Alhaji Adio Maiyegun & Ors. V. The Governor Of Lagos State & Ors. (2010)

LawGlobal-Hub Lead Judgment Report

BODE RHODES- VIVOUR, J.C.A

This appeal is against the judgment of Hon. Justice H.A.O. Abiru of the High Court of Lagos State delivered on the 8th day of March, 2006, dismissing the appellants, originating summons.

The appellants as claimants sued the respondents as defendants on an Originating Summons seeking determination of the following questions:

(i) Whether or not the purported acquisition of the claimants land without payment of compensation by the first defendant is valid in law.

(ii) whether the purported acquisition of the claimants land by the first defendant and subsequent allotment of the land to third parties amounted to an acquisition for public purposes under the Land Use Act 1978.

(iii) whether in the absence of a valid acquisition of the claimants land by the first defendant, the claimants are not entitled to the continuous and consequent upon a determination of the questions, the appellants prayed for the following reliefs:-

(a) A declaration that the purported acquisition of the claimants family, community and village lands, more particularly described on survey plan No.OG/240/180 dated the 1st of December, 1984 drawn by Chief Akin Ogunbiyi, Licensed Surveyor, without payment of compensation by the first defendant was null, void, unconstitutional and of no legal effect.

(b)A declaration that the acquisition of the claimants said community and village lands at Maiyegun village by the first defendant and the allocation of the land by the second defendant to third parties mentioned in the publication on page 35 of the Punch Newspaper of 13th of August, 2001 was not for public purpose as contemplated by the Land Use Act 1978 and therefore null, void and unconstitutional

(c) A declaration that the claimants were entitled to the continuous and undisturbed occupation and possession of all the land described in the survey plan No OGE/240/184 dated the 1st of December, 1984 drawn by Chief Akin Ogunbiyi purportedly and unlawfully acquired by the first defendant.

(d) An order of perpetual injunction restraining all the defendants, their servants, agents, privies or whosoever derives title through or from them from interfering with the claimant’s possession of the land in dispute.

After examining affidavits, exhibits and written submissions the learned trial Judge dismissed the origination summons in a considered judgment delivered on the 8th of March, 2006.

The appeal is against the judgment.

Briefs of argument were duly filed and exchanged. The appellants brief and reply brief were deemed filed and served on the 25th of September, 2007 and 18th of March, 2008 respectively, while the respondents brief was deemed filed and served on 11th of May, 2009.

The appellants formulated three issues for determination.

1. whether the purported acquisition of the appellants land by the 1st respondent without complying with the requirements of the Law coupled with nonpayment of compensation arising there from was valid.
2. whether the purported acquisition of the appellants land by the 1st respondent and the subsequent allocation of same for private needs to individuals/3rd parties amounts to acquisition for public purpose under the Land Use Act 1978.
3. whether in the absence of a valid acquisition of the appellants land by the 1st respondent for public purpose, the appellants were not entitled to the continuous occupation and possession of the land.

Learned counsel for the respondent adopted issue No.1 formulated by the appellants.

As regards the appellants issue 2 and 3 he raised preliminary objection to their competence.

It is only natural that I hear and determine it first.

Order 10 rule 1 of the Court of Appeal Rules 2007 enjoins a party intending to rely on a preliminary objection to the hearing of the appeal to give the appellant three clear days notice before the hearing setting out the grounds of the objection.

Absence of the required notice makes the preliminary objection incompetent and discountenanced by the court in determining the appeal. See OKOLO VS UBN LTD (1998) 2 NWLR PT 539 P 618. MENAKAYA VS MENAKAYA 1994 5NWLR PT 345 P 512.

Though, a formal notice of preliminary objection would be unnecessary where the issue is jurisdiction of the court to hear and determine the appeal. See NDIGWE VS NWUDE (1999) 11 NWLR PT 626 P 314 MAJEKODUNMI VS WAPCO LTD 1992 1 NWLR PT 219 P 564. A preliminary objection can only be filed against the hearing of the appeal and not against one or more grounds or issues. That is to say Preliminary Objection are filed only to contend that the appeal is incompetent. Consequently if it succeeds that would be the end of the appeal. See NEPA VS ANGO 2001 15 NWLR PT 737 P 672.

