Karimu Alade Obajinmi V 1. Attorney-general (W.n) 2. Ladosu Ajadi (1967)
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BRETT, J.S.C.
Karimu Made Obalinmi, who is not a party to this appeal, brought a Petition of Right against the Attorney-General of Western Nigeria claiming compensation estimated at £745 for the compulsory acquisition of his family land, Plot A24, at Ijokodo Education Zone, Ibadan. He joined Ladosu Ajadi and M. L Ojedele, the present appellant as defendants alleging that compensation of £745 for the plot had been paid to them and that they had defrauded the Government of this amount, but he did not ask for any specific remedy against them.
In Gbadamosi Lahan v. Attorney-General of the Western Region F.S.C. 41/1962, judgment delivered 19th June, 1963, this Court held that the correct procedure for claiming compensation for compulsory acquisition where liability in principle to pay compensation is not denied is not by Petition of Right but by summons under s.10 of the Public Lands Acquisition Law, but the Attorney-General did not raise the point in this case and it does not arise on the present appeal. In his Statement of Defence the Attorney- General took a neutral attitude and pleaded-
“The Minister of Lands and Housing had paid the sum of £745 as compensation for plot A24 to one M. L. Ojedele on behalf of Ladosu Ajadi and he is unable to state whether or not the payment was made to a wrong person. The petitioner is to prove that the wrong person was paid.”
He did not claim contribution of indemnity against his co-defendant, the appellant, and we have not heard argument on whether the High Court of Western Nigeria may exercise the power conferred in England by s.39 of the Supreme Court of Judicature Act, 1925 on a claim brought in accordance with Order 16 r.8 (formerly Order 16A r.12) of the Rules of the Supreme Court.
In his evidence the appellant admitted that he had collected £745 compensation on behalf of Ladosu Ajadi “for his land” and under cross-examination on behalf of the Attorney General he said “I gave indemnity to the Government for the £745” but the indemnity was not produced and it does not appear what its terms were or what land the payment referred to.
It is not recorded that counsel made any closing addresses before Somolu, J. delivered his very brief judgment. After holding that the petitioner had established his claim he went on to say-
“There will therefore be judgment for the petitioner for a sum of £745 with 40 guineas costs against the first respondent. The third respondent has agreed that he gave indemnity to the Government in respect of that sum, and now that the Government has to pay over that sum I think it is right for him to pay to the Government, that sum by way of Indemnity without further action, and I so order.”
We agree with the appellant’s counsel that the judge had no jurisdiction to make the order for indemnity and that even if he had had jurisdiction there was insufficient evidence to support such an order. Counsel for the Attorney-General relied on s.15 of the High Court Law and 0.35 r.1 of the High Court (Civil Procedure) Rules as conferring jurisdiction to make the order but neither provision helps his case. Section 15 merely empowers the Court to grant “all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by them in the cause or matter,” and it cannot be said that in this case the Attorney-General properly brought forward any claim to an indemnity. 0.35 r.1 cannot be construed as empowering the Court to make an order which has not been asked for and which the person against whom k is made has had no opportunity of resisting.
We have already said that a Petition of Right was not the correct procedure for establishing the principal claim, but it was followed without objection, and if the third party procedure to which we have referred is available it would have been open to the Attorney-General to make use of it. Alternatively he might have brought a separate action for an indemnity and applied for it to be heard together with the Petition of Right: the propriety of such a course is accepted by Goddard, L. J., in Minister of Supply v. British Thomson Houston Co. [1943) K. B. 478. He took neither course and the order in his favour cannot stand. We rest our decision, however on the lack of jurisdiction and not, as Mr. Okusaga asked us to do, on the lack of evidence since it is plain that all available evidence was not before the Court on a matter which had not been properly put in issue, and it will remain open to the Attorney-General to make any fresh claim that the facts may warrant.
The appeal is allowed and the order that the appellant shall pay £745 to the Government by way of indemnity is set aside, but without prejudice to the Attorney-General’s right to institute fresh proceedings. The appellant is awarded costs which we assess at 49 guineas.
Other Citation: (1967) LCN/1537(SC)
