Corporation now takes over the assets and liabilities of the Lagos Executive Development Board “without further assurance”, and as such and by virtue of the provisions of subsection (3) of section 8, this action therefore enures for and against (as the case may be) the Lagos State Development and Property Corporation so that references to the Lagos Executive Development Board in this judgment shall be taken as references to the Lagos State Developmerit and Property Corporation.

Pleadings were ordered and filed. The plaintiffs statement of claim avers that the 1st defendants are the supreme authority vested with the right to administer the affairs of the Anglican Church community in Lagos and that they own church premises of St. John’s Aroloya whose servants and/or representatives had engaged the services of the 2nd and 3rd defendants to “carry out building operations on St. John’s Church, Aroloya premises”; that pursuant to this the 2nd defendants did bury on the site of St. John’s Aroloya about 94 piles each over 60 feet long and that the plaintiff shouse and building which was near the 2nd defendants’ site suffered severely as a result of the operations. Paragraphs 9, 10 and 11 of the statement of claim read as follows:

“9. The 2nd defendant did bury on the site about ninety-four piles each over sixty feet long. The 2nd defendant knows that piling operations are always accompanied by very heavy vibrations which must escape from the operation site to adjacent premises, and do damage thereto.

10. The 2nd defendant knew, that due to the proximity of the plaintiffs building to the building site, vibrations resulting from the operation would escape unto the plaintiffs land and do damage thereto.
11. During and after the piling operations the foundation of the plaintiffs house at No. 1 Edwin Street, Lagos, was so badly shaken and considerably weakened to the extent that cracks of 2″ – 3″ wide began to appear on the walls of the plaintiffs building and a substantial portion whereof became unsafe as a residence. This damage was caused by the vibrations from the heavy piling operations.”

The statement of claim further avers that after the piling was done by the 2nd defendant, the 3rd defendants entered the site and commenced building operations thereon and indeed dug the foundations for a church building. Paragraphs 14, 15 and 16 of the statement of claim aver as follows:

“14. The foundations were dug very deep and very close to the plaintiff’s land and in such a negligent manner that the plaintiffs land and building lost support due to the excavations of the subterranean soil from the plaintiff’s land.

15. In consequence of the loss of subterranean soil of the plaintiffs land due to the excavation by the 3rd defendant, the already weakened and cracked walls of some rooms of the plaintiff’s building on the land collapsed rendering four rooms of the out-house completely inhabitable.
16. The 3rd defendant knew or ought to have known that the plaintiff’s land and building would be affected in consequence of its negligence in the execution of its works.”

The statement of claim finally sets out the particulars of negligence and claims that the plaintiff had suffered damage and loss by reason of the aforementioned premises. The statement of defence filed by the 1st defendants, i.e. the Diocesan Synod of Lagos, denies responsibility for the act of any of the other defendants and avers that St. John’s Church, Aroloya, has its own separate and distinct governing body and a Parochial Committee which manages the affairs of the church. Paragraphs 10 and 11 of the statement of defence filed by the 1st defendants aver as follows:

” 10. From all information available to the defendant upon enquiries caused to be made, the defendant will contend at the trial that even if the acts complained of affected No.1 Edwin Street, Lagos, the plaintiff is not entitled to the claim herein in that the property forms part of the area acquired by the Lagos Executive Development Board and sold to St. John’s Church, Aroloya, Lagos. The notice of acquisition is contained in a Publication in the West African Pilot of 17th January, 1967. The defendant will rely on the provisions of section 45 (2) of the Lagos Town Planning Act, Cap. 95 of the Laws of the Federation of Nigeria and Lagos to contend that the property at No. 1 Edwin Street, Lagos, became vested in the Lagos Executive Development Board and all rights of occupancy terminated on the said 17th January, 1967.

11. From all information available to the defendant, the said Lagos Executive Development Board acquired the said property as well as adjoining property and sold the same to the Building Committee of St. John’s Church, Aroloya, by virtue of section 59 (1) of the Lagos Town Planning Act, Cap. 95″.

In the same way the 2nd defendants, i.e. Messrs Rodio S.C.C. (Nigeria) Ltd., filed and delivered a statement of defence. In that statement of defence they admitted having buried some pillars on the premises of St. John’s Church, Aroloya, but denied negligence as well as all the other substantial averments in the plaintiff’s statement of claim. In paragraph 7 of their statement of defence, the 2nd defendants averred that they would contend at the trial of the action that they were employed by the 4th defendants to carry out the foundation works on the premises; that the property No.1 Edwin Street, Lagos, as well as adjoining lands had been acquired by the L.E.D.B. and that the property, i.e. No. 1 Edwin Street, and the adjoining lands had been sold by the L.E.D.B. “to St. John’s Church, Aroloya, for the sum of 8,000 (eight thousand pounds)”. The 3rd defendants, Arbico Ltd., also filed a statement of defence by which they denied negligence and liability for any damage to the plaintiff’s premises and contended, like the 2nd defendants, that the property in question had been acquired by the L.E.D.B. and sold to the 4th defendants. The 4th defendants, representing the Parochial Committee of St. John’s Church, Aroloya, Lagos, also filed and delivered a statement of defence. By that statement of defence they admit the adjacency of St. John’s Church, Aroloya, to the plaintiff’s property No.1 Edwin Street, they admit that they had engaged and instructed the 2nd and 3rd defendants to carry out the operations alleged by the plaintiff in his statement of claim but they deny negligence and liability for any damage to the plaintiff’s property. Their statement of defence further avers that they will contend at the trial that the property No.1 Edwin Street and adjoining lands had been acquired by the L.E.D.B. and sold to them for 8,000 pounds and that in any case the plaintiff had not yet challenged the validity of the acquisition by the 5th defendant. By their statement of defence the 5th defendant, i.e. the L.E.D.B., specifically traverse all the paragraphs of the plaintiff’s statement of claim and in paragraph 3 thereof aver as follows:

“3. The 5th defendant will contend at the trial of this motion that;

(a) the 5th defendant is a statutory body incorporated under and by virtue of the Lagos Town Planning Act. Cap. 95, Laws of the Federation of Nigeria and Lagos.

