A-G Bendel v. Aideyan (1986)

646
A-G., Bendel v. Aideyan
30 October 1989

1.
THE ATTORNEY-GENERAL OF BENDEL STATE

2.
PERMANENT SECRETARY, MINISTRY OF LANDS

            AND SURVEY, BENDEL STATE

3.
 GOVERNOR, BENDEL STATE

              V.

                P. L. A. AIDEYAN

SUPREME COURT OF NIGERIA

SC. 131/1986

KAYODE ESO, J.S.C. (Presided)

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.

SALIHU MODIBBO ALFA BELGORE, J.S.C.

PHILIP NNAEMEKA-AGU, J.S.C. (Read the Lead Judgment)

ABUBAKAR BASHIR WALI, J.S.C.

FRIDAY, 29TH SEPTEMBER, 1989.

APPEAL – Issues for determination – Framing of – Need to encompass grounds of appeal – Argument to be based on issues framed.

APPEAL – Trial court awarding mense profit to respondent – Appellate court amending award to read “damages for trespass” in the absence of cross-appeal or respondent’s notice – Propriety – Order 3, Rule 25, Court of Appeal Rules construed.

CONSTITUTIONAL LAW – Compulsory acquisition of property – When within the law.

CONSTITUTIONAL LAW – Right to property – Section 40, 1979 Constitution – Compulsory acquisition of property – How effected – Remedy available to owner thereof.

CONSTITUTIONAL LAW – Rights to fair hearing and property – Scope and extent under 1979 Constitution.

COURT – Duty of court to do justice and dispense with technicalities.

INTERPRETATION OF STATUTES – Expressio unius exclusio alterius – Application of.

INTERPRETATION OF STATUTES – General provisions in a statute – To be restricted by specific provisions overriding the general.

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INTERPRETATION OF STATUTES – Principles governing.

INTERPRETATION OF STATUTES – Regulations made under powers conferred by statute – Whether can be used as a guide to interpretation of the law.

INTERPRETATION OF STATUTES – Statutes encroaching on vested rights of citizens – How construed.

JURISDICTION – Concept of – How conferred – Court conferred with limited jurisdiction – Judicial powers thereof- How exercisable.

JURISDICTION – Lack of by trial court-Effect thereof- Submission to jurisdiction – Whether sufficient to cure defect thereof.

LAND LAW – Compulsory acquisition – Notice – Service of on owner of acquired property – What constitutes valid notice – Effect of non-compliance with – Sections 5 & 9, Public Lands Acquisition Law, Bendel State.

LAND LAW – Compulsory acquisition – Public Lands Acquisition Law, Bendel State 1976 – “Land acquisition” – Meaning of.

LAND LAW – Compulsory acquisition – State land – Whether capable of being compulsorily acquired – Public Lands Acquisition Law of Bendel State, 1976.

LAND LAW – Compulsory acquisition – Validity of questioned – Whether to be decided by Land Tribunal or High Court.

LAND LAW – Trespass – Meaning and scope – Liability therefor.

LAND TRIBUNAL – Jurisdiction of- Section 13, Public Lands Acquisition Act – Scope of – Whether can decide on valid acquisition of land.

PRACTICE AND PROCEDURE – Claim for damages or mesne profit – Particulars thereof not stated – Whether writ vitiated by virtue thereof.

PRACTICE AND PROCEDURE – Pleadings – Necessity to supply particulars of matters pleaded – Omission to supply particulars thereof- Effect.

PRACTICE AND PROCEDURE – Pleadings – Statement of claim – Whether supercedes writ of summons.

WORDS AND PHRASES – “De facto” “De jure” – Meanings of.

WORDS AND PHRASES – “Land acquisition” under the Public Lands Acquisition Law, Bendel State, 1976 – Meaning of.

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WORDS AND PHRASES – “Mesne profit” – Meaning of.

WORDS AND PHRASES – “Trespass to land” – Meaning of.

Issues:

1.
Whether the High Court of Bendel State had jurisdiction to entertain an action dealing with compulsory acquisition of property in view of Section 13 of the Public Lands Acquisition Act, 1976.

2.
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.

3.
Whether, in the circumstances, the respondent’s leasehold property was in fact and according to law duly acquired.

4.
Whether the Court of Appeal could validly amend the award granted the respondent by the trial court as mesne profit to read “damages for trespass” in the absence of a cross-appeal or respondent’s notice to that effect.

