The Attorney-general Of Bendel State & Ors V. P. L. A. Aideyan (1989)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C. 

This is a further appeal by the Defendants against the judgment of the Court of Appeal, Benin Division, which had dismissed their appeal against the judgment of Moje Bare, J., sitting in a Benin High Court.

The subject-matter of the suit is a four storey building situate on a plot lying opposite the Specialist Hospital, G.R.A., Benin City. The plaintiff, Mr. Aideyan, had bought it from the government lessee thereof, called Owono Ogbemudia Asenmota, who, with all necessary consents, assigned it to the plaintiff in 1970. The plaintiff erected a four story building on the plot.

By a notice published in the Bendel State Gazette No. 219 of the 29th of April, 1976, the Government of Bendel State purported to acquire the property for public purposes, to wit: office premises. Despite protests by the plaintiff against the acquisition, the Defendants held on to the property. At a point in time the Defendants offered to pay to the plaintiff N400,000.00 as compensation for the purported acquisition, which offer the plaintiff rejected. Then the plaintiff filed a writ. The claim was as follows:

“1. DECLARATION that the purported acquisition of all that piece or parcel of land situate along Benin/Sapele Road, Adjacent to Federal Prisons, Benin City in the Bendel State of Nigeria under the Bendel State Extraordinary Gazette No. 24 of 29th April, 1976 is unconstitutional, illegal, null, void and of no effect, on the grounds that:

(a) The purported acquisition was not for one of the purposes for which the land could be acquired.

(b) The purported re-entry and/or acquisition was not made bonafide but maliciously and for consideration other than the best interest of the Government of Bendel State.

(c) The purported acquisition and re-entry was persecutory and oppressive.

ALTERNATIVELY:

DECLARATION that the plaintiff is entitled to be paid fair and adequate compensation in accordance with the provisions of the constitution of the Federal Republic of Nigeria.

2. INJUNCTION restraining the Defendants and/or agents from using the said plaintiffs property unlawfully and against his will plus payment of N1,000,000.00 special and general damages for trespass to the property OR IN THE ALTERNATIVE.
3. ORDER of the Court that the plaintiff be paid the sum of N1,000,000.00 as compensation for the property.”

After hearing, the learned trial Judge, Moje Bare, J., in a well-considered judgment, made important findings of facts, namely:

(i) That the land upon which the plaintiff erected his house and which was purported to have been compulsorily acquired was State Land;

(ii) That the land was purportedly acquired, and so the cause of action accrued, on the 29th of April, 1976, before the Public Lands Acquisition (Miscellaneous Provisions) Decree, of 1976, was promulgated on the 20th of July, 1976;

(iii) That Public Lands Acquisition Law of Bendel State, Cap. 136, could not have been used to acquire what was already State land; and that once such a land has been leased to a person possession thereof can only be resumed by the State under section 17 of the Law or for one or the other of the limited purposes specified in section 24 of the Law (i.e. for purposes of making roads, railways, canals, tramways, and the like.

(iv) That even if such a land could be acquired compulsorily, on the evidence before him, a notice of the acquisition was not served upon the plaintiff as provided by law, before it was published in the Gazette, the Nigerian Observer Newspaper and by hand bills placed on Oba’s Palace in Benin: the registered letter dispatched to the plaintiff was returned unclaimed;

(v) That no certificate of title on the government was pleaded or tendered in the end, he concluded:

“In the present action the plaintiff is saying and I find as a fact that his property was not compulsorily acquired as required by law and that the purported acquisition is a nullity.”

On the question of damages he found that 2nd P.W. Uche Otti, an expert of Harriman Epega & Co. who testified as to the rents the plaintiff was offered for the premises was not cross-examined at all and that no contrary evidence was before the court. He therefore believed the evidence. That witness testified that through his firm of Estate Agents and Values, the plaintiff had been offered the following rents by willing tenants:

(i) N 42,000.00 per annum for the ground floor

(ii) N26,000.00 per annum for the 1st floor

(iiii) N 26,000.00 per annum for the 2nd floor

(iv) N 4,000.00 per annum for each of the 2 flats on the 3rd floor.

After carefully examining the above against the applicable laws on the points, he entered judgment for the plaintiff. He made the declaration sought, awarded the above sums as mesne profits calculated from the date of the purported acquisition. He, however, struck out the claim for damages for trespass and, upon the information that the Defendants had moved into the premises as an extension for the Specialist Hospital and were negotiating a lease thereof, he declined to make an order of injunction. He also awarded 1,500.00 as costs against the Defendants.

