J. B. Soboyede & Ors v. Minister Of Lands and Housing Western Nigeria (1974)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

This judgment concerns a large parcel of land situate at Mushin in the Ikeja Division of the Colony Province which was acquired in 1957 by the Government of Western Nigeria at a time when that part of the Colony Province of Lagos was within the territory of Western Nigeria. The Government of Western Nigeria, now respondents to this summons, took out an originating summons for the determination

“..of persons entitled to the compensation for the land described in the aforesaid notice and shown on PLAN MUSH 8A attached hereto. . . . .”

It appears that there was a total number of 17 claimants claiming in respect of portions of the said land, and that with respect to the first claimant E.O. Ashamu only two other claimants, the Odu Abore Family and the Alshe Family counterclaimed against him. Soon after the summons was mentioned in court, the Odu Abore Family and the Alashe Family filed in court notices of discontinuance of their own claims and transferring “the same absolutely to 1st claimant, E.O. Ashamu, to whom compensation in respect thereof should be paid by the Western Regional Government”. On the face of this, E.O. Ashamu, the first claimant, then applied by motion to the court for a “peremptory order directing the applicant, the Honourable the Ministry of Lands & Housing, to proceed within twenty-eight days from the date hereof to make an offer of compensation to the said 1st claimant for the compulsory acquisition of the said claimant’s leasehold right and interest in the areas marked plots 1 and 2 on the Claims Plan No. MUSH 8A herein on the ground that his said claim namely for loss of leasehold interest in the said area, does not conflict with the claim of any of the claimants herein.”

The application of the 1st claimant Ashamu was in due course heard by the court and an order was made thereon as follows:

“Order as prayed. The Minister of Lands and Housing to make an offer of compensation to the 1st claimant E.O. Ashamu in respect of his leasehold right and interest in the area marked plots 1 and 2 on the Claims Plan No. MUSH. 8A within 30 days.”

On the same day that the above order was made the learned trial judge also ordered the remaining claimants to file their respective statements of interest within 30 days.

Evidently with regard to the 1st claimant Ashamu, there was nothing more to litigate as the two parties claiming against him had surrendered their rights and interests to the 1st claimant, who thereafter had obtained an order of court that he should be offered an amount of compensation. It appears the records that no satisfactory offer of compensation was either made to the 1st claimant or received by him from the Minister of Lands & Housing and counsel for the 1st claimant submitted that in view of the noncompliance by the Minister with the order of court, he would prove his entitlement by evidence. The records suggest that at this stage it was agreed by those concerned that the 1st claimant might then proceed to give evidence to prove the amount of compensation to which he considered himself entitled, for the learned trial judge recorded the following observations concerning counsel:

“Chief Davies says that both sides have agreed that issue is for determination by court of the amount of compensation and that the 1st claimant should start so that the applicant would know what case to meet.”

Thereafter evidence was led concerning the amount of compensation claimed and payable and the learned trial judge eventually gave judgment deciding the amount of compensation to be paid to Ashamu.

Manifestly, this procedure has left undecided the other issues arising on the originating summons and in particular the claims of the other claimants who did not claim against Ashamu and whose claims and counter-claims were as well the subject-matter of the originating summons. After the case of Ashamu was decided the judgment given, it appears that what is left for determination on the originating summons was mentioned for hearing before Sagoe, Ag. J., on the 10th october, 1968. After a number of adjournments, Sagoe, Ag. J., on the 3rd February, 1969, began taking evidence with respect to the remaining claims. The remaining claimants apparently gave evidence before him and called witnesses. Learned counsel appearing for the respective claimants thereafter addressed the court at length concerning the respective claims of the claimants and the titles which they had put forward. In a reserved judgment, the learned trial judge decided as follows:

“I believe that the 2nd, 4th, 6th, 8th, 9th, 16th and 17th claimants were in possession of the various plots claimed by them on the 15th October, 1957, the date of the acquisition by the old Western Region Government, and I declare them entitled to compensation in respect of the plots shown against them in paragraph 4 (supra).