Facts:

By a notice published in the Bendel State Official Gazette, No.219 of 29th April 1976, the Governor of Bendel State purported to acquire the property of the respondent for public purposes to wit: office premises. The property in question was a four-storey building situate on a plot lying opposite the Specialist Hospital, G.R.A., Benin City which said plot had been sold to the respondent by a Government lessee.

The respondent subsequently sued the State Government claiming a declaration that the acquisition was null and void, an injunction to restrain the Government and its agents from trespassing on the land, and ₦1.5 million special and general damages, and/or ₦1.5 million as compensation.

At the trial, counsel to the Bendel State Government contended that the respondent’s property was acquired under the Public Lands Acquisition (Miscellaneous Provisions) Act No.33 of 1976. The Act had ousted the jurisdiction of the High Court of Bendel State to deal with matters relating to compulsory acquisition of land and the compensation payable thereon but was promulgated and came into force after the acquisition of the land in dispute. The trial Judge declared the acquisition illegal, null and void and awarded ₦842,640.00 as mesne profits in favour of the respondent.

Dissatisfied, the appellants appealed to the Court of Appeal which court dismissed the appeal with costs of ₦1,500.00. The Court of Appeal however was of the view that though the sum awarded in the lower court was correct in principle it should be correctly designated as “damages for trespass” in place of “mesne profits.”

On a further appeal to the Supreme Court, the appellants contended, inter alia, that the High Court of Bendel State lacked jurisdiction to hear and determine the suit being a matter cognizable by a Land Tribunal constituted under the Public Lands Acquisition (Miscellaneous Provisions) Act 1976, that any land including State land can be acquired for public purpose under the Public Lands Acquisition Law Cap 136 of Bendel State, 1976, and that

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the acquisition in the instant case was validly done notwithstanding that the respondent was not fixed with notice thereof. Furthermore, it was argued that as the trial court had struck out the claim for damages and made an award for mesne profits, the Court of Appeal was wrong to retain the award on the basis that it was damages for trespass, when there was no cross-appeal or respondent’s notice to that effect.

Sections 5 & 9(1) & (3) of the Public Lands Acquisition Law Bendel State, 1976 provide as follows:-

“5.
If the appropriate authority resolves that any land required for a public purpose of the Bendel State shall be compulsorily acquired, the Permanent Secretary shall give notice to the persons interested or claiming to be interested in such lands or to the persons entitled by this enactment to sell or convey the same or to such of them as shall after reasonable inquiry be known to him (which notice may be as in Form A in the Schedule or to the like effect).

9(1)
Every notice under sections 5 and 8 shall either be served personally on the persons to be served or left at their last usual place of abode or business, if any such place can after reasonable inquiry be found, and in case any such parties shall be absent from Nigeria or if such parties or their last usual place of abode or business after reasonable inquiry cannot be found, such notice shall be left with the occupier of shall lands, or if there be no such occupier shall be affixed upon some conspicuous part of such lands.

(3)
All notice served under the provisions of this Law shall be published once at least in the Bendel State Gazette, and at least two national daily newspapers circulating in the area.”

Section 13 of the Public Lands Acquisition (Miscellaneous Provisions) Act No.33 of 1976 provides:-

“13.
Notwithstanding anything to the contrary in any law a 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.”

Held (Unanimously dismissing the Appeal):

1.
On Necessity for issues for determination to encompass Grounds of Appeal –

One result of the introduction of brief-writing in the Supreme Court and the Court of Appeal is that in the brief, issues for determination should comprehend and supercede the grounds of appeal

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       They ought to arise from the grounds of appeal filed. (P.665), paras. A-B)

2.
On Attitude of court where issues framed do not encompass Grounds of Appeal –

Where, as 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 take the view that such a ground has been abandoned. (P.665, para. B)

3.
On Need for argument to be based on issues framed –

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. (P.664, paras. E-F)

4.
On jurisdiction of court –

The issue of Jurisdiction is most fundamental and crucial. Therefore. if a court of trial has no jurisdiction to entertain a suit, it cannot acquire the jurisdiction by acquiescence or submission. [Onyema Oputa (1987) 3 . (Pt.60) 259 referred to].(P. 665, para. C)

5.
On jurisdiction of Land Tribunal –

Section 13 of the Public Lands Acquisition (Miscellaneous Provisions;) Act No. 33 of 1976 vests in the Land Tribunal established under Section 12 of the Act, the jurisdiction to hear and determine cases relating to or concerning:-