The Defendants appealed to the Court of Appeal, Benin Division, which Court dismissed the appeal with costs of N1,500.00. In the detailed and able lead judgment of Ikwechegh, J.C.A., which was also supported by the concurring judgment of Omo Eboh, J.C.A., he examined all the intricate points of law and of facts raised in the appeal and agreed largely with the learned trial Judge. On the question of financial award for mesne profits he said:

“The trial Judge found upon the evidence he received what the total value of the letting to the Respondent would have been and he awarded this sum as mesne profits. It’s only the appellation or terminology that is wrong here. The sum awarded on principle is correct, as it represents the amount of loss that appellants had forced upon the Respondent, or the cost that it would have cost the appellant to hire and use the Respondent’s property with his license and blessing. It is now only to designate this amount awarded as “damages for trespass”, instead of terming it mesne profits.”

Musdapher, J.C.A., in his concurring judgment, agreed with the conclusion in the lead judgment. He, however, expressed the opinion that the learned trial Judge was in error when he stated that a state land cannot be compulsorily acquired. He held that it can only be acquired through the provisions in section 17 and 24 of the State Land Law. As I have stated, the learned Justices unanimously dismissed the appeal.

The Defendants, hereinafter called the appellants, have appealed further to this Court. Arising from the grounds of appeal filed, counsel on both sides agreed upon and argued the following issues for determination, as framed by the learned Counsel for the appellants:

“(1) Whether state land can be acquired by Public Lands Acquisition Law.

(2) Whether the property de facto without technicalities of the law, was acquired.

(3) Since the plaintiff claimed a specific amount in his evidence in court and on the statement of account, could he have been properly awarded an amount higher than that specifically claimed

(4) Where a trial Judge in his judgment struck out a particular head of claim, should a Respondent who wants that claim restored, cross-appeal or even come by way of Respondent’s notice or is the scope of the power of the Court of Appeal so extensive to enable the court restore the claim without a cross-appeal

(5) Can a claim not made in the Writ of Summons be raised in the statement of claim without the Writ of Summons being amended to include that claim

(6) After the trial Judge had struck out the claim for special and general damages, could the Court of Appeal have proceeded to assess the damage on the basis of what the trial Judge held to be mesne profits but which was only claimed in the statement of claim and not in the Writ of Summons.

(7) Were the “damages” of N949,000.00 awarded to the Respondent not excessive in view of his claim for N1,500,000.00 as fair and adequate compensation for the building.”

Before I proceed to examine the above issues, I would like to make one observation. Many of the above issues have been framed in the abstract, that is without proper regard to the facts of this case. This has led to unnecessary theorizing and examination of circumstances which are far from the facts of the case. As I warned in Buriamoh v. Bamgbose (1989) 3 N.W.L.R. (Pt.109) 352 at p. 361, issues framed in the abstract may be attractive in a purely academic exercise, but are of little practical forensic value. I shall however examine them the best I can. The plaintiff shall hereinafter be referred to as the Respondent. Because of the number and weight of the issues raised, I believe it will make for clarity if I break them into different point headings and deal with them accordingly.

I must confess that I do not understand why the learned Counsel for the appellants, after framing the above issues, went back to base her arguments in her brief on the grounds of appeal. This is in error. This Court has stated a number of times that once issues for determination have been framed from the grounds of appeal filed, argument should be based not on the grounds of appeal, but on the issues for determination. Apart from these procedural errors, I must commend counsel on both sides for the able way in which they martial led their arguments both in their briefs and in oral argument.

Jurisdiction of the Court of Trial

One obvious result of the wrong approach of the learned Counsel for the appellants in going back to argue the appeal on the grounds of appeal after framing the issues for determination rears its ugly head with respect to the Grounds of Appeal. In that Ground, the appellants complain as follows:

“The learned Justices of Appeal erred in Law when they held that the trial Judge had jurisdiction to entertain Suit No. 4/263/79 filed by the Respondent despite the provisions of Public Lands Acquisition (Miscellaneous Provisions) Decree No. 33 of 1976.

PARTICULARS OF ERROR

(1) There is undisputed evidence that the Bendel State Government had actually entered the land in accordance with the provisions of the State Land Law and which at the worst amounts to notice of Intention under the Public Land Acquisition Law.

(2) The combined effect of Sections 1, 13 and 20 of Decree No. 33 of 1976 ousts the jurisdiction of the Court.”

Surprisingly, none of the issues for determination set out above takes care of, or incorporates, the complaint in this ground of appeal. Counsel will do well to remember that one result of the introduction of brief-writing in this Court and the Court of Appeal is that in the brief, issues for determination should comprehend and supercede the grounds of appeal.