(b) Under and by virtue of the power conferred on the 5th defendant by the Lagos Town Planning Act. Cap. 95 the area marked Red on Plan No. 1008/SD dated 3rd January, 1967, attached hereto and marked exhibit A became vested in the Board on 11 th January, 1967.

(c) The property known as No.1 Edwin Street, Lagos, marked Blue in Plan No. 1008/SD attached referrred to in paragraph 1 of the plaintiff’s statement of claim formed part of the area acquired referred to in paragraph 3 (b) above.

(d) The notice of acquisition of the plaintiffs property and other affected adjoining properties was served on the occupiers and also published in the issue of the West African Pilot of the 17th January, 1967, and in the Daily Times of 19th January, 1967.

(e) The 5th defendant has the intention and is prepared to rehouse the occupiers of the said acquired property and has in fact rehoused occupiers of No.3 Edwin Street, who were similarly affected by the acquisition.

(f) The owner of No. 1 Edwin Street is entitled to claim and receive compensation in respect of the property which the Board is willing and ready to pay.

(g) The 5th defendant is willing to pay compensation for the property and had so informed the plaintiff.

(h) The 5th defendant under the power conferred on it by the Lagos Town Planning Act, Cap. 95 sold the acquired properties referred to in paragraph (3) (c) above marked Red in Plan No. 1008/SD including the plaintiff’s property to the 4th defendant for extension to St. John’s Church, Aroloya, Lagos, as stated in the Notice of Acquisition referred to in paragraphs 3 (e) and 3 (d) above.

(i) That by virtue of the acquisition of the property referred to in paragraphs 3 (e) and 3 (d) and the vesting in the Board referred to in paragraph 3 (b) above, the plaintiff is no longer the owner of the property known as 1 Edwin Street, Lagos. Wherefore the 5th defendant claims that the plaintiff’s action is misconceived, and speculative and should be dismissed with costs.”

By an amendment to their statement of defence those defendants, i.e. the L.E.D.B., further aver as follows:

“That the 5th defendant will rely on the Lagos Town Planning Act, Cap. 95 Laws of the Federation of Nigeria and the Lagos Town Planning (Redeclaration of Planning Area) Order, 1966 L.N./120/66”.

The plaintiff then filed a reply to the statements of defence of the 4th and the 5th defendant. In his reply, the plaintiff avers that some time in 1965, the 4th defendant had approached him with a request to sell the property No.1 Edwin Street, Lagos, to them but as he refused to do this the negotiation fell through. Paragraph 5 of the plaintiff’s reply reads as follows

“5. The 4th defendant repeated the request continuously several times and each time the plaintiff refused to sell. The last time was sometime in June 1966 when after the plaintiff had refused as usual, one of the members of the 4th defendant boasted that they would get the properties whether the plaintiff liked it or not. That was the last seen of them.”

The plaintiffs reply further avers that although during the month of January 1967, he read in the local newspapers a notice of the purported acquisition of his property by the L.E.D.B. yet no notice whatsoever was ever served on him by the L.E.D.B. and “no letter or correspondence whatsoever has been received by the plaintiff from the 5th defendant over this matter”, and that he is still in undisturbed possession of his property. The plaintiff’s reply further avers that the 5th defendant had no scheme for the area concerned and no financial provision for the acquisition of his property. The reply yet further states that the 4th defendant deposited some money with the 5th defendant for the purpose of acquiring his property. By paragraph 10 of the reply, the plaintiff contends that at the trial he would ask for a further relief’ ‘that the purported acquisition of the plaintiff’s properties by the 5th defendant is ultra vires illegal, void, constitutes a gross abuse of power and should be set aside.”

At the trial, the plaintiff gave evidence in support of the averments in his statement of claim and reply. He produced in evidence the letters of administration which he obtained with respect to the estate of his mother who was the original plaintiff. He also produced the conveyance covering the property No.1 Edwin Street, Lagos, in the name of the original plaintiff. This was admitted in evidence as exhibit D and the plaintiff stated that the building was constructed of mortar and bricks and had been in existence on the site for some 50 to 60 years and that he and his mother and lived there since 1932. He described the nature and effect of the vibrations caused by the operations of the 2nd and the 3rd defendant on the site of the 4th defendant and stated that consequent on this “the wall of the outhouse collapsed because the digging penetrated into my own building”. He testified that he then employed the services of a professional engineer to assess the damage done to his property and claimed damages to the total amount of 8,000 pounds. Concluding his evidence in chief, he testified as follows:

“It is nonsense to say the L.E.D.B. has acquired the property. I have not been served with any notice of acquisition. I am in possession of the property with my sisters. It is false to say I have received compensation from the L. E. D. B. ”

Cross-examined on the question of service of notice of acquisition, the plaintiff testified thus;

“It is a lie to say that one Mr Alabi of L.E.D.B. came into the premises and pasted one of the notices on my building. I do not know one Mr Alabi. (Mr Alabi is brought in.) Witness says ‘I have never seen him in my life. Nothing was pasted on the walls of my premises. My mother was never served by Mr Alabi with the notices. I did not get the notices from my mother or throw it at Mr Alabi.”

In support of his case, the plaintiff called as a witness a structural engineer who had inspected the premise during the operation and had submitted a report and plan which at the trial of this action were put in evidence and admitted as exhibits G, G1 and H respectively. In the same way a building superintendent at the Lagos City Council, by name Razaq Lawal, testified to having served a dangerous building notice on the plaintiff when he saw the resultant condition of his house, No. 1 Edwin Street, Lagos, during the operations.