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

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

        (Pp. 665-666, paras. H-A)

6.
On Jurisdiction of Land Tribunal –

The jurisdiction of the Land Tribunal is based on the presumption 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. (P.666, para. B) –

7.
On Jurisdiction of Land Tribunal –

The Land Tribunal is therefore one of limited jurisdiction and when a court or tribunal is created as one of limited jurisdiction, it

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can only exercise judicial powers within the confines of the jurisdiction so conferred. [Bronik Motors Ltd. v. Wema Bank Ltd. [1983] 1 S.C.N.L.R. 396; Mandara v Attorney-General of the Federation (1984) 4 S.C. 8 referred to]. (P.666, paras. C-D)

8.
On Jurisdiction of Land Tribunal –

As the jurisdiction conferred on the Land Tribunal 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 be properly acquired, the purported acquisition was null, void and of no effect. (P.666, paras. F-G)

9.
On Distinction between “de facto” and “de jure” –

Something exists de facto but not de jure when the factual situation of its existence does not qualify for recognition in law. (P.667, para. B)

10.
On Right to property –

The right to property in Nigeria is entrenched under Section 40 of the 1979 Constitution. That right is inviolate and such 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 to the owner and must give him 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. (P. 667, paras. B-D)

11.
On Right to property –

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. (P.667, para. D)

        Per NNAEMEKA-AGU, J.S.C. at page 667, paras. D E:

“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.”

12.
On Right to property –

Acquisition of a person’s property compulsorily is prima facie a breach of his entrenched fundamental right to his property by virtue

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of Section 31 of the 1963 Constitution and Section 40 of the 1979 Constitution). As his right to his property is therefore his fundamental right, he is entitled to make representations against such a compulsory acquisition, or claim compensation therefore, or appeal or petition against it. So he is entitled to a protection of that right to his property by exercising his right to fair hearing. It is only by exercising it that justice can be assured in the matter: This clearly implies that he can correct or controvert any ground put forward for the acquisition or raise any irregularities in the acquisition procedure. [Obikoya & Sons Ltd. v. Governor of Lagos State (1987) 1 . (Pt. 50) 385 at 403-404 followed] (P.674, paras. B-D)

13.
On Rights to fair hearing and property –

The rights to fair hearing and property are entrenched, secured, and guaranteed by the Constitution. Subject only to the interpretative jurisdictions of the courts, ultimately the Supreme Court, they cannot be changed unless the Constitution is amended. In other words, they cannot be blown away, as it were, by a side wind. [Bello v Diocesan Synod of Lagos & Ors. (1973) 1 All N.L.R. 247 at 268; Peenok Investments Ltd. v. Hotel Presidential Limited (1983) 4 N.C.L.R. 122 at 165 referred to and applied] (P.675, paras. G-H)

14.
On Interpretation of Statutes –

However wide in the abstract, general words and phrases in a statute are more or less elastic, or admit of some restriction or extension to suit the legislation in question. The object or policy of the 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 is particular. (P.668, paras. G-H)

15.
On Interpretation of Statutes –

In construing any constitution or statute, due regard must be had to the scheme of the legislation. [Obikoya v. Government of Lagos State (1987) 1 . (Pt.50) 385 at 408 followed]. (P.671. para. B)

16.
On Interpretation of expropriator) statutes –

It is an important canon of construction that provisions in any statute which are designed to protect a section of the public must be construed with that purpose in view. Since in this case, Sections 5 and 9 of the Public Lands Acquisition Law of Bendel State were designed to protect owners of land to be compulsorily acquired by Government, such owners, not the Government, deserve protection. (P.674, para. A)

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17.
On Interpretation of expropriatory statutes –

It is settled law that expropriatory statutes which encroach on a person’s proprietary rights must be construed fortissime contra preferentes, that is strictly against the acquiring authority but sympathetically in favour of the citizen whose property rights are being deprived. Consequently, as against the acquiring authority, there must be a strict adherence to the formalities prescribed for the acquisition. [Obikoya v. Governor of Lagos State (1987) 1 . (Pt.50) 385 at 398; LSDPC v Foreign Finance Corporation (1987) 1 . (Pt.50) 413; Bello v Diocesan Synod of Lagos (1973) 1 All NLR 247 at 268; Peenock Investments Ltd. v. Hotel Presidential Ltd. (1983) 4 NCLR 122 at 165 followed and applied]. (Pp.675-676, paras. H-B)