They ought to arise from the grounds of appeal filed. Where, as has happened in this case, a ground of appeal filed is not covered or taken into account by the issues for determination, as framed, the appellate court may, rightly in my judgment, take the view that such a ground has been abandoned. I shall, however, consider ground 5 in this appeal for two reasons. First it raises an issue of jurisdiction. If, in fact, the court of trial had no jurisdiction to entertain the suit, it cannot acquire the jurisdiction by acquiescence or submission: the issue of jurisdiction is most fundamental. See Onyema and Ors. v. Oputa & Anor. (1987) 3 N. W. L. R. (Pt.60) 259. Secondly: that ground was fully argued by counsel on both sides.

By that ground, the learned Counsel for the appellants is saying that the High Court of Bendel State had no jurisdiction to hear and determine the suit because it was a matter cognizable by a Land Tribunal constituted under the Public Lands Acquisition (Miscellaneous Provisions) Act, No. 33 of 1976. In her submission, the substance of the claim was the quantum of compensation payable to the Respondent.

In his reply, the learned Senior Advocate for the Respondent pointed out that the main action of the Respondent was one seeking for a declaration that the acquisition was null, void and of no effect and claiming damages for trespass, the claim for mesne profits being only in the alternative. As the Act is a law which merely regulates the payment of compensation, it is not appropriate for the claim in this suit, he submitted.

For a proper appreciation of the intendment and scope of the Act (No. 33) of 1976, I shall quote in full section 13, which inter alia learned Counsel for the appellants relied upon in her argument. This section provides as follows:

“13. Notwithstanding anything to the contrary in any law Lands Tribunal shall to the exclusion of any other court have power to hear and determine

(a) Any question relating to or concerning the ownership, whether beneficial or otherwise, of any land to be compulsorily acquired by the Government for the public purposes of the Federation or of a State; and

(b) Any question relating to or concerning the amount of compensation payable in respect of such acquisition and the persons entitled to such compensation.”

Sections 1 and 20 have nothing to do with jurisdiction as such. It appears to me that section 13 clearly vests in the Land Tribunal established under Section 12 of the Act, the jurisdiction to hear and determine cases in which all questions relating to or concerning:

(i) The ownership of all lands to be compulsorily acquired by Government for public purposes, of the Federation or of a State;

(ii) the amount of compensation payable in respect of such acquisition and the person entitled to such compensation.

Clearly, the Land Tribunal was thus created as one of limited jurisdiction. Its jurisdiction took it for granted that there had been a valid act of acquisition, leaving the live issues to be questions of the quantum of the compensation for the acquisition and the person or persons entitled thereto. It has not conferred general jurisdiction of dealing with all questions relating to acquisition of such lands, which could have left it arguable whether or not dispute as to whether or not a particular land has been acquired by Government is within the jurisdiction of the Tribunal. The two subject matters of the jurisdiction, to wit: ownership of the land and the quantum of compensation payable to such owners are specifically mentioned in section 13 of the Act which deals with jurisdiction. The Tribunal is therefore one of limited jurisdiction. It must be regarded as perfectly settled, in this country at least, that when a court or tribunal is created as one of limited jurisdiction, it can only exercise judicial powers within the confines of the jurisdiction so conferred. See on this: Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 S. C. N. R. 396; Alhaji Zanner Bukar Mandara v. The Attorney-General of the Federation (1984) 4 SC. 8.

It is the foundation of the vires of the particular court or tribunal to entertain the issue in litigation in the subject matter in the suit. As my learned brother, Obaseki, J .S. C., stated at page 46 of the report in Mandara’s Case

“Jurisdiction is never conferred in obscurity. The language of the law must be clear and positive and I find this to be so in all our laws including all the previous Constitutions of this country. Jurisdiction is a power clearly visible to all the beholders of the Constitution and the law that confers it. Microscopic eyes are not required in order to unearth it.”

It is my view that as the jurisdiction conferred by section 13 of the Public Lands Acquisition Act, No. 33 of 1976 is confined to determination of issues of ownership and quantum of compensation to be paid to such owners as the Tribunal may ascertain, it has no jurisdiction to decide a case, such as this, in which the gist of the action is that the land in question is not capable of being acquired at all and that, in any event, even if it could properly be acquired, the purported acquisition was null, void and of no effect. It does not matter, in my view, that there was an alternative claim for mesne profits. Such matters as form the subject-matter of the claim are properly for determination by the regular courts of unlimited jurisdiction, in this case the High Court of Bendel State.