The defendants also gave evidence in support of the averments in their statements of defence. For the 1st defendant Mr Justice Adefarasin, Chancellor of the Diocese of Lagos and a judge of the High Court of Lagos State, gave evidence and stated that the Diocesan Synod of Lagos is neither in occupation of the property nor vested with the title of the premises of St. John’s Church, Aroloya. The other defendants also gave evidence and called witnesses in support of their pleadings. The 2nd and 3rd defendants denied negligence and claimed that the systems adopted by them could not have produced the result described by the plaintiff and/or his witnesses. The 4th and 5th defendants claimed that the property had been duly acquired by the 5th defendant and sold to the 4th defendant for an amount of 8,000 pounds. David Oluremi Soremelrun, the Secretary to the L.E.D.B., testified for the 5th defendant and stated that the notice put in evidence as exhibit P was one of the notices served by the L.E.D.B. on the plaintiff in respect of the acquisition and admitted that there was an exchange of a series of letters between himself and the plaintiffs solicitors. Concerning the acquisition, this witness testified as follows:

“The acquisition was done in the proper way. The purpose of the acquisition is for the extension of the church which the Board considers necessary being an amenity in the neighbourhood and demolition (sic) from the planning point of view”.

In a reserved judgment the learned trial Chief Justice dismissed the plaintiffs case with costs. With respect to costs, the learned Chief Justice heard the parties and then observed as follows:

“After hearing the counsel for the parties I am of the view that the plaintiff should bear the costs against the 1st defendant who was improperly joined and these costs I assess at 35 guineas. As against the 2nd, 3rd and 4th defendant I am of the view and in the exercise of my discretion that the 5th defendant by not going into possession and by not referring into some belief erroneously that they may not have been pressing with the acquisition ought to pay the costs of the 2nd, 3rd and 4th defendant in a joint though unequal share with the plaintiff. I assess these costs to the 2nd, 3rd and 4th defendant in the sum of 150 guineas, i.e. 50 guineas to the 2nd defendant, 50 guineas to the 3rd defendant and 50 guineas to the 4th defendant payable by the plaintiff and 5th defendant in this manner: 50 guineas by the plaintiff and 100 guineas by the 5th defendant.

Be that as it may, the learned trial Chief Justice found that the 5th defendants did not enter into possession of the property No.1 Edwin Street, Lagos, as postulated by the acquisition notice exhibit P (and exhibit E); he found that the acquisition notice had been properly and duly served and that at the material time the property was vested in the 5th defendant. He observed further concerning the claim for injunction as follows:

“It is true that there is also a claim for an injunction which can be taken by an occupier in possession, but the case has not been fought out on those grounds. In any case the plaintiff will always be met by the provisions of section 46 (3) and (4) of the Act.”

He declined to deal with the issue of damages and the assessment of same and, as stated before, he proceeded to dismiss the plaintiffs case.

This appeal is from that judgment. To start with, we must reiterate the directions we have given numbers of times in matters in connection with which damages are claimed. Apart from those directions from this Court, the law reports are replete with cases indicating the prudence of assessing the damages which would be payable to a party in case that party had won on the claims before the court, even though the judge or tribunal was dismissing the plaintiffs case. Clearly, in this case the damages payable in case the plaintiff had won the case should have been assessed but it was not done. Such a step obviates the necessity for a court of appeal to send back the case for re-trial only on that issue and the consequent expenses and loss of time inflicted on litigants.

Four grounds of appeal were filed and argued on behalf of the plaintiff and these grounds of appeal can be easily summarised as follows

(i) That the judgment is against the weight of evidence.

(ii) That the learned trial Chief Justice erred in law in holding that the notice of acquisition was duly served in accordance with law.

(iii) That the learned Chief Justice erred in law in upholding the validity of the purported compulsory acquisition of the plaintiff’s property when the acquisition was not in furtherance of powers to acquire for the execution of the purposes of the Act or for improving and preserving the amenities of Lagos as postulated by the Lagos Town Planning Act.

It is easy to see that the grounds of appeal are not mutually exclusive of each other and we propose to deal with all the grounds of appeal unter tow heads covering, firstly, the validity of the acquisition and, secondly, the due service notion of the acquisition.

It is common ground that the property concerned is No.1 Edwin Street, Lagos; that the property is situate adjacent to the premises of St. John’s Church, Aroloya, Lagos in the area of Lagos popularly called Aroloya. The plan put in evidence by the 5th defendants, exhibit Q, clearly shows these points. There is also no dispute as to the original titleship of the property. It once belonged to the mother of the present plaintiff and the present plaintiff is prosecuting the action in the capacity in which he has been described on the amended processes. The plaintiff also claims that along with the other members of his family, he is still in undisturbed and exclusive possession of the premises and indeed the case of the defendants envisages this. The purpose of the action is therefore to obtain redress for any trespass found to have been done to his possession and to ensure that the owners and occupiers of the property are not deprived of their rights as such either now or in the future. Furthermore, although the pleadings in the case are long and various, it is easy to see that the plaintiff’s case is disputed only in respect of damage alleged to be done to the premises and the present title to the property. The learned trial Chief Justice held that the property had vested in the L.E.D.B. but left without consideration, as pointed out, the issue of damage and any findings on that issue. Apparently that was the reason why at the inception of the appeal, learned counsel for the plaintiff sought and obtained leave to amend the nature of the relief claimed in this Court to read

“In the alternative the appellant will seek an order for re-trial on the issue of quantum of damages and will ask that judgment be entered in his favour on the claim for injunction.”

As already stated, the plaintiff’s case was met with the defence that the property does not any longer belong to him because it had been acquired by the L.E.D.B. “for purposes of extension to the St. John’s Church, Aroloya premises”; and that it had been duly conveyed to the 4th defendants who represent that church.

In order to appreciate fully the arguments of learned counsel, it is necessary to study the genesis of the whole action. It appears that the first correspondence in point of time is the letter exhibit L dated the 28th July, 1966 written by the Permanent Secretary. Federal Ministry of Works, to the 4th defendant acknowledging the receipt of another letter which is not in evidence in these proceedings. Exhibit L read as follows:

“Sir,

St. John’s Church, Aroloya, Lagos- Building Scheme

I am directed to acknowledge the receipt of your letter dated 2nd July, 1966, and to inform you that your request has been forwarded to the Lagos Executive Development Board for consideration.