        
18.
On Whether State land can be compulsorily acquired –

Under Section 3 of the Public Lands Acquisition Law of Bendel State, land acquisition involves, in the absence of a voluntary agreement, invocation of the compulsive and expropriatory power of Government to wrest title from an owner of land in accordance with a 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 claim such compensation. It is therefore a contradiction in terms to say that Government can thereunder acquire a State land, title to which is already in the Government. [L.S.D.P.C. v. Foreign Finance Corporation (1987) 1 . (Pt.50) 413 at 448 applied]. (P.669, paras. E-F)

        
19.
On Whether State land can be compulsorily acquired –

Furthermore, by virtue of the maxim, expressio unius exclusio allerius, the specific provisions of Sections 17 and 24 of the State Land Law dealing with forfeiture and resumption of state land in favour of Government, excluded the intendment of a general power of compulsory acquisition of leases of state lands. (P.670, paras. B-C)

       
 
20.
On Whether State land can be compulsorily acquired. –

                   Per WALI, J.S.C. at page 684, paras. F-H:

“The position taken by Mustapher, J.C.A., that a state land can be compulsorily acquired for any of the purposes stated in Section 3 of the Public Lands Acquisition Law can be right if, as of now, it is proceeded upon under the Land Use Act and the Public Lands Acquisition (Miscellaneous Provisions) Act of 1976 respectively. It is therefore my view that the decision in Peenok Investments Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C. 1 cannot now be a general authority, having regard to Land Use Act, 1976 and the Public Lands Acquisition (Miscellaneous Provisions) Act 1976 that a state land granted for a building purpose and developed, can no

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longer be re-acquired particularly where such land is required for an overriding public interest as stated in section 26 of the Land Use Act, 1976. The decision in Peenok’s case should be limited to the peculiar circumstances of that case and others similar to it. It is not to be used as a general authority inhibiting the compulsory acquisition of any state land by any appropriate authority for an overriding public interest, whether such land is developed or not.”

21.
On Whether State land can be compulsorily acquired –

In the instant case, neither by the ordinary meaning and implication of the word “acquisition” nor by any rational interpretation of the provisions of the State Land Law of Bendel State, nor by the intendment and application of the State Lands (Leases) Regulations made under the law can it be held that, apart from the provisions of Sections 17 and 24 of the State Land Law (Cap. 156), leases of state lands or any estate or interest therein comprised can be compulsorily acquired by government. (P.671, paras. F-G)

22.
On Scope of the Public Lands Acquisition Law, Bendel State – 

                    
Per ESO, J.S.C. at page 683, paras. E-G:

“The tenor of the provisions of the Public Lands Acquisition Law is to acquire land that has not been previously acquired either compulsorily or by agreement by the Government. Land which has been acquired by the Government becomes State land and there should be no need for further acquisition. Such land could be forfeited if there has been breach of the covenants attached thereto and could be surrendered by the Government after acquisition, if there is reason therefore. In short, the Public Lands Acquisition Laws aims at the acquisition of “Virgin land”. By “Virgin land”, I mean land, the ownership or possession of which has not been disturbed earlier by the Government with the aim to acquire it.”

    
23.
On Effect of government actions not covered by law –

Any act of governance which is not covered under the umbrella of an enabling law is a nullity. In this case, the purported act of acquisition of the leasehold property of the respondent by the Government of Bendel State which act was not authorised by any law is a complete nullity. Their wresting possession of the said property from him in a manner not provided for by law is a tortious trespass. (Pp. 671-672, paras. H-A)

    
24.
On Service of notice of intention to acquire property –

By the provisions of Sections 5 and 9 of the Bendel State Public Lauds Acquisition Law, before someone’s property could be acquired compulsorily for public purpose:-

        
  (a)
notice of the intention so to do must have been served upon

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him or the occupier or a person interested or up on such persons as were entitled to sell or convey the land; failing both, affixed conspicuously on the property;

(b)     the notice must be by personal service or by being left at his  last  known place of abode or business;

(c)             the notice served on him must be published once in the Bendel

                 State Gazette, and at least two national daily newspapers

                 circulating in Bendel State.