Learned counsel for the respondent was wrong to file a preliminary objection against the competence of two issues while there is a third issue that can sustain the appeal. If the preliminary objection succeeds the appeal can still be heard on the first issue (in the appeal.)

Notwithstanding, the error I would hear and determine the preliminary objection. Finally, learned counsel for the respondent incorporated in his brief arguments on the preliminary objection. This is allowed as it obviates the necessity of filing a separate Notice of Preliminary Objection. See MAIGORO VS GARBA (1999) 10 NWLR PT 624 P 570, SANNI VS ADEMILUYI (2003) 3 NWLR PT 807 P 402 at the hearing of this appeal on the 27th of October, 2009 learned counsel for the respondent. I MR. L. Pedro SAN (The Solicitor-General and Permanent Secretary of the Lagos State Government) observed that issues 2 and 3 are not predicated on any of the grounds of appeal. In more detailed arguments in his brief learned counsel referred to: OWHONDA VS EKPECHI (2003) 17 NWLR PT 849 P 326 CHIYKE VS F.H.A.(1998) 10 NWLR PT 624 P 574 and urged us to strike out grounds 1,2,3,5 and 6 in the Notice of appeal.

Replying learned counsel for the appellant submitted that Grounds of appeal are to be construed alongside its Particulars for its full purport to be ascertained.

Reliance was place on:

MADUABUCHUKWU VS MADUABCHUKWU (2006) 10 NWLR PT 989 P 475.

He contended that an issue can be distilled from more than one ground of appeal, observing that;

Issue No.1 is distilled from Grounds Nos, 1, 2 and 4.

Issue No.2 is distilled from Grounds Nos, 5 and 6 while Issue 3 is distilled from Grounds No.3.

Concluding, he submitted that the preliminary objection is utterly unmeritorious.

An appeal is decided on the issues formulated for determination by counsel or the court, and so issues for determination must arise from the grounds of appeal. An issue that does not arise from the ground of appeal is discountenanced.

Also, an issue may arise from one or more grounds of appeal but not a multiplicity of issues formulated from the same ground of appeal. See

AGBETOBA VS THE LAGOS STATE EXECUTIVE COUNCIL AND ORS (1990) 6 SCNJ P 1.

TRADE BANK PLC VS YISI (NIG.) LTD (2006) 1 NWLR PT 960 P 106.

I am now to consider whether issues 2 and 3 are formulated from any of the Grounds of appeal.

It is clear that Issue 1 is formulated from Ground 1, 2 and 4.

Ground 5 with its Particulars.

The learned Trial Judge erred in Law by holding that different principle apply to the consideration of public purpose in the case of specific or particular parcel of land and large tract of land.

PARTICULARS

(i) The learned trial Judge accepted the judicial position that allocation of some one else’s land to another does not qualify for public purpose.

(ii)Having regard to the judicial position on the public purpose of acquisition, the learned trial judge still held that there should be a different principle to be applied to the consideration of public purpose in the case of a particular piece of land and large tract of land.

GROUND 6 WITH PARTICULARS

The learned trial Judge erred in Law by holding that it was commonsensical for the court to believe that the allocation of the appellants land by the respondents must have been in accordance with a layout.

PARTICULARS

(i) The respondents did not provide any evidence of layout.

(ii)The learned trial Judge also found that the respondents did not provide any form of evidence on layout.

(iii) It is not the duty of the court to provide evidence where none was supplied Particulars further explain the Ground of appeal; consequently they should be read, together for a better understanding of the ground.

It is so obvious to me that issue NO.2 was formulated from grounds 5 and 6 while issue NO.3 was formulated from ground 3.

The preliminary objection is accordingly overruled.

Land at Maiyegun Village in the Eti Osa Local Government area of Lagos State measuring 147 hectares formed part of land acquired by the Lagos State Government (See Gazette NO.20 in Volume 26 dated the 13th of May, 1993).

The appellants and other owners of the land acquired asked the Lagos State Government to give them part of these lands acquired for their own use. The Lagos State Government acceded to their pleas and excised portions of the land to different owners. See Gazette No.29 in Volume 27 dated the 15th of September, 1994.)