I therefore agree with the learned Counsel for the Respondent that objection to the jurisdiction of that court to hear and determine the matter is misconceived. The High Court of Bendel State was, therefore, properly seized of the matter in litigation and rightly exercised its judicial powers thereon. In any event, the Decree No. 33 of 1976 which came into effect on the 1st of July, 1976, and had no retroactive effect cannot properly be used for the determination of the rights of the parties with respect to an acquisition purported to have been made with effect from the 29th of April, 1976. I therefore hold that ground has no substance.

“De Facto Acquisition”

I must next dispose of the second issue, that is: whether the property had been acquired de facto, rather briefly. I do not know what learned counsel means by de facto acquisition. I say so on the usual connotation that de facto is used in contradistinction to dejure. Something exists de facto but not de jure when the factual situation of its existence does not qualify for recognition in law. I doubt whether this situation of de facto acquisition is possible at all. In Nigeria, one’s right to one’s property was an entrenched constitutional right under section 31 of the 1963 Constitution as indeed it is under section 40 of the 1979 Constitution. That right is inviolate. In the ipsissimis verbis of the Constitution itself, such a property or any right attendant thereto can only be taken possession of or compulsorily acquired by or under the provisions of a law.

Furthermore, such a law must provide for the payment of adequate compensation therefore to him and must give the owner the right of access to a High Court for the determination of his interest in the property and the amount of compensation due to him. It follows therefore that any purported acquisition which is not according to a law containing the above provisions is no acquisition at all in the eyes of the Constitution.

I therefore agree with the learned Senior Advocate for the Respondent that there can be nothing like a de facto acquisition: any such purported acquisition outside, or not in complete compliance with, the provisions of a law with the above safeguards, is completely null and void. Any entry pursuant to such a void acquisition is trespass which will sound in damages. It would be an abuse of language to call an entry by a trespasser an acquisition.

Having said so, the two main issues on the question of liability are:

(i) Whether a state land can be lawfully acquired compulsorily in Bendel State otherwise than under sections 17 and 24 of the State Land Law of Bendel State; and

(ii) Whether, assuming that it could be so acquired, the Respondent’s leasehold property, the subject of this suit was, in fact and according to law, duly acquired.

Can a State Land be Acquired Compulsorily

It is the contention of the learned counsel for the appellant that any land, including State land, can be acquired for public purpose under the Public Lands Acquisition Law, Cap. 136, Laws of Bendel State, 1976. She pointed out that “lands” have been defined in that Law as “any estate or interest in lands.” In her submission the word “any” in section 3 includes both private and public land as well as land already acquired by Government. She conceded it that the lease in question here is a building lease. She also conceded it that the size of the land in dispute in this case is far less than the 200 acres specified in section 24 of the State Land Law and that the published purpose of the acquisition is not one of those specified in that section. Yet, she submitted that because of the wide definition of “land” in section 2 of the Public Lands Acquisition Law (Cap. 136), Laws of Bendel State, 1976, to include “any Land”, State land leased to a person is included and therefore can be acquired compulsorily by Government for any public purposes defined in section 2.

In his brief and oral argument, Mr. Kehinde Sofola, S.A.N., for the Respondent submitted that the object of the Public Lands Acquisition Law is to wrest title compulsorily from the owner except where he agrees to vest it in the Government. Once Government has title to the land, there is nothing left to be compulsorily acquired, he submitted. He pointed out that a lessee of a state land is put into possession for a limited period and for a particular purpose.

In his submission it is wrong to use the general definition of “land” to mean “any land” in the statute to come to the conclusion that any land, including state land which has been leased to certain persons, can be compulsorily acquired. That approach by Musdapher, J.C.A., was in error in that it does not take into consideration the specific provisions relating to the subject and which should have governed the general definition of “land” in the statute. There are four types of leases under the State Lands Law, namely Agricultural, Building, Railway Site, and Non-European Occupation Lease. The State Lands (Leases) Regulations made clear distinctions between them, separate Regulations applying to separate types of leases. As this was admittedly a Building Lease, the learned Justice of Appeal was in error to have applied Regulation 15(b) which applies to Non-European Occupation Leases to this which was a Building Lease, he submitted.

I wish to begin my consideration of this important issue in this appeal by agreeing with the learned Counsel for the appellants that “lands” is defined in section 2 of the Public Lands Acquisition Law (Cap. 136) Laws of Bendel State, 1976, in general terms. It simply means “any estate or interest in land.” But that general word cannot be decisive of the issue. For, “lands” goes together with “acquisition”: and by accepted rules of construction, both words must be construed together.