         (P.673, paras. D-E)

25.
On Service of notice of intention to acquire property –

It is the intention of the law that publication of the notice served on the owner in the Gazette shall be after personal service of that or in the manner stated and much as in certain other situations publication in the Gazette constitutes constructive notice to the whole world, the combined effect of Sections 5 and 9 of the Law is that constructive notice is not enough. The law insists upon actual notice of the intention to acquire, and anything short of that amounts to non-compliance with the express provisions of the law. (P.673, paras. E-F)

26.
On Service of notice of intention to acquire property ..

The personal service of notice upon the owner or occupier of land to be acquired compulsorily is a rule of substance, a breach of which is capable of rendering nugatory both a person’s inviolable fundamental right to property and fair hearing as guaranteed by the Constitution. As no one can defend the unknown, it is only by service of a true and proper notice in the manner prescribed by law that the expectations of the owner’s entrenched constitutional rights in the matter could be guaranteed and satisfied. (P.674, para. D and G)

27.
On Service of notice of intention to acquire property –

In the instant case, the failure to serve the notice of intention to acquire the respondent’s property upon him personally and as contemplated by law before the notice so served was published in the Gazette and the Observer Newspaper amounted to a substantial non-compliance with the law, which rendered the purported acquisition a nullity and the appellants’ occupation of the land a trespass. (P.676, paras. B-C)

28.
On Trespass to land and compensation therefor –

Every unlawful and unauthorised entry to land in the possession of another is an actionable trespass for which damages should be awarded. Such damages are awarded as monetary compensation for the legal injury which a defendant has committed to the property of the plaintiff. That compensation in case of trespass is imposed by law and is compensatory. (P.679, paras. F-G)

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29.
On Mesne profits –

Mesne profit is a special type of monetary compensatory award, i.e. damages which a land owner may recover for his being forced out of or deprived of possession of his land. (P.679, para. G)

30.
On Mesne profits –

Mesne profits is a species of damages for trespass or wrongful taking or keeping occupation or possession of land otherwise rightfully in the possession of another. It is the value or compensation (or damages) for wrongful use and occupation of another’s land which would have been otherwise rightly in the owner’s possession and which is sometimes measured in terms of loss of rents by the landlord. It is technically a form of damages for trespass in a relationship that could have been that of landlord and tenant, save that there is either no agreement for a tenancy or that the formerly subsisting agreement had expired. [Osawaru v. Ezeruka (1978) 6 & 7 S.C. 135 at 139; Marine and General Assurance Co. v. Rossek (1986) 2 . (Pt.25) 751 followed]. (Pp.679-680, paras. H-B)

31.
On Effect of a writ for damages or mesne profits not specifying amount claimed –

Furthermore, a writ for damages or mesne profits is not vitiated by the fact that no specific sum is claimed. Therefore, taking the respondent’s amended statement of claim as a whole, it is clear that: he fully pleaded the basis of his claim as well as the particulars upon which the claim of mesne profit was based. It is therefore not true that a higher amount was awarded or that the particulars upon which the lower court based its award were not given. (P.678, paras. C-E)

32.
 On Necessity to supply particulars of claim in an action –

The main function of particulars in an action is to give to the other party notice of all necessary particulars in the claim or defence so as to avoid taking that other party by surprise. It may assume one of three forms, namely:

        
(a)
  better particulars of any claim, defence or other matter pleaded.

        
(b)
a statement of the nature of the case relied upon, or

        
(c)
both such particulars and statement.

At the root of it all is the fairness of the trial and the need to enable the other side prepare his case and evidence at the trial. (P.678, paras. A-B)

33.
On When party may request for further and better particulars in a claim –

If a party pleading omits or neglects to give any or such further or better particulars which ought to have been given, the other party has the right and the duty to apply for such particulars as he

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deems necessary. If he fails to apply and takes no objection to such particulars as are given in evidence, he cannot later complain on appeal. (P.678, para. C)

34.
On Supercession of statement of claim over writ of summons –

Subject to the limitation that a plaintiff will not be permitted to set up a completely different suit or claim in his statement of claim, the statement of claim supercedes the writ. [Fadahunsi v. Shell Co. (Nig.) Ltd. (1969) NMLR 304; Tajira v. North Brewery Co. (1972) NNLR 27 applied.] (P.678, para. D)

35.
On Power of the Court of Appeal to amend an award given by the trial court –

By virtue of Order 3, Rule 23 of the Court of Appeal Rules, the Court of Appeal can give any judgment and make any orders as the justice of a case may require, which the trial Judge could have made, whether or not there is an appeal by any of the parties in respect thereof. (Pp. 680-681, paras. F-A)