2. You would be informed of any development in due course.”

The letter to which exhibit L is a reply obviously got to the 5th defendant for on the 20th October, 1966 by a letter admitted in evidence as exhibit M, the 5th defendant wrote as follows to the 4th defendant;

“Dear Sir,

St. John’s Church, Aroloya, Lagos-Building Scheme

With reference to your letter dated 2nd July, 1966 addressed to the Permanent Secretary, Ministry of Works, I forward herewith sketch plan showing the area which was originally ear-marked in our lay-out for extension to the church site.

I should be grateful if you would indicate whether this would meet with your requirements. If so, the Board will be in a position to acquire on your behalf the extra piece of land for which your church should be prepared to pay for the cost of acquisition.”

On the receipt of exhibit M it is manifest that the 4th defendant became active and clearly from the letter admitted in evidence as exhibit N a meeting was soon held between the 4th and 5th defendants. Exhibit N (undated) reads as follows:

”Dear Sir,

I refer to a meeting held on 7th September, 1966 with officers of my board when the question of the proposed extension to St. John’s Church, Aroloya was discussed. Officers of my Board have since carried out the valuation of the 5 properties likely to be affected by the extension.

The estimate is as follows:-

20 Palm Church Street ………………………………. 840 pounds

22 Palm Church Street …………………………….1,895 pounds

24 Palm Church Street ……………………………..1,457 pounds

1 Edwin Street …………………………….. 2,050 pounds

3 Edwin Street …………………………….. 1,820 pounds

Total …………………………………………………… 8,062 pounds

To this should be added survey fee, legal expenses, ex-gratia compensation to tenants and general development expenses. This will make a grand total of 8,800. Alternatively, if only 3 Edwin Street is to be acquired the cost will be 1,820 plus additional expenses viz; survey fee, legal fee, ex-gratia compensation plus general development expenses, the grand total of which will be 2,200 pounds. On the receipt of exhibit N, the 4th defendant accepted its contents for they sent a cheque for the amount of 8,800 pounds to the 5th defendant which then promised that it would take steps “towards the completion of the acquisition’. The letter exhibit O (also undated) reads to full as follows:

”Dear Sir,

Re-Acquisition of Land for the Extension to St. John’s Church, Aroloya.

I have to acknowledge the receipt of your letter of 9th November, 1966 and the cheque No. c/5 745468 on the Bank of West Africa, marina Lagos for the sum of 8,800 pounds as full payment towards the above acquisition, and I have to inform you that necessary action is now being taken towards the completion of the acquisition.

Another communication will be addressed to you on this matter later.

I enclose my Board’s receipt No. 68985 for the cheque received.”

Indeed, the receipt issued by the 5th defendants to the 4th defendants, which confirmed to the latter the transfer to them of the plaintiff”s property, was produced in evidence by the 4th defendants and marked exhibit O1.

The receipt exhibit O1 acknowledged the receipt by the 5th defendants of the sum of 8,800 pounds being payment in respect of the acquisition of five different properties for the purposes of the extension to the church; 20 Palm Church Street, 22 Palm Church Street, 24 Palm Church Street, Edwin Street. So, the plaintiff’s property is one of those envisaged by exhibit O and exhibit O1 and in respect of which payment had been made by the 4th defendants to the 5th defendants. Exhibit O1 is dated the 10th November, 1966. On the 11th January, 1967 the 5th defendants issued an acquisition notice put in evidence as exhibit E for exhibit P) and the notice is as follows.’ ”LAGOS EXECUTIVE DEVELOPMENT BOARD

LAND ACQUISITION NOTICE (Cap. 95)

SITE FOR EXTENSION TO ST. JOHN’S

CHURCH, AROLOYA, LAGOS.

Notice is hereby given that all that parcel of land comprising properties Nos. 20-24 palm Church Street and Nos. 1-3 Edwin Street, Lagos, in the Federal Territory, comprising an area of 643.86sq. yds., the boundaries of which are descried below, is required by the Lagos Executive Development Board for public purposes only.

DESCRIPTION

Any person claiming to have any right or interest in the said land is requested within two (2) weeks from the date of this notice to send to the Chief Executive Officer, lagos Executive Development Board, P.O. Box 907, Lagos, a statement of his right and interest and of the evidence thereof and any claim made by him in respect of any such right of interest.

The Chairman, Lagos Executive Development Board is willing to treat for the acquisition of the said land.

Land in respect of which no interest is received is likely to be treated as an unoccupied land.

A notice is also hereby given that the Chairman, Lagos Executive Development Board intends to enter into possession of the said land at the expiration of six (6) weeks from the date following the publication of this notice.

It was in pursuance of the notice exhibit P that the 5th defendants claimed to have compulsorily acquired the plaintiff’s property which, by virtue of the receipt exhibit O1, they had purported to sell the 4th defendants. A fair reading of the exhibits produced in evidence reveals that before the issue of the acquisition notice, exhibit P, the beneficiaries of the property, i.e. the 4th defendants, had deposited the agreed price with the 5th defendants and they all knew that thereafter the 5th defendants were to use their statutory powers to acquire the plaintiff’s property and then transfer that property to the 4th defendants. That was the purpose of the whole exercise and that purpose rang a bell throughout the whole proceedings.

It is common ground that the powers of the L.E.D.B. to acquire or purchase land are as contained in section 43 of the Lagos Town Planning Act Cap. 95. that section reads as follows:-

”43 (1) The board may for the purpose of the execution of the provisions of this Act, or for improving and preserving the amenities of Lagos, purchase any land in an area declared under section 17 to be a town planning area by agreement or compulsorily in manner hereinafter provided notwithstanding that such land is not immediately required.

(2) The board may, if requested by a person to whom compensation is payable under this section, retain the sum payable for such period as may be agreed upon and while such sum is so retained pay to him interest thereon at the rate of six pounds per annum or such lower rate as may be agreed upon.”

So, clearly emerging from the wording of section 43 (1) are the two purposes for which the L.E.D.B. is authorized to acquire or purchase property, viz.

(i) for the purpose of the execution of the provisions of the Act; and

(ii) for improving and preserving the amenities of Lagos.