14.535 hectares of land in Maiyegun Village was excised for the appellants and they accepted it. The appellants thereafter wrote letters to the respondents asking for the excision of more land to them. They were unsuccessful.

I have examined the three issues formulated by learned counsel for the appellants for determination of this appeal, and in my view after a diligent examination of the facts above I am not satisfied with the said issues. To my mind the real issue is

”Whether the appellants have not waived their rights to challenge the acquisition of the land at Maiyegun Village”

This court has wide powers to adopt or even formulate issues that in its view would determine the real grievance in an appeal. See ADUKU VS ADJOH (1994) 5 NWLR PT 346 P 582 and so I am satisfied with the sole issue formulated, more so as it flows from the facts of the case and the grounds of appeal.

At the hearing of the appeal on the 27th of October, 2009, in amplification of their briefs learned counsel for the appellant contended that revocation was unlawful because the respondent admitted that the land had been given to third parties.

In reply learned counsel for the respondents observed that the appellants had waived their rights to complain and urged us to dismiss the appeal.

In his brief learned counsel for the appellants observed that the issues of waiver and estoppel were raised in passing when counsel for the respondents adopted his brief. He submitted that address is no substitute for evidence. Reliance was placed on:

BUHARI VS OBASANJO (2005) 13 NWLR PT 941 P1 Learned counsel for the appellants observed that the learned trial Judge was wrong to conclude that the appellants agreed with the respondents that the acquired land was earmarked for private estate developers scheme, contending that this amounts to speculation Relying on CAP. PLC VS VITAL INVESTMENTS LTD (2006) 6 NWLR PT 976 P 220 he submitted that the court should act on facts and not speculate.

Learned counsel observed that the acquisition was invalid. Relying on ERUKU V. MILITARY GOV. MIDWESTERN REGION (1974) 10 SC P.59 contended that it is wrong to acquire for public purposes land and divert it to some private needs.

In conclusion, he submitted that the public purpose for which the appellants land was purported acquired has failed and therefore the land reverts back to them.

Learned counsel for the respondent observed that waiver and estoppels are not allowed in affidavit evidence and so the facts necessary for the invocation of the principle of waiver and estoppel were stated in the respondents counter affidavit and the court was right to conclude that the appellants conduct amounted to waiver. Reference was made to FASADE & 5 ORS VS BABALOLA & ANOR (2003) 11 NWLR PT. 830 P.26. Learned counsel for the respondent observed that the parties agreed that the land is being used for Tourism Scheme, and that the use of the land is a public purpose within the provisions of Section 51 of the Land Use Act. Reference was made to ABAYE VS OFILI (1986) 1 NWLR PT 15 P 134. Finally, he submitted that it valid acquisition of land by the Government absolutely extinguishes all existing rights and interest in the land and vest same in the acquiring authority including the reversionary interests. Reliance was placed on Section 28 (7) of the Land Use Act.

ONA VS ATANDA (2000) 5 NWLR PT 656 P 244.

Contending that the appellants are not entitled to continuous occupation or reversion of the land in dispute because the right of the appellant has been extinguished by the act of revocation.

As quite rightly pointed out by the learned trial Judge this issue brings to the fore two important and very interrelated concepts of judicial adjudication, the concepts of waiver and estoppel. In ARIORI VS ELEMO (1983) 1 SC NLR P 1, ESO JSC (as he then was) explained waiver thus:

“……..Rather than define the word, it is probably appropriate just to describe its concept.

F. Pollock said, waiver is a simple and wholly untechnical concept perhaps the most powerful and flexible instrument to be found in any system of court jurisprudence. The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefits, but he either neglects to exercise his right to the benefit, but he either neglects to exercise his right to the benefit or where he has a choice of two, he decides to take one but not both The exercise has to be a voluntary act. There is little doubt that a man who is not under any legal disability should be the best Judge of his own interest. If therefore, having full knowledge of the rights, interest, profits or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up all these or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights or that he has suffered by his not having exercised his rights, he is, to put it in another way estopped from raising the issue”

And CARRIBEAN TRADING & FIDELITY CORPORATION VS NNPC (1992) 7 NWLR PT 252 P 161.