36.
On Power of the Court of Appeal to amend an award given by the trial court –

Order 3, Rule 23 recognises that a situation could arise as in this case, in which though a respondent has not cross-appealed or given a respondent’s notice, the appellate court can still, as and when the justice of the case so dictates, take the view that a slip by the lower court can be amended by the appellate court. It is to achieve this speedy dispensation of justice, and to do substantial justice between the parties that appellate courts have been invested with power to do things or make orders which the lower courts could have done without having to send the suits back to those lower courts. (P.681, paras. A and C)

37.
On Power of the Court of Appeal to amend an award given by the trial court –

       Per NNAEMEKA-AGU, J.S.C. at page 680, paras. B-E:

“I regard it as a hair-splitting play upon words to complain whether the amount awarded was called by the generic name “damages for trespass” or the specific name “mesne profits.” For the same reason I believe that the appellants have put the issue too highly by saying that the error, if any, committed by the Court of Appeal was that it, without a cross-appeal or a respondent’s notice, resurrected a claim which had been struck out by the court of trial and gave judgment on it. They only substituted the specific name for the award for the generic. I am of the clear view that what the Court of Appeal did in the matter was only consistent with the justice of the case and in accordance with the law and rules under which it operates. The quantum of the

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award had not been successfully challenged…. The Court of Appeal saw nothing wrong with the principle and quantum of the award. It only corrected the name from the generic name of damages to the specific name mesne profits.”

38.
On Power of the Court of Appeal to amend an award given by the trial court –

In this case, the Court of Appeal took the right course in changing the nomenclature of the award and confirming it. Any other course such as allowing the appeal on that ground alone, remitting it to the court of trial when the trial Judge had retired from service or otherwise depriving the respondent of his monetary compensation simply because it had been called a wrong name would have amounted to a failure of justice. (P.681, paras. D-E)

39.
On Technicalities and Justice –

        Per NNAEMEKA-AGU, J.S.C. at page 681, paras. E-F:

“In such procedural matters, this court has moved far away from strict adherence to mere technicalities at the expense of substantial justice. It does not now stand akimbo to watch helplessly in a situation where justice will lie prostrate and trampled down simply because mere technical rules must be upheld. It will rather lean on the side of the spirit of the rules where to do so will result in real justice to the parties in litigation. I should therefore not allow the appellants to hang on to a tenuous twig of technicality and thereby defeat substantial justice.”

Nigerian Cases Referred to in the Judgment:

Ajao v. Administrator for Ibadan City Council (1971) 1 NMLR 74.

Akande v. Kekere (1966) NNLR 113.

Bello v. Diocesan Synod of Lagos (1973) 3 S.C. 103.

Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 396.

Buraimoh v. Bamgbose (1989) 3 . (Pt.109) 352 at 361.

Chief Commissioner, Eastern Provinces v. Ononye (1944) 17 NLR 142.

Ekpan v. Uyo (1986) 3 . (Pt.26) 63

Ereka v. Military Governor, Mid-Western State (1974) 1 All NLR (Pt.2) 163.

Fadahunsi v. Shell Co. (Nig.) Ltd. (1969) NMLR 304.

Kodilinye v. Anatogu (1955) 1 NLR 231.

LSDPC v. Foreign Finance Corporation (1987) 1 . (Pt.50) 413.

Mandaru v. A-G., Federation (1984) 4 SC.8.

Marine & General Assurance Co. v. Rossek (1986) 2 . (Pt.25) 751.

Obikoya & Sons v. Governor of Lagos State (1987) 1 . (Pt.50) 385 at 403-404.

Okotie-Eboh v. Okotie-Eboh (1986) 1 S.C. 479 at 484.

Onyema. v. Oputa (1987) 3 . (Pt.60) 259.

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Osawaru v. Ezeruka (1978) 6 & 7 S.C.135 at 139.

Peenok Investments Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C. 1.

Tajira v. North Brewery Co. Ltd. (1972) NNLR 27.

Foreign Cases Referred to in the Judgment:

Aldrich v. Attorney-General (1968) 2 WLR 413 at 420-421.

Attorney-General of Ontario v. Comptroller-General of Patents (1912) A.C.583.

Blackpool Corporation v. Star Estate Co. Ltd. (1922) A.C. 27.

Britt v. Buckinghamshire County Council (1964) 1 QB 77.

Carter v. Butcher (1966) 1 Q.B. 526.

Cave v. Crew (1893) 62 L.J. Ch. 530.

Cooper v. Wandersworth Board of Works (1863) 14 CBNS 180.