With respect to the first of these two purposes for which acquisition is authorized, that is for execution of the purpose of the Act, recourse must be had to the provisions of Part 4 of the Act which deals with town planning schemes. Sections 16 and 17 of the Act, as contained in this part, unequivocally prescribe the establishment first of all of a scheme of the town area or any part of Lagos and the other sections of Part 4 deal with the projection, approval (whether with or without alterations) and execution of such a scheme.

In the course of his evidence on behalf of the 5th defendants, the Secretary of the L.E.D.B., Mr. Soremekun, testified as follows

”Planning schemes may not have been made. No scheme has been formulated here but it is a Town Planning Area.”

We observe frankly that it is difficult to understand what the witness meant in view of the provisions of section 17 of the Lagos Town Planning Act which states as follows:-

”17 (1) If the board is of opinion that schemes should be made for the town area or any part thereof and makes representations to that effect to the Military Governor, the Military Governor may by order declare area: Provided that the Military Governor shall have power before approving to modify the area specified in the board’s representations by adding thereto or by omitting therefrom any portion or portions of land.

(2) Such order shall be published in the Gazette and posted at the municipal offices and shall come into operation upon the date of such publication in the Gazette and shall cease to have effect if within three years from such date no scheme in respect of the planning area has been approved under the provisions of section 23.”

Surely the meaning and effect of sections 17 are clear and the section is designed to create as town planning areas in respect of which representation for a scheme have been made. Section 17 (1) clearly suggests that there could be no town planning area where there had not been already representations for the making of a scheme. It was contended for the L.E.D.B. before us that the area concerned is covered by legal Notice No. 120 of 1966.

That Notice so far as it is material reads as follows:-

”1. This Order may be cited as the Lagos Town Planning (Re-declaration of planning Area) Order 1966 and shall be deemed to have come into operation on the 28th day of February, 1966.

2. All that area of the City of Lagos described in section 2 of the Lagos Town Planning (Re-declaration of Planning Area) Order in Council 1947, but excluding therefrom the areas referred to in the Schedule to this order is hereby re-declared to be a town planning area.”

Even if the area in question is so declared a town planning area, there was no evidence that the L.E.D.B. complied with the provisions of section 19 of the Act which enjoins on them the duty of causing “town planning schemes to be framed for such area or any part thereof” within three years. Indeed, the evidence of the 5th defendant is to the effect that there was at present no scheme in respect of the area. There is therefore no reason or justification for the application in this case of any of the provision of the Act which deal with the approval of a scheme and/or its execution.

We have had to make these observations because it appears to us that in the execution of a scheme, the L.E.D.B. has wide powers of dealing with property belonging to citizens even in the exploratory stages of implementation of such schemes. (see sections 30, 31 ,34, 38, 38, etc).

Be that as it may, all parties agree that in respect of the area in dispute there is no scheme in accordance with section 16 of the Town Planning Act. This was in effect the submission of learned counsel for the plaintiff who also stated that the L.E.D.B. has neither a scheme nor the money to support such a scheme in accordance with the Act and covering the area in question. The Secretary to the L.E.D.B. also said this in the course of his evidence in court. He called it a town planning area, but a town planning area is so declared by virtue of an order made in consequence of some representations for a scheme. Learned counsel representing the 5th defendants also submitted in the course of his address that the L.E.D.B. had no scheme for the area concerned and indeed for the property of the plaintiff.

We point out however that by the provisions of section 17 of the Town Planning Act a town planning area may be so declared. It also appears to us that the L.E.D.B. had got it declared that the area in question in this case is a town planning area by virtue of legal notice No. 120 of 1966. We observe as well that in the case of a town planning area which could vest in the L.E.D.B. by virtue of the provisions of section 45 (2) of the Lagos Town Planning Act, it is expressly provided by that sub-section that the preliminary acquisition should be in accordance with section 45 (2) of that Act provides as follows-

”45 (2) When any land situate in a town planning area but not included in a scheme is to be acquired under the provision of section 43 such land shall vest in the board upon service of a notice by the board on the owner that such land is required by the board for the development of Lagos. All leases and rights of occupancy under any tenancy in respect of such land or building which are existing at the time of notification shall be deemed to be terminated, if not previously terminated by agreement, at the time of the service of the notice but without prejudice to any lessees” or occupiers” rights in any compensation payable under section 41 or 49”.

It was submitted by learned counsel for the plaintiff that section 45 (2) could not avail the 5th defendants in view of the facts of this case and the pleadings and, principally, because an extension to St. John’s Church, Aroloya, is not a public purpose and cannot and does not constitute on improvement or preservation of the amenities of Lagos and, that in any case the purpose of the Act is to make the L.E.D.B. the master of the situation and the town planner and not merely the agent of a private party or institution.

On the other hand, learned counsel for the 5th defendants maintained that the L.E.D.B. as entitled to acquire any property forming part of a town planning area by virtue of section 43 and that such area vests in the L.E.D.B. as stated by and in accordance with the provisions of section 45(2) of the Lagos Town Planning Act.

The principle on which the courts have acted from time immemorial is to construe fortissime contra preferentes any provision of the law which gives them extraordinary powers of compulsory acquisition of the properties of citizens. In re Bowman, South Shields (Thames Street) Clearance Order, 1931) [1992] 2 K.B. 621 at 633, Swift J, described the position thus:

”When an owner of property against whom an order has been made under the Act comes into this Court and complains that there has been some irregularity in the proceedings and that he is not liable to have his property taken away, it is right. I think, that his case should be entertained sympathetically and that a statute under which he is being deprived of his rights to property should be construed strictly against the local authority favourably towards the interest of the applicant, in as much as he for the benefit of the community is undoubtedly suffering a substantial loss, which in my view must not be inflicted upon him unless it is quite clear that Parliament has intended that it shall.”

