Agip (Nig) Ltd v. Attorney General of Lagos State (1977)

LawGlobal-Hub Lead Judgment Report

The plaintiff appellant claimed against the defendant/respondent

“(a) A declaration that the Military Governor of Lagos State and/or the Government of Lagos State is/are not entitled to resume occupation of land known as Plot 12A, Ijora Industrial Estate;

(b) An injunction restraining the Defendant and all other agents, servants or functionaries of the Lagos State Government from going into occupation of the aforesaid Plot 12A Ijora Industrial Estate pursuant to a Notice dated the 23rd day of November 1971 signed by the Defendant.”

The Statement of claim reads

“(1) The land referred to in the Writ of Summons and which is the subject matter of this action is all that piece or parcel of land situate at and known as Plot 12A in the Ijora Industrial Estate which is more particularly delineated in Plan No.13552 attached to the Indenture of Lease dated the 3rd day of September 1964 and registered as Number 11, at page 11 in volume 1219 of the Land Registry in the Office at Lagos (hereinafter referred to as the said land).

(2) The said land is State land within the meaning of State Lands Act.

(3) By the Deed of Lease referred to in paragraph 1 hereof, the said land was leased to Christopher Wilson Waddel for a term of 99 years commencing from the 1st day of July 1964 pursuant to the powers conferred on the Lessor by the State Lands Act.

(4) By a Deed dated the 5th day of May 1965 and registered as Number 2 of page 2 in Volume 1242 of the Lands Registery in the office at Lagos, the aforesaid Christopher Wilson Waddel assigned the said land to Intra Motors (Nigeria) Limited for the residue of the term vested in him.

(5) By a Deed of Power of Attorney dated the 6th day of February 1967 and registered as No.5 at page 5 in Volume 1258 of the Lands Registry in the Office at Lagos, Intra Motors (Nigeria) Limited appointed the Plaintiffs as its Attorney in respect of the said land with powers therein specified.

(6) By a Notice reference No. LJ/S.5/3T35 dated 23rd November 1971 the Defendant, acting for the Military Governor of Lagos State, notified the Plaintiffs that the Lagos State Government desires to resume occupation of Plot 12A Ijora Industrial Estate pursuant to the provisions of section 24 of the State Lands Act.

(7) Unless restrained by Order of Court the Defendant or other agents, servants or functionaries of the Lagos State Government will enter into occupation of the said land.

WHEREUPON the Plaintiffs claim as per the Writ of Summons.”

The statement of defence reads

“(1) Save and except as it is hereinafter expressly admitted the Defendant denies each and every allegation of fact contained in the Statement of Claim as if each had been set out and denied seriatim and specifically traversed.

(2) The Defendant admits paragraphs 1, 2, 3, 4, 5 and 6 of the Statement of Claim.

(3) The Defendant will at the hearing of this action raise a preliminary objection that the Statement of Claim discloses no cause of action.

(4) The Defendant avers that the Military Governor of Lagos State desires to resume occupation of the land known as plot 12A Ijora Industrial Estate on behalf of the Government of Lagos State or public purpose viz:- for exclusive Government use.

(5) The Defendant will rely on all legal and equitable defences available to him in law.

(6) The Defendant avers that the action is most conceived and frivolous and should be dismissed with substantial costs.”

After hearing argument as to whether, or not the statement of claim disclosed any cause of action, the learned trial Judge ruled that it did not, struck it out, and gave judgement for the defendant.

The plaintiff appealed to this Court against this ruling in favour of the defendant on the following grounds.

“(1) The learned trial Judge erred in law in striking out the Statement of claim when, having regard to the admitted facts, there is a clear case for the reliefs sought.

(2) The learned trial Judge erred in law in failing to observe that having regard to the admissions of the Defendant on the pleadings, the plaintiffs’. action ought to have succeeded and he ought to have entered judgement for the plaintiffs.

(3) The learned trial Judge erred in law in entertaining the Defendant’s application to strike out the statement of claim when there was no written application before him and the application was plainly frivolous and untenable.

(4) The 1st, 2nd and 3rd grounds of appeal remain valid and sustainable notwithstanding the provisions of the State Lands (Amendment) Edict No.8 of 1976 (hereafter referred to as the Edict) in that provisions aforesaid

(a) cannot apply to a pending action and

(b) are in any case unconstitutional and invalid.