Cox v Hakes (1890) 15 App. Cases 506.

De Verteuil v. Knaggs (1918) A.C. 557 at 560.

East Riding Council v. Park Estate (Bridlington) Ltd. (1957) A.C. 223.

Bramwell v. Bramwell (1942) 1 All E.R. 132 at 138.

Hill v. Cooper (1893) 2 Q.B. 85.

Jones v. Commonwealth (1963) 109 CLR475 at 483.

Hopkins v. Smethwick Local Board of Health (1890) 24 Q.B.D. 712 at 714-715.

M’Corkindale v. Caledonian Railway 31 SCLR 563.

Munich v. Godstime R.D.C. (1966) 1 WLR 427 at 435.

Neil v. Glacier Metal co. Ltd. (1965) 1 Q.B. 16 at 27.

Nicholson v. Drury Building Co. 7 Ch.D. 48.

Smith v. Queen (1878) L.R. 3 A.C. 614.

Spedding v. Fitzpatrick (1888) 38 Ch.D. 413 at 414.

Starey v. Graham (1899) 1 Q.B. 406 at 411.

Stevens v. London Borough of Bromley (1971) 2 All E.R. 331 at 338- 340.

Stevens v. London Borough of Bromley (1972) 1 All E.R. 712 at 720- 723.

Stradling v. Morgan (1560) 1 Plowd. 199.

R v. Cluer 67 L.J.Q.B. 36.

Re Bowman (1932) 2 K.B. 640.

Thorpe v. Holdsworth (1876) 3 Ch.D. 639.

Wardsworth Board of Works v. United Telephone Co. Ltd. (1884) 13 Q.B.D. 904.

Nigerian Statutes Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria 1963, S. 31.

Constitution of the Federal Republic of Nigeria 1979, S. 40.

Court of Appeal Act, 1976, S. 16.

Land Use Act, 1978.

Public Lands (Miscellaneous Provisions) Decree No. 33, 1976, Ss. 12 & 13.

Public Lands Acquisition Law (Cap. 136) Laws of Bendel State, 1976, Ss. 2, 3,4, 5, 8 & 9.

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State Lands (Leases) Regulation – Regulation 15(B)(b).

State Land Law (Cap. 156) Laws of Bendel State, Ss. 5, 17 & 24.

Foreign Statutes Referred to in the Judgment:

Acquisition of Land (Assessment of Compensation) Act 1919

Telegraph Act, 1863, S. 12.

Nigerian Rule of Court Referred to in the Judgment:

Court of Appeal Rules 1981 Order 3, Rule 23.

Foreign Rule or Court Referred to in the Judgment:

Rules of the Supreme Court (England) Order 15, Rule 16.

Books Referred to in the Judgment:

Maxwell on Interpretation of Statutes (12th Edn.) Page 86.

Oxford universal) Dictionary Illustrated (Vol.2) Page 2241.

Shorter Oxford English Dictionary (Vol. I) Page 18.

Webster’s New Twentieth Century Dictionary (2nd Edn.) Page 18.

Appeal:

This was an appeal against the decision of the Court of Appeal upholding the judgment of the Bendel State High Court, which had declared the compulsory acquisition of the respondent’s property by the appellants illegal, null and void and awarded the sum of N842,640.00 to the respondent as ‘mesne profits’. The Supreme Court unanimously dismissed the appeal and affirmed the decision of the Court of Appeal.

History of the case:

Supreme Court:

Names of Justices that sat on the Appeal: Kayode Eso, J.S.C. (Presided), Adolphus Godwin Karibi-Whyte. J.S.C., Salihu Modibbo Alfa Belgore, J.S.C., Philip Nnaemeka-Agu, J.S.C. (Read the Lead Judgment), Abubakar Bashir Wali, J.S.C. Appeal No.: SC. 131/1986

Date of Judgment: Friday, 29th September, 1989.

Names of Counsel: Mrs. Tinu Akomolafe-Wilson, Director of Litigation, Bendel State – for the Appellants.

Kehinde Sofola, S.A.N. (with him, Miss A.O. Obaseki and B. Soetan) – for the Respondent.

Court of Appeal:

Division of the Court of Appeal from which the Appeal way brought: Court of Appeal, Benin.

Names of Justices that sat on the Appeal: Omoigberai Eboh, J.C.A. (Presided), Abai Ikwechegh, J.C.A. (Read the Lead Judgment), Dahiru Musdapher, J.C.A.