An important aspect of my inquiry is therefore what the intendment of the two words, construed together, is. I must state straightaway that the correct procedure is not to take the word “land” in isolation, construe it, and use the construction for the ascertainment of the intendment of the legislation. In other words, the true meaning of the general word “lands” in the particular con may be confirmed, restricted or extended when read together with “acquisition”. Maxwell: On Interpretation of Statutes (12th Edn.) at p. 86 put this approach to construction succinctly thus:

“However wide in the abstract, general words and phrases are more or less elastic, or admit of restriction or extension to suit the legislation in question. The object or policy of this legislation often affords the answer to problems arising from ambiguities which it contains. For it is a canon of interpretation that all words, if they be general and not precise, are to be restricted to the fitness of the matter, that is, to be construed as particular, if the intention be particular. “

See on this: Cox v. Hakes (1890) 15 App. Cas 506; Stradling v. Morgan (1560) 1 Plowd. 199. Hence in Wands worth Board of Works v. United Telephone Co. Ltd. (1884) 13 Q.B.D. 904, the English Court of Appeal applied the principle of interpretation to ascertain the meaning of the word “street” in section 12 of the Telegraph Act 1863 to include the area of ordinary user of a portion of the ground of a street as well as the areas below and above the surface of the street, notwithstanding what the result might have been in the conveyance of a “street” at common law. Therefore, as in the case in hand the word “land” is general in meaning, that meaning may be confirmed, extended or restricted by the word “acquisition” which must be read and construed together with it.

This brings me to the question: what is the meaning of the word “acquisition”, under the Public Lands Acquisition Law (Cap. 136) Laws of Bendel State Now, the ordinary dictionary meaning of the word “acquire” is “to gain or get as one’s own by one’s own exertions or qualities”. This implies getting or gaining what was not one’s own (see The Shorter Oxford English Dictionary: Vol. 1 p. 18) See also Webster’s New Twentieth Century Dictionary (2nd Edn.) p. 18.

This is the sense in which it has been used in different aspects of law. It is in the sense that we talk of a wife’s “after acquired property” after her desertion: See Nicholson v. Drury Building Co. 7 Ch. D. 48; Hill v. Cooper (1893) 2 Q.B. 85. Similarly in relation to strict settlements: R v. Cluer, 67 L.J.Q.B. 36. So it is also in relation to patents and trade marks: See Starey v. Graham (1899) 1 Q.B. 406, p. 411. More relevantly, it is its connotation under the Acquisition of Land (Assessment of Compensation) Act of 1919: Blackpool Corporation v. Starr Estate Co. Ltd. (1922) A.C. 27. See also the opinion of the Court of Sessions in M’Corkindale v. Caledonian Railway, 31 S.C.L.R. 563.

From all these judicial opinions and more, and from the ordinary meaning of the words “to acquire”, I am of the clear view that a person cannot acquire property which is already his own. So, “lands acquisition” under the Public Lands Acquisition Law (Cap. 136) Laws of Bendel State, 1976, relates to acquisition by the Government of lands over which the Government had no title before the act of acquisition. Under section 3, it involves, in the absence of a voluntary agreement, invocation of the compulsive and expropriator power of Government to wrest title from an owner of land in accordance with law which guarantees payment of adequate compensation to the owner and right of access of such an owner to court to assert his right to the property and claims such compensation. It is therefore a contradiction in terms to say that Government can there under acquire a state land, title to which is already in the Government. The Court of Appeal, Lagos Division came to the same conclusion in L. S. D. P.C. v. Foreign Finance Corporation (1987) 1 N. W. L. R. (Part 50) 413, at p. 448. From what I have just said, it follows that although the word “lands” in section 2 is general in meaning and wide enough to include any land or any estate in land, its true meaning in the con of that legislation is influenced and cut down by the word “acquisition”.

Besides, I also agree with the learned Senior Advocate for the Respondent that the express provisions of the statute itself do not support the inference that all leasehold interests in state lands could be compulsorily acquired by Government. There is a specific provision in section 17 of the Law for forfeiture of the lease only for arrears of rent or breach of any other covenant in the lease. Forfeiture in all such cases can be ordered by a court of law, subject to the usual relief against forfeiture, if upon notice of the arrears of rent or other breaches the state lessee fails to remedy the breach or pay the arrears of rent, as the case may be. Another provision in the Law itself, in section 24, is for resumption of part of up to 4% of a state land measuring more than