Particulars of Invalidity

The Edict amends a law in force in Lagos State on the 31st day of March, 1958 and it contravenes sub-paragraphs (a), (b) and (c) of section 31 (2) of the Constitution of the Federation.

The averments contained in the plaintiff’s statement of claim were admitted and the facts of the case, so far as they are disclosed in the pleadings, are not in dispute. However, it is clear to us that issues were Joined and argument proceeded (before the lower Court delivered its ruling) on questions of law. The plaintiff claimed (1) a declaration that the Government of Lagos State is not entitled” to resume occupation of the land in dispute and (2) an injunction restraining the defendant from going into occupation of the land in dispute pursuant to a notice signed by the defendant. The plaintiff’s statement of claim makes it clear that the issue concerns the notice to the plaintiff that the Government of Lagos State ‘desires to resume occupation’ of the land in dispute from assignee (whose attorney is the plaintiff) of the residue of the term of a 99 year lease pursuant to the provisions of section 24 of the State Lands Law. (See paragraphs 3 and 6 of the statement of claim).

The defendant averred, on the other hand, that the Government of Lagos State desired to resume occupation of the land in dispute for a public purpose viz- for exclusive Government use”, and that he would rely on “all legal and equitable defences available to him in law” (see paragraph 5 of the statement of defence).

The original section 24 of the Crown Lands Ordinance Cap A5 of the 1958 Edition of the Laws of the Federation of Nigeria and Lagos, later entitled the State Lands Law, provided as follows (1) When any land sold or leased under this Ordinance exceeds two hundred acres the Governor may at any time enter and resume any portion of such lands for roads, railways, tramways, canals, water channels or trigonometrical stations or any other public undertaking without paying compensation for the land, but compensation shall be paid for buildings or crops destroyed or damaged: Provided that in the event of a larger portion than four per cent of such land being resumed for any such purpose as aforesaid there shall be paid to the owner or lessee, as the case may be, compensation for the land taken in excess of such portion.

(2) When any land sold or leased under this Ordinance does not exceed two hundred acres the Governor may at any time enter and resume any portion of such lands for any of the purposes mentioned in subsection (1), paying compensation for the land taken.

(3) Whenever land which has been leased is resumed under this section the lessee shall be entitled to a proportionate reduction in his rent.

(4) The Governor may authorise any officers of the Government, their servants and agents, to exercise the powers reserved to him by this section.

(5) Compensation payable under this section shall not exceed, in the case of buildings or crops, the market value of such buildings or crops, and in the case of land resumed the market value of such land.

(6) The compensation to be awarded under this section shall, if not agreed upon between the Governor and the claimant, be determined by the High Court in the like manner as compensation is determined under the Public Lands Acquisition Ordinance.

(7) Resumption of land under this section may be effected before the compensation (if any) is paid, either by actual entry on the land resumed, or by service of notice of resumption on the owner or lessee. ”

This section was later amended by Edict No. 11 of 1971, section 2 of which provided for the substitution in subsection (1) of section 24 of the Act of the words “any public purpose” for the words “roads, railways, train ways, canals, water channels, or trigonometrical stations or any other public undertaking.” The amendment effected by Edict No. 11 of 1971 did not appear in the State Lands Law in the 1973 revised edition of Laws of the Lagos State of Nigeria containing the Laws of the State in force on the 1st day of April 1973 . . . . although provisions similar to section 24 of the original Ordinance now appeared as section 25 of the State Lands Law, Cap. 130. It is not disputed that the amendment effected by Edict No. 11 of 1971, not having been incorporated in Cap. 130, ceased to be a law in force in Lagos State, on the 1st day of April, 1973.

However, an attempt was made to resurrect the amendment by the enactment of Edict No.8 of 1976, which provides as follows

“AN EDICT TO AMEND THE STATE LANDS LAW (15th October 1971)

THE MILITARY GOVERNMENT OF LAGOS STATE hereby makes this Edict as follows

25 (1) The Military Governor may enter and resume any land leased under this law whenever such land or any part thereof is required for any public purpose or whenever he deems it necessary in the public interest so to do.