In such cases the provisions of the Statute are read dispassionately and effect is given to the spirit and intent of the legislation. What is required is in reality a fair and reasonable but strict construction of the Statute so that what is necessarily incidental is not excluded and what is extraneous, whether manifestly or subtly, is not included. See Westminster Corporation v. London and North-Western Railway Corporation (1905) A.C. 426. Very often the legislation concerned prescribes formalities to be adhered to or complied with as a pre-requisites of the exercise of compulsive powers. In the application of the law, the courts insist that the formalities prescribed should be fully complied with as a pre-requisites of the exercise of compulsive powers.. In Maxwell: Interpretation of Statutes, 12th Edition, p. 258 and concerning the interpretation of statutes conferring extraordinary powers, the following passage occurs:

”Where a statute confers a power and particularly one which may be used to deprive the subject of proprietary rights, the courts will confine those exercising the power to the strict letter of the statute”.

In the case of East Riding County Council v. Park Estate (Bridlington) Ltd. (1957) A.C. 223, the House of Lords affirmed the decision of the Court of Appeal that a notice served by the appellants on the respondents requiring the respondents to discontinue the use of a holiday camp purportedly in exercise of the appellants’ powers under the Town and Country Planning Act, 1947, was invalid in as much as the notice did not state that the alleged contravention had existed before the coming into operation of the Act. In the course of the judgment of the House of Lords, Viscount Simonds observed thus at p. 233.

”It was, in the first place, contended that the Act was highly technical and, as it encroached on private rights, the court must insist on strict and rigid adherence to formalities. This, as a general proposition, commands assent, and not the less because disregard of an enforcement notice is an offence involving sufficiently serious penal consequences.”

This rule of construction is invariably employed in the construction and application of statues dealing with compulsory acquisition or expropriation of property and it is right to describe the principle as universal. See also in this respect the New Zealand case of Bartrum v. Manurewa Borough (1962) N.Z.L.R. 21.

Now, we have referred to the pleadings and the history of the events which have culminated in this action. We have also referred to and reproduced the notice of acquisition served by the L.E.D.B. pursuant to the provisions of section 45 (2) of the Lagos Town Planning Act (i.e. exhibit E or exhibit P) on the plaintiff. The Lagos Town Planning Act provides no statutory form of notice and so the notice exhibit E (or exhibit P) must be taken for what it is or what it says. The notice states that the proposed acquisition is for the ”extension to St. John’s Church, Aroloya” and in the body of the notice it is stated that the land ”is required by the L.E.D.B. for public purposes only”. The question to be decided is whether the extension to St. John’s Church, Aroloya, is a public purpose or whether in the words of the Statute such an extension is an undertaking for ”improving or preserving the amenities of Lagos”. It is not contended nor could it have been contended that the facilities of St. John”s Church, Aroloya, are available for other than the parishioners of that church and that the premises of the church are the private property of the parochial Committee That was indeed so claimed in the proceedings and upheld by the learned trial Chief Justice. In the case of Chief Commissioner, Eastern provinces v. S.N. Ononye & Ors. (1944) 17 N.L.R., Waddington, J. observed with respect to an acquisition expressed to be for public purposes at pp. 143 – 144 of the report thus:

By no stretch of imagination can I see how the grant of a lease to a commercial company could be brought within the range of this definition of ”public purposes” and no argument was attempted to show that this purpose is within the definition.

All due publicity was given to the notice of acquisition required by the Ordinance, but the notice merely states ”for public purposes” and I find it difficult to understand why the particular public purpose is not stated. When the matter comes into Court it has to be admitted that there is no public purpose involved at all, and the impression is liable to be conveyed, no doubt quite erroneously, that there was something ulterior in the failure to make the purpose public.

These statutory powers are powers of a very exceptional character, whereby an individual can be deprived of his property compulsorily; and proportionally exceptional care ought to be exercised to avoid their abuse.”

See also per Buckley, J. in Denmon & Co. Ltd. v. The Westminister Corporation (1906) 1 Ch. 464 at 473. the powers of the 5th defendant to acquire land are set out in section 43 of the Act and in the circumstances of this case the provisions of section 16 are most relevant. It had not been argued before as the 5th defendants were acting within those provisions and any such suggestion would be negative by the admission that, although the area as far back as 1953 and 1955 had been declared a town planning area, there has been made for a scheme for some 20 years and whatever representations might have been made for a scheme to the appropriate authorities at that time by virtue of section 17 (1), have ever since remained in the embryonic state. There was never any purpose envisaged which enures for the general public. The 5th defendant requested the 4th defendants to deposit money with them and then, armed with that money, they proceeded to use their statutory powers of acquisition against the plaintiff and over his property in order to divest him of his property and by some carefully planned design transfer title, which they had purported to acquire thereto, to the 4th defendants in consideration of their monetary deposit.

Learned counsel for the 5th defendants had submitted in court before us that everything was properly done and that the only mistake made by the L.E.D.B. was to have accepted money from the 4th defendants before proceeding to make the acquisition. We do not accept this argument that all was properly done. The receipt of the deposit money by the 5th defendants is conclusive evidence of their aim and purpose in the whole exercise. This acquisition was never made for any public purpose whatsoever or indeed any purpose contained in the Lagos Town Planning Act and no section of that act could be properly invoked before the court. In Galloway v. The Major and Commonalty of London (1866) L.R.I.H.L. 34, the principle was extensively discussed by the House of Lords. At p. 43 of the report, Lord Cranwell, L.C. stated the principles thus:

”The case of the appellant, Mr Galloway, rested on a principle well recognized, and funded on the soundest principles of justice. The principle is this, that when persons embarking in great undertakings, for the accomplishment of which those engaged in them have received authority from the legislature to take compulsorily the lands of other, making to the latter proper compensation, the persons so authorised cannot be allowed to exercise the powers conferred on them for any collateral object, that is for any purposes except those for which the legislature has invested them with extraordinary powers. The necessity for strictly enforcing this principle became apparent, when it became an ordinary occurrence that associations should be formed of large numbers of persons possessing enormous pecuniary resources, and to whom are given powers of interfering for certain purposes with the rights of private properly. In such a state of things it was very important that means should be devised, whereby the Courts, consistently with the ordinary principles on which they act, should be able to keep such associations or companies strictly within their powrs, and should prevent them, when the legislature has given them power to interfere with private property for one purpose, from using that power for another. Lord Cottenham, in numerous instances, interfered in such cases; and the principle has been cordially approved of, and acted on, in all the Courts of law and equity and has been frequently recognised and confirmed in this House. It has become a well-settled head of equity, that any company authorized by the legislature to take compulsorily the land of another for a definite object, will, if attempting to take it for any other object, be restrained by the injunction of the Court of Chancery from so doing.”