NIKI TOBI JCA (as he then was) stated thus:-

“Waiver carries some element of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend, a court of law will hold that he has waived his right.”

Waiver need not be specifically pleaded. It can be inferred or implied after examining the conduct of the party. To my mind it is sufficient if the party relying on it relies on the other parties’ abandonment of his right to complain. See The issue of waiver and estoppel were clear in the respondents counter affidavit and in written submissions of respondents counsel, more so learned counsel for the appellants were not taken by surprise as their conduct was clearly a waiver of their right to complain.

Waiver and estoppel are conclusions not allowed in affidavits. See Section 86 and 87 of the Evidence Act. Facts which justify an inference of waiver and estoppel are allowed in affidavits and in this case such facts can be found in the affidavit.

Estoppel may be described as a rule by which a party will not be allowed to plead the opposite of a fact which he formerly asserted by words and conduct. That is to say a party shall not be allowed to say one thing at one time and the opposite of it at another time. The rule of estoppel is based on equity and good conscience. It would thus be inequitable and unjust to the respondents if the appellants by their conduct made the former to believe at all times that they were interested in excision of more land to them to turn round after twelve years to try and claim compensation for land acquired by the respondents.

See:-

ONWU VS NKA (1996) 7 NWLR PT 458 P1

YOYE VS OLUBODE (1974) ANLR P 657

ODEDE VS OKUJENI (1973) ANLR P 803

SECTION 151 OF THE EVIDENCE ACT

Section 44(1) of the Constitution states that:

“No movable property or any interest in an immovable property 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 in the manner and for the purposes prescribed by a law that, among other things;

(c) requires the prompt payment of compensation therefore…”

With the above in mind how did the appellants react after the revocation of their land? The learned trial judge referred to Exhibits AM5 dated 8th of June, 1994 and AM2 dated 30th of August, 2001.

Both letters were written by the appellants to the Lagos State Government.

Exhibit AM5 reads in part:-

“Our clients have since time immemorial, been in possession of a large parcel of land measuring about 147 hectares at the said Maiyegun Village. The entire land holding was acquired by the Lagos State Government for tourism.

After a while and on considering the petition of the Maiyegun family wherein a survey plan showing the entire family land totaling 147 hectares was attached the then Lagos State.

Governor on the 13th September, 1991 published the excision of villages and Maiyegun family was granted 15.60 hectares of land out of the 147 hectares acquired…………..”

The outstanding 132 hectares of land that originally belonged to the said family were allocated to corporate bodies and/or individuals by the Lagos State Government for various tourism projects. Majority of the allotees of the said parcel of land have not developed the land significantly or at all and some of the said allotees are advertising in the Newspaper with a view to selling the land………………..”

Exhibit AM2 reads in part:

“…………Following the compulsory acquisition, the State Government allocated about 133.16 hectares to various individuals and corporate bodies ostensibly for tourism projects that never really took off, while only 14.57 hectares of the acquired land was made available to the original owners, our client, for their habitation and farming purposes.

Events stated herein under have now made our clients request for additional excision of the acquired land for the use of our client, very imperative and urgent… In the premises, we hereby appeal to your Excellency to consider further excision of the acquired land for the use of the original owners”

On the above the learned trial Judge observed that the contents of the above and also Exhibit AM3 do not amount to a challenge to the acquisition of the land in dispute.

I entirely agree with the learned trial Judge.

After the above letters were received by the Lagos State Government the appellants were invited to a series of meetings with officials of the Lagos State Government. The appellants at all times wanted additional land excised to them.

Surely this is not the conduct expected of someone who wants compensation for his land that had been acquired. This is conduct of someone who has abandoned his right to claim compensation and instead would be satisfied if he is given additional land. The appellants have exhibited a conduct of waiver. They cannot be allowed to say one: thing at one time (I want additional land) and another at another time (please pay compensation for my land acquired by you).

It is clear that after relocation of their land the appellants had a choice to either challenge the acquisition and seek compensation in line with Section 44(1) (a)of the Constitution or accept it and plead for more land to be excised to them. They settled on the latter, and that is the end of the matter.

It is well within the rights of the appellants to waive their rights to contest revocation and claim compensation.

Having thus been waived it creates estoppel against the appellants who did so or acquiesced in it.