(2) Whenever land which has been leased is resumed under this section the lessee shall be entitled to a proportionate reduction in his rent.

(3) The Military Governor may authorise any officers of the Government, their servants and agents, to exercise the powers reserved to him by this section.

(4) Compensation payable under this section shall be assessed and computed in accordance with the provisions of the State Lands (Compensation) Decree 1968.

(5) Resumption of Land under this section may be effected before the compensation is paid, either by actual entry on the land resumed, or by service of notice of resumption on the owner, lessee or occupier.

(6) Any land resumed under this section shall, without any further order or assurance be vested in the Military Governor of Lagos State of Nigeria.

(7) The registrar of Titles or any other person in charge of registration of land instruments or deeds affecting land shall, on application by the Military Governor remove from the relevant register the name of lessee or any other person having interest in the land in whose name the land is registered and substitute therefore the Military Governor.

(26) This Edict may be cited as the State Lands (Amendment) Edict 1976 and shall be deemed to have come into force on the 15th day of October, 1971.

MADE at Lagos this 26th day of May 1976.

CAPTAIN ADEKUNLE SHAMSIDEEN LAWAL (N.N.) Military Governor of Lagos State.”

Although made on May 26, 1976, this Edict was given retrospective effective to October 15, 1971 and, if valid, would enable the Military Governor to “enter and resume any land leased under this Law whenever such land or any part thereof is required for any public purpose or whenever he deems it necessary in the public interest so to do. ”

The conditions under which such lands may be resumed under Edict No.8 of 1976 are therefore entirely within the absolute discretion of the Military Governor and a complete change from the express and explicit provisions, containing necessary safeguards against arbitrary decisions, of section 25 of Cap.130 of the 1973 revised edition of the Laws of Lagos State, which replaced section 24 of the original Cap. 45.

The main contention of learned counsel for the appellant was that the provisions of Edict No. 8 of 1976 are unconstitutional and invalid, as the Edict amends a law which was in force in Lagos State on the 31st day of March 1958 in such a way as to contravene sub-paragraphs (a), (b) and (c) of section 31 (2) of the Constitution of the Federation. He did not, however, press the matter of contravention in relation to sub-paragraph (c). Section 31 provides in part as follows

“31 (1) No property, movable or immovable, shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except by or under the provisions of a law that

(a) requires the payment of adequate compensation therefore; and (b) gives to any person claiming such compensation a right of access,

for the determination of his interest in the property and the amount of compensation to the High Court having Jurisdiction in that part of Nigeria.

(2) Nothing in this section shall affect the operation of any law in force on the thirty-first day of March 1958, or any law made after that date that amends or replaces any such law and does not

(a) add to the kinds of property that may be taken possession of or the rights over and interests in property that may be acquired;

(b) add to purposes for which or circumstances in which such property may be taken possession of or acquired;

(c) make the conditions governing entitlement to any compensation or the amount thereof less favourable to any person owning or interested in the property;

or

(d) deprive any person of any such right as is mentioned in paragraph (b) of subsection (1) of this section . . . . . . . . . . .

(4) The provisions of this section shall apply in relation to the compulsory taking of possession of property, movable or immovable, and the compulsory acquisition of rights over and interests in such property by or on behalf of the state.”

Learned counsel for the appellant accordingly submitted that although the facts set out in the statement of claim were not disputed there were serious issues of law which were argued (and were to be argued) before the Court below and were not determined and that the learned Judge erred in law in holding that the statement of claim disclosed no cause of action. In his comparison of the relevant provisions of Cap.45 with Edict No.11 of 1971, Cap.130, and Edict No.8 of 1976, he submitted that while the original section 25 of Cap.130 empowered the Military Governor to enter and resume only a “portion” of any land sold or leased, Edict No.8 of 1976 empowered him to enter and resume the whole land. He also submitted that while the original purposes for such entry and resumption let out in Cap.45 were for “roads, railways, tramways, canals, water channels or trigonmetrical stations or any other public undertaking”, such purposes had been extended by Edict No. 11 of 1971 to include any “public purpose” defined as follows

” ‘public purpose’ means a public purpose as hereafter defined in so far as such purpose relates to any matter with respect to which the Government of Lagos State has power to make Laws, and includes

(a) for exclusive Government use or for general public use;

(b) for or in connection with sanitary improvements of any kind, including reclamation;

( c) for or in connection with the laying out of any new township or Government station or the extension or improvement of any existing township or Government station;

(d) for obtaining control over land contiguous to any port;

(e) for obtaining control over land the value of which will be enhanced by the construction of any railway, road or other public work or convenience about to be undertaken or provided by the Government;

(f) for obtaining control over land required for or in connection with planning purposes; .