In the present case, the pattern of action is similar and the impression created is that a statutory body had used its powers of compulsory acquisition to fulfill its purpose to satisfy a private institution. The L.E.D.B. was not the master of the situation, the L.E.D.B. was the agent, the hand by which the property of the plaintiff was compulsorily taken from him and handed over to the 4th defendant. The 4th defendants were requested to pay a deposit of money and they did pay exactly as deposit the amount found to the value at costing of the property involved no more (and of course no less) and the consequent exercise of acquisition and other secretarial duties were done free of charge for the 4th defendants but at public expense which in view of the evidence, must have been considerable. In the mad rush to get the matter through, a mistake had been made in the addition on exhibit N and the total amount to be paid should have been 8,062 pounds and 8,026 pounds which is shown on that exhibit. There is therefore a shortfall there of some 36 pounds (N72). The present case exemplified the position where a statutory body in abuse of compulsive powers has taken over the property of a subject not for the purpose for which its powers are created and vested in it but for other purposes. We think that the powers vested in the L.E.D.B. and by which the Board was empowered to acquire private property have been abused. We think it is time to apply the dictum of Lord Macnaghten in Mayor, etc of Westminister v. London and North Western Railway Company (1905) A.C. 426 at p. 430 to this effect.

”There can be no question as to the law applicable to the case. It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first.”

Without doubt, the L.E.D.B. had not, in the present case acted reasonably and certainly it did not act in good faith.

We think that the complaint on the first head of appeal is justified and that the validity of the acquisition could not be upheld.

On the second limb it was complained by learned counsel for the plaintiff that the notice of acquisition was not served in accordance with law and that because this, as well, the purported acquisition was invalid. We have already set out the provisions of section 45 (2) of the Lagos Town Planning Act. Needless to say, that sub-section 45 (2) of the Lagos Town Planning Act. Needless to say, that sub-section provides that the vesting of the land acquired shall take place ”upon service of a notice by the Board on the owner that such land is required by the Board for the development of Lagos”. The section says and this clearly does not mean an extension to the St. John’s Church premises at Aroloya. In this connection it should be noted that the notice exhibit E (or exhibit P) does state that the land or property was required for public proposes. The section of the law under which the 5th defendants were acting does not say so and to this extents was sell the notice is defective; the inclusion of ”public purpose” in the notice has the potential effect of deceiving one into forgetting or overlooking the fact that the 5th defendants can only acquire for the development of Lagos.

Whatever effect that may have on the whole proceedings can be gathered from this judgment. We now advert to the argument of learned counsel concerning the service of notices. Learned counsel for the plaintiff submitted in this connection that the notice was not served if served at all on the owner of the premises and that in any case it was not so properly addressed.

On the other hand, learned counsel for the 5th defendants maintained that the notices were properly served. We have already referred to the evidence of the plaintiff which is to the effect that neither himself nor his mother (now deceased) had been served with any notice as prescribed by law and that the first time he himself knew of the purported acquisition of his property was when he read the notice as published in local newspapers some time in January 1967 section 75 of the Lagos Town Planning Act which deals with the service of notices provides as follows –

”75 (1) Every notice, order or other document required or authorized by this Ordinance or by any regulations made thereunder to be served on any person may be served.

(a) by delivering the same to such person or by delivering the same at the abode where such person ordinarily resides to some adult member or servant of his family; or

(b) if the abode where such person ordinarily resides is not known, by forwarding the same by registered post addressed to such person at his last known place of abode or business; or

(c) if the name of such person is not known, or it service cannot with reasonable diligence be effected under paragraph (a) or (b) of this subsection, by fixing the same on a conspicuous part of the premises in respect of which the notice order or other document is issued.

(2) A notice, order or other document required or authorised by this Ordinance or any regulations made thereunder to be served on the owner or occupier of any premises shall be deemed to be properly addressed if addressed by the description of the ‘owner’ or ‘occupier’ of such premises without further name or description.”

So, the section prescribes the way and manner in which a notice of acquisition may be addressed as well as the way and manner in which such notice may be served. In this case the provisions of section 45 (2) are immediately relevant and by virtue of that sub-Section the notice should be served on the ‘owner’ and by virtue of section 75 (2) such notice must be delivered properly addressed if it were addressed to the owner at the premises in question, the 5th defendants had put in evidence exhibit E or exhibit P as copies of the notice which they had served. Exhibit E and exhibit P are the same and neither of them was addressed to anybody at all and it was not contended before us, as it was not before the High Court, that either was so addressed. Furthermore, with respect to the person to be served with the notice, it is apposite to refer to paragraph 3 (a) of the statement of defence of the 5th defendant which reads thus –

”(d) The notice of acquisition of the plaintiff’s property and other affected adjoining properties was served on the occupiers and also published in the issue of the West African Pilot of the 17th January, 1967.”

Section 45 (2) of the Lagos Town Planning Act does not say that the notice should be served on the occupiers. It prescribes that it should be served on the owners and therefore in this respect as well the service of the notice was bad in law.

Furthermore, the evidence does not show whether in fact there was any service at all. There was only one witness to the service of the notice and it is necessary to quote his evidence on the point. He stated as follows, inter alia.

”I went to all the properties invoked to get the names of the owners and occupiers. I did not get the name of the owner of 1 Edwin Street. I got the names of the owners of the other properties. …. I presumably saw two notices pasted on the outside wall of No. 1 Edwin Street by my men; I cannot remember seeing anyone at home. I did not know the name of the owner of No. 1 Edwin Street but around the 24th January, 1967 I found out the same of the owner. I have had the name written on other copies of these notices. I went against and pasted the notices on the walls of 1 Edwin Street with my men. There was an old woman bed-ridden inside but another old woman came out and asked what we were doing.”