After the finding of the court below on waiver and estoppel the learned trial judge referred to the case of ORO VS FALADE (1995) 5 NWLR PT 396 P 385 where the Supreme Court stated that:

“It is incumbent on all courts to pronounce on all issues raised by the parties and not restrict themselves to one or more of the issues which in their I opinion dispose of the case. This is only reasonable because of the obvious danger of a higher court disagreeing with the view held by the court below on the point”

This is correct, and with that in mind the learned trial Judge addressed the following:

1. To nullify the acquisition of the land on the ground that the Lagos State Government did not pay them compensation for the land.

The learned trial Judge referred to The Notice of Revocation published in the Lagos State Gazette NO.20 Volume 26 of 13th of May, 1993 which contains procedure for the payment of compensation. It reads in part:-

“9. The Lagos State Government is willing to pay compensation arising from the revocation herein on the unexhausted improvements on the land.

10. Any person claiming to have any right or interest in the said parcel of land is required within twenty one days from the date of service of this Notice to send to the Director-General, Lands and Housing Office …a statement of his interest and evidence thereof.
11. Any part of the said parcel of land in respect of which no statement is received within the period specified in this Notice is liable to be dealt with as unoccupied land.
12. Any claim to any estate, interest or right in respect of any improvements on the said parcel of land affected by this Notice shall not be entertainment after the expiration of twelve months from the date of the publication of this Notice in the Lagos State Government Official Gazette.

His Lordship examined the affidavits and found that nowhere in them did the appellants make a claim for compensation and concluded that the acquisition cannot in the circumstances be nullified for non-payment of compensation.

The procedure for payment of compensation is explained in the Gazette already alluded to.

A party seeking compensation makes his request with relevant documents within 12 months after acquisition of the land.

Revocation was published in Gazette dated the 13th of May, 1993. The appellants had twelve months thereafter to apply for compensation. Instead the appellants were pursuing having more land excised to them. At no time did they even remotely contemplate compensation. (See Reply affidavit where they stated that they never made claim for compensation.)

It was in 2005 that they took out an Originating Summons complaining of nonpayment of compensation for the first time. That is twelve years after the land was acquired the appellants seek compensation.

Since the appellants did not make any claim for compensation as laid down in Gazette No.20 Vol. 26 of 13/5/93) or ever asked for it, they are not entitled to it.

2. Nullification of the acquisition on the ground that the allocation of the acquired land by the second defendant to private individuals and companies does not and cannot come within the meaning of public purpose.

The appellants say that their acquired land was allocated to private individuals and companies.

The law is well settled that the acquisition of land by Government from a private individual or company for re allocation to another private individual or company does not qualify as public purpose within the provision of the Land Use Act.

Public purpose is defined in Section 51 of the Land Use Act Cap 15, Laws of the Federation of Nigeria 2004 to include the following:

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

(b) for use by any body corporate directly established by law or by any body corporate registered under the Companies and Allied Matters Act

(g) (sic)for obtaining control over land required for or in connection with planned urban or rural development or settlement;

(h) for obtaining control over land required for or in connection with economic, industrial or agricultural development

(i) for educational and other social services.

Where though, acquired land is allocated to private individuals and companies for development pursuant to a layout for an industrial, residential or other economic scheme of Government such as quite rightly pointed out by the learned trial Judge qualifies as public use and comes under paragraph (g) and (h) of Section 51 supra See ABAYE VS OFILI (1986) 1 NWLR PT 15 P 134 ONONUJU VS AG ANAMBRA STATE (1998) 11 NWLR PT 573 P 304.

My lords, the respondents stated in their counter affidavit that the land in dispute is to be used by the Lagos State Government for the Maiyegun Tourism Scheme in line with the Private Estate Developers Scheme of the government. The fact that the land was slated for tourism scheme was acknowledged by appellants in their letters to the respondents. The acquisition of the land was very much in order as it was done for public purpose.

The land acquired vest in the Lagos State Government absolutely since the acquisition was correctly done. The rights of previous owners no longer exist. In the final analysis this appeal fails and it is hereby dismissed with cost of N30,000 to the respondents.

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Other Citations: (2010)LCN/3542(CA)