(g) for obtaining control over land required for or in connection with planned rural development or settlement; and (h) for or – in connection with housing estates, economic, industrial, or agricultural development and for obtaining control over land required for or in connection With such purposes.”

He submitted further that the provisions of Edict No.8 of 1976, went even further by not only extending the purposes to include any “public purpose” but also prescribing that the Military Governor may enter and resume any land leased under the State Lands Law “whenever he deems it necessary to the public interest so to do.”

Learned counsel contended that Edict No.8 of 1976 is therefore unconstitutional and invalid, since it contravened section 31 (2) (a) and (b) of the Constitution of the Federation.

Learned counsel for the respondent, on the other hand submitted, in relation to this ground of appeal, that section 31 of the Constitution of the Federation does not apply to cases of “resumption” but to compulsory acquisition of property and that the expression “any portion of such lands” originally appearing in section 24 of Cap. 45 and section 25 of Cap. 130 should be construed to mean any portion or the whole of such lands. these submissions were so obviously without merit that learned counsel found it necessary to pursue another line of argument, that is, that section 4 of the Constitution (Basic Provisions) Decree 1975 No.32 of 1975 precludes the courts from entertaining any question as to the validity of any Decree or Edict and, in particular, the validity of Edict No.8 of 1976.

Learned counsel conceded that section 4 of Decree No.32 of 1975 is similar to section 6 of the Constitution (Suspension and Modification) Decree 1966 No.1 of 1966 and that the provisions of section 6 of Decree No.1 of 1966 were considered in the case of the Council of the University of Ibadan v. N.K. Adamolekun (1967) All NLR.213. He went on to argue that the decision in that case was nullified by the Federal Military Government (Supremacy and Enforcement of Powers) Decree, 1970, No.28 of 1970, (which provided for the supremacy of a Decree over the Constitution) and that Decree No.28 of 1970 had not been repealed by Decree No.32 of 1975. He continued that the only superior law against which an Edict may be tested is a Decree, while conceding that the Constitution is superior to an Edict.

Learned counsel went on to submit that section 31 of the Constitution of the Federation only prohibits acquisition without adequate compensation or without a right of access to the courts. In the case of Chairman, Lagos Executive Development Board v. Jamil Said and Others (1967) 1 All NLR.57, which he cited in this connection, the question of inconsistency between the Lagos Town Planning (Compensation) Act 1964 and section 31 (2) (c) of the Constitution of the Federation was raised, and was entertained by the Supreme Court which, nevertheless, held that the Act was valid as it was an alteration of the Constitution within the meaning of section 6 (b) thereof. He next referred to the case of Shell BP Petroleum Co. of Nigeria Ltd. and 5 Ors. v. M.S. Onasanya (1976) 6 S.C.89 in which it was held that, in considering whether to strike out a pleading, the court must restrict itself to the facts in the particular pleading without having the facts in the opponent’s pleading. It should have occurred to learned counsel that in this case there were sufficient facts in the appellant’s statement of claim on which serious issues of law were raised for determination. And the cases of Enwezor v. Central Bank of Nigeria (1976) 3 S. C. 45, Eboh and six Others v. Akpotu (1968 1 All NLR.220 and Okwe and others v. Enenwali and Others (1976) S.C.23 do not answer and are not even relevant to, the submissions of learned counsel for the appellant, and no more need be said about them.

To return to the chronology of events in this action it will be seen that Cap A5 was amended by Edict No.11 of 1971 which came into force on October 15, 1971. This Edict, as already pointed out, added to the purposes for which or circumstances in which land leased under section 24 of Cap A5 could be taken possession of or acquired (or entered and resumed), in contravention of section 31(2)(b) of the Constitution of the Federation.