Both exhibit E and exhibit P, as stated before, are the same. They are both dated the 11h January, 1967 and manifestly on that date the 5th defendants did not know the name of the owner or owners of No. 1 Edwin Street, Lagos. There is no evidence whatsoever that there was any attempt to discover the residence of the owner or owners and service under section 75 (3) of the Lagos Town Planning Act can only arise when it had become impossible to effect service under the provisions of sub-sections (a) and (b) of that sub-section. The learned trial judge had some qualms about the evidence concerning the service of the notice of acquisition but he though that it was possible that the notice was pasted on the wall of the building and that it had been torn up. There was however no evidence of this and that conclusion must rest only on the judge’s own speculation. With respect, this is a matter of which the law requires some proof, for the properly dos not vest in the 5th defendants unless and until a notice is properly address and served in the fashion prescribed by the Act.

We think therefore that on the 2nd ground of complaint also the plaintiff is justified and we accede to the argument of learned counsel for the plaintiff on this ground.

Learned counsel for the plaintiff had also submitted that the 5th defendants were joined in the case for all purposes of the claim and that like the other defendants the 5th defendants could, if they proved their case, be entitle to succeed. Learned counsel for the plaintiff then referred us to the following passage in the judgment of the learned Chief Justice which reads as follows –

”I should also mention at this stage that on the 29th September, 1969 Mr. Adesanya, learned counsel for the 2nd, 3rd and 4th defendants applied orally that the Lagos Executive Development Board be joined as 5th defendants in view of the defence that the property in dispute had been acquired by them. This order was made, no objection have been raised by counsel on either side. It should be made perfectly clear however that the plaintiff has no cause of action for damages against the the 5th defendant Board and the sole issue between them is whether the property was acquired by the Board before action was brought or not. If it was so acquired then the plaintiff would have no use of action against the other defendants and the action would be dismissed accordingly.”

We observe that neither of the learned counsel for the respondents made any observations in their reply to the submissions of counsel for the plaintiff and the plaintiff’s counsel therefore argued that there was no basis for the decision which the learned trial Chief Justice had made since the 5th defendants themselves did not claim any immunity from liability. There is of course nothing on the records to show that the 5th defendants were joined in the case for any limited purpose. The 5th defendant after their joinder filed a statement of defence in which they joined issue with the plaintiff on all the paragraphs of the statement of claim and by which they contended that the plaintiff’s action is misconceived and speculative and should be dismissed with costs”. In his reply to that statement of defence, the plaintiff did seek ancillary relief for a declaration that the purported acquisition of his property by the 5th defendants is ulta vires, illegal, void, constitutes of his property by the 5th defendants is ulta vires, illegal, void constitutes a gross abuse of power and should be set aside. As phrased, the relief claimed is loaded but it is clear that what the plaintiff wants is a declaration that the purported acquisition is void and that it should be declared to be of no effect. Prima facie, what is void is not to be set aside for ex nihilo nihil venit. See Macfoy v. U.A.C. (1961) W.L.R. 3. It is not clear what the learned trial Chief Justice though or decided concerning the claim, for in the course of his judgment and in connection with this point, he observed thus –

”For this reason I shall not concern myself with the validity or legality of the purported acquisition if I so find that there was in fact and in law an acquisition.

With respect, the validity or effectiveness of the acquisition of the plaintiff’s property is a relevant matter for consideration and the learned trial Chief Justice should not have avoided a decision on a matter which stands at the very threshold of the whole case. All the defendants had resisted the claims of the plaintiff on the grounds that the property was not his own and we were completely taken aback by the suggestion in the judgment that the question whether or not the plaintiff was the owner of the property would not be considered by the learned trial Chief Justice. We think he should have considered this issue and in the circumstances of the case he should have given the plaintiff the declaration which he had sought.

The learned trial Chief Justice did not deal in his judgment with the issue of damages. He made it abundantly clear in his judgment that he was very reluctant to come to the conclusion that the 5th defendants in connection with the whole acquisition exercise, principally because they failed to go into possession of this property in accordance with the provisions of the Lagos Town Planning Act and their own notice, exhibit E, he ventilated his disagreement with the conduct and action of the 5th defendants by making them liable to pay the plaintiff’s costs yet he did not make any findings on the damages or the extent of such damages as he should have done in case the court of appeal concludes, as he himself thought, that the liability of the 5th defendants for damages was established. The court of trial should in such cases make the necessary was established. The court of trial should in such cases make the necessary findings and quantify the damages as this course makes it unnecessary for the court of appeal to send back the case for a re-trial if it finds eventually in favour of the plaintiff.

The course we propose to take is to send back the case to the lower court for the learned trial judge to determine the issue of damages on the evidence before the court and with the direction that the 5th defendants are as much parties to the case and to all the claims of the plaintiff as the other defendants.

For the reasons which we have given in this judgment, the appeal succeeds and it is allowed. The judgment of the High Court, Lagos, in Suit No. LD/653/68, including all orders for costs, is set aside. We make the following orders:

(i) We enter judgment for the plaintiff on his claim for declaration that the purported acquisition of his property by the 5th defendant is void and of no effect, and an injunction in terms of the writ, and this shall be the judgment of the Court.

(ii) The case is hereby sent back to the trial Chief Justice with directions –

(a) to make the necessary finding on the issue of damages including liability, the extent of such liability and so on;

(b) that the 5th defendants are parties to the action in all respects as the other parties, their liability and its extent depending of course on the decision of the court;

(c) counsel on all sides should be entitled to be learned on this issue and only matters arising from this issue or incidental to it.

(iii) The respondents that is all the respondents to this appeal except the 1st respondents, i.e The Diocesan Synod of Lagos, shall pay the costs of the plaintiff on this appeal fixed against them jointly and severally at N200.

(iv) Costs in the court below, comprising of the costs of the plaintiff against all and every one of the defendants except the 1st defendants, i.e. The Diocesan Synod of Lagos, as well as any costs of the re-trial to any party, to abide that event.

Appeal allowed; plaintiff granted declaration and injunction sought; case remitted to trial judge for finding of on issue of damages.

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Other Citation: (1973) LCN/1753(SC)