As the 13th claimant’s claim is disallowed in toto, he is not entitled to any compensation even in respect of Plots 4, 7, 9 and 13 (in parcel B on Ex. ‘A’) for, which claims were originally submitted by the 3rd, 5th, 7th, 10th and 11th claimants but who, for one reason or the other, did not or could not pursue their claims.”

Evidently, this judgment appreciably deals with the subject-matter of the originating summons for its purports to decide those who were, on the evidence before the court, entitled to be paid compensation in respect of aliquot portions of the land acquired in respect of which they have established their titles.

If the judgment had stopped there, there would probably have been nothing to complain about on this appeal, but then the learned trial judge proceeded in the course of his judgment to decree as follows:

“Although the summons of 22nd April, 1963 in respect of this action was limited to ascertaining the person or persons entitled to receive compensation for the land acquired, I notice that in his judgment of 12th June, 1964, in respect of Parcel A of Ex. A, the learned trial judge also considered the quantum of compensation. This being the case and the remaining portion of land, Parcel B of Ex. A being adjacent, I also award compensation at the rate of 500 Pounds per acre in respect of each of the holdings of the 2nd, 4th, 6th, 8th, 9th, 16th and 17th claimants.”

This adjudication obviously dealt not with the matter raised on the originating summons but with the amount of compensation that should be paid to successful claimants. The present appellants, apparently aggrieved at the amount awarded them, have appealed to this Court complaining that the learned trial judge had wrongly proceeded to quantify the compensation payable to them after finding that they had established their entitlement to such compensation. Before us on appeal it was demonstrated that none of the appellants gave evidence concerning the quantum of compensation payable nor was there any agreement to the effect that the learned trial judge should proceed to make the assessment which is the subject-matter of the present appeal. Learned counsel for the respondents informed us in Court that far from opposing the appeal he was in support of it for he never expected that the amount of compensation payable would be decided by the learned trial judge since no such matter was adumbrated before him.

We have come to the conclusion that the contention of counsel on all sides is well founded. As it will be seen in the case of Ashamu, there was an application followed by a general agreement of all counsel concerned that the amount of compensation payable should be assessed by the court. Hence, even though that was not an issue on the originating summons, the learned trial judge was entitled, as he did, to proceed to a determination of that issue. In the present case, there was, as learned counsel complained, no such application and/or agreement and, worse still, none of the parties led any evidence touching upon the amount of compensation either demanded by the claimants or offered by the respondents.

The learned trial judge had taken as a basis for his assessment a figure arrived at in respect of an adjacent portion of land but he had no evidence whatsoever with respect to the value of the land on which he purported to pronounce a value. We think it right to observe that this particularly risky especially in matters commenced by original summonses since the purpose of such a summons is usually stated on the application and almost always no pleadings are required or filed. In the present case, the error of such a procedure is manifest. These parties gave no evidence concerning the issue on which the judge pronounced judgment and we cannot imagine a clearer case of misdirection than that in which the judgment of the court had proceeded on an issue in respect of which evidence was singularly non-existent.

As we think that the complaints of the appellants are justified, the judgment of the learned trial judge with respect to the amount of compensation payable to the appellants cannot stand. We observe that some of the claimants who were successful in establishing their titles before the learned trial judge have not appealed against the assessment of compensation but nonetheless we propose to make an order discharging that part of the judgment which has quantified the compensation payable. Clearly, this order will affect those claimants who were apparently satisfied with the award already made but we are satisfied that whatever they might have obtained by virtue of that award had been irregularly obtained.

The appeal succeeds, therefore and it is allowed. That portion of the judgment of Sagoe, Ag. J., in Suit No. IKl83/63, quantifying the amount of compensation payable to the successful claimants in his judgment, is hereby set aside. Save and except for this, the judgment in that case is left unaffected. We made no order as to costs.

Other Citation: (1974) LCN/1782(SC)