Edict No. 11 of 1971 extended the purposes beyond “any other public undertaking” to any “public purpose” including “for exclusive Government use or for general public use” inter alia. Subsequently on November 23,1971, the respondent, acting for the Military Governor of Lagos State, notified the appellant that the Lagos State Government desired to resume occupation of the land in dispute pursuant to section 24 of the State Lands Act (CapA5), no doubt as amended by Edict No. 11 of 1971. It was thereafter on December 18, 1971, that the appellant filed this action. Ruling on the preliminary objection that the statement of claim disclosed no cause of action was delivered on February 9, 1973, in our view, even at that state, and as amply demonstrated by learned counsel for the plaintiff at the hearing of the preliminary objection, there were serious questions of law raised on the statement of claim and argued by him, concerning the interpretation of section 24(1) of CapA5 and the retrospective operation of Edict No. 11 of 1971.

However, on the coming into force on April 1, 1973 of the revised edition of the Laws of Lagos State of Nigeria, Edict No.11 of 1971 which was omitted from the revised edition, ceased by necessary implication to be in force or to have any effect whatever. And while this appeal was pending Edict No.8 of 1976 was enacted and purported to be retrospective to October 15, 1971, the date on which Edict No.11 of 1971 had come into force. Section 25(1) of the State Lands Law, Cap. 130, as amended by Edict No.8 1976 even went further than Edict No. 11 of 1971 by empowering the Military Governor to enter and resume possession of “any land” (that is the whole land and not only a portion) leased under Cap. 130 and thereby, in our view, clearly added to the rights over and interest in property that may be acquired in such land in contravention of section 31(2)(a) of the Constitution of the Federation. And there can be no doubt whatever, in our view that S25(1) of the State Lands Law Cap. 130 as amended by Edict No.8 of 1976, added to the purposes for which and the circumstances in which such land may be taken possession of or acquired, in contravention of section 31(2)(b) of the Constitution of the Federation.

Edict No.II of 1971 having ceased to have effect as a result of having been omitted from the 1973 revised edition of the Laws of the Lagos State would nevertheless have been impliedly repealed by Edict No.8 of 1976, assuming for a moment its validity, since Edict No.8 of 1976 was enacted with retrospective effect to October 15, 1971, which was also the date of commencement of Edict No. 11 of 1971. We therefore consider that we may now safely refrain from any further reference to Edict No.11 of 1971, and dispose of the questions as to the validity or otherwise of section 25(1) of Cap.130, as amended by Edict No.8 of 1976 and, also, whether or not this Court has the jurisdiction and power to make such a declaration of invalidity.

As regards the submission by learned counsel for the respondent that section 31 of the Constitution of the Federation in essence only prohibits compulsory acquisition of property without payment of adequate compensation or without provision of right of access to the courts, we make the following observations. Section 25(4) of the State Lands Law, Cap.130, as amended by Decree No.8 of 1976 provides that compensation (for the purposes of that section) shall be assessed and computed in accordance with the provisions of the State Lands (Compensation) Decree 1968, No.38 of 1968. However, that Decree provides for compensation with reference to state lands sold or leased under section 24 of the original State Lands Act Cap.A5. In the circumstances, the question of adequacy of compensation under the new section 25 introduced by Edict No.8 of 1976, could well arise for consideration. In any event, the new section 25 does not provide, as required by section 31 (1)(b) of the Constitution of the Federation, for a right of access to the courts, for the determination of a claimant’s interest in the property and the amount of compensation to which he is entitled.

Section 1 (4) of the Constitution (Basic Provisions) Decree 1975, No.32 of 1975, provides

If any law

(a) enacted before 16th January 1966 by the legislature of a Region, or having effect as if so enacted, or

(b) made after that date by the Military Governor of a Region or State, is inconsistent with any law

(i) validly made by Parliament before that date or having effect as if so made, or

(ii) made by the Federal Military Government on or after that date, the law made as mentioned in paragraph (i) or (ii) above shall prevail and the Regional or State law shall, to the extent of the inconsistency, be void. ”

Section 1(4) of Decree No.32 of 1975 is substantially the same as section 3(4) of the Constitution (Suspension and Modification) Decree 1966, No.1 of 1966.

Now, Decree No.32 of 1975 continues in force (subject to section 21(3) thereof) Decree No.1 of 1966 by virtue of the provisions of sections 14 and 15 of Decree No.32 of 1975. Then, again, section 1(2) of Decree No.1 of 1966 provides “(2) Subject to this and any other Decree, the provisions of the Constitution of the Federation which are not suspended by subsection (1) above shall have effect subject to the modifications specified in Schedule 2 of this Decree.

We therefore hold the view that the unsuspended portions of the Constitution of the Federation were incorporated by reference in Decree No.1 of 1966, and are part of that Decree and supplementary to it (but subject to alteration by Decree like any other Decree) and that Decree No.32 of 1975 continued and affirmed the unsuspended portions of the Constitution of the Federation. See also the Third Preamble to Decree No.28 of 1970 Section 31 of the Constitution of the Federation (which was validly made by Parliament before 16th January 1966) was not one of the suspended provisions. Consequently section 25(1) of Cap. 130 as amended by Edict No.8 of 1976, which was made after that date being in contravention of, and inconsistent with, section 31 of the Constitution of the Federation shall, to the extent of the inconsistency, be void, by virtue of section 1(4)(b) of Decree No.32 0f 1975.

We held, further, that the provisions of the Federal Military Government (Supremacy and Enforcement of Powers) Decree 1970, No.28 of 1970 expressly refers to section 3(4) of Decree No.1 of 1966 and makes the position abundantly clear in the Fourth Preamble, which is affirmed and declared as forming part of the Decree and reads thus

“And whereas by section 6 of the said Constitution (Suspension and Modification) Decree, 1966, no question as to the validity of any Decree or any Edict (in so far as by section 3(4) thereof of the provisions of the Edict are not inconsistent with the provisions of a Decree) shall be entertained by any court of law in Nigeria.

In other words a court can entertain a question of inconsistency between an Edict and a Decree including the unsuspended provisions of the Constitution of the Federation which are supplementary to Decree No.1 of 1966.

In the case of the Council of the University of Ibadan v. N. K. Adamolekun (1967) 1 All NLR.213 it was held by the Supreme Court that section 6 of the Decree No.1 of 1966 (which is substantially the same as section 4 of Decree No.32 of 1975) does not preclude the courts from enquiring into the question whether and Edict is void to any extent under section 3(4) thereof (which again is substantially the same as section 1(4) of Decree No.32 of 1975), but merely bars them from questioning the validity of the authority to legislate by Decree or Edict. The Supreme Court declared as follows at page 224

“Reading the Decree as a whole we are not in doubt that section 6 does not preclude the courts from enquiring into any inconsistency that may arise, but merely bars the courts from questioning the validity of the making of a Decree or an Edict on the ground that there is no valid legislative authority to make one.”

We are in no doubt whatever ourselves that these observations apply with equal force in the case of the present appeal before us. We are therefore constrained to express our firm opinion that section 25(1) of the State Lands Law, Cap. 130, as amended by the State Lands (Amendment) Edict 1976, No.8 of 1976 is inconsistent with section 31 of the Constitution of the Federation and is consequently void.

It only remains for us to repeat that the plaintiff/appellant’s statement of claim disclosed a cause of action involving the determination of serious issues of law. The relief sought by the appellant is “to set aside the decision of the learned Judge and to order that trial of the action should proceed on the merits”. Paragraph 5 of the defendant/respondent’s statement of defence reads

“The defendant will rely on all legal and equitable defences available to him in law” .

We do not wish to deprive him of the opportunity of pursuing these defences, for what they are worth.

We therefore allow this appeal and set aside the decision of the learned Judge and his order for payment of costs to the defendant and order that trial of the action should proceed on the merits, and the action is accordingly remitted to the High Court of Lagos State for further hearing by Bakare J. or if Bakare J. is not available, by another Judge of the High Court of Lagos State.

it is hereby ordered that the respondent do pay to the appellant the costs of this appeal assessed and fixed at N175.00 and costs of the hearing on the preliminary objection in the court below assessed and fixed at N42.00.

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SC.47/75