Appeal No.: CA/B/81/85

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Date of Judgment: Wednesday, 12th February, 1386.

Names of Counsel: Mrs. T.A. Akomolafe-Wilson, Principal State Counsel (with him, Miss A.N. Amisha, State Counsel) – for the Appellants.

Kehinde Sofola, S.A.N. (with him, C.O. Ihensekhien) – for the Respondent.

High Court:

Name of the High Court: High Court, Benin-City.

Name of the Judge: Moje Bare, J.

Suit No.: B/263/79

Date of Judgment: Tuesday, 15th January, 1985.

Names of Counsel: C. O. Ihensekhien, Esq. (with him, E.I. Imadegbelo) – for the Plaintiff.

Mrs. C.S. Uwuigbe, State Counsel – for the Defendants.

Counsel:

Mrs. Tinu Akomolafe-Wilson, Director of Civil Litigation, Bendel State – for the Appellants.

Kehinde Sofola, S.A.N. (with him, Miss A.O. Obaseki and B. Soetan – for the Respondent.

NNAEMEKA-AGU, J.S.C. (Delivering the Lead Judgment): 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 1975. The plaintiff erected a four-storey 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 ₦400,000.00 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.

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(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 N4,500,000 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 N1,500,000 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 2 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 Valuers, the plaintiff

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had been offered the following rents by willing tenants:-

(i)
N42,000.00 per annum for the ground floor

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

(iii)
N26,000.00 per annum for the 2nd floor

(iv)
N4,500.00 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 ably 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 respondents property with his licence 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

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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 ₦949,000.00 awarded to the respondent not excessive in view of his claim for ₦1,500,000.00 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 Buraimoh 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 martialled 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 ground 5 of 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

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        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 aground 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 & 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 a 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

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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.L.R. 396; Alhaji Zanner Bukar Mandara v The Attorney-General of the Federation (1984) 4 S.C. 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 seised 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

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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 5 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 de jure. 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

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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 acquire. 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)(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 context 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 Wandsworth 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

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section 12 of the Telegraph Act of 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 construct 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 to “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 this 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 is it also in relation to patents and trade marks: See Starey v Graham (1899) 1 Q.B. 406, at p. 411. More relevantly, it is its connotation under the Acquisition of Land (Assessment of Compensation) Act of 1919: See 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 expropriatory 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 claim 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 context 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

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or other breaches the state land 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 200 acres for specified public undertakings – roads, railways, tramways, canals,, water channels or trigonometrical sections, and similar objects. It is conceded that this section is not directly relevant in this case as the land in question is only one plot and the published object of the acquisition, to wit: office block is different from those specified in section 24. But the question raised by the provisions in sections 17 and 24 is this: if it was intended that leasehold interests in state lands could be freely acquired compulsorily, would there have been any need for making those specific provisions? The maxim is expressio unius exclusio alterius: those specific provisions in sections 17 and 24 of the State Land Law exclude the intendment of a general power of compulsory acquisition of leases of state lands. See on this: Aldrich v Attorney General (1968) 2 W.L.R. 413, at p. 420-21, where the maxim was used to resolve the issue whether or not the court had power to make a declaration of legitimacy under Order 15 rule 17 (now 16) of the R.S.C. It came to the conclusion that it had not.

Finally, it is a common ground by counsel on both sides that the regulation titled “State Land (Leases) Regulations” made by the Executive Council, under powers conferred on it by section 37 of the Law, is a guide to the interpretation of the Law. They however, differ, as to the effect of its application to this particular case. The learned counsel for the appellants argues that although it does not expressly authorize compulsory acquisition of leases of state lands, never-the-less Regulation 15(B)(b) shows that compulsory acquisition thereof is possible. On the other hand, learned Senior Advocate for the respondent submitted that such an interpretation should be rejected. This is because, he contended, Regulation 15(B)(b) deals with Non-European Occupation Leases and not with Building Leases, such as the instant.

No doubt, inspite of some judicial opinions to the contrary (for which see, for example, Carter v Butcher (1966) 1 Q.B. 526; Stephens v Cockfield R.D.C. (1960) 2 Q.B. 373), in my judgment, such regulations can in appropriate cases, be resorted to as an aid to the interpretation of the statute itself.

In this respect, I believe that Sachs, J., stated the law correctly in Neil v Glacier Metal Co. Ltd. (1965) 1 Q.B. 16 where he stated at p.27:

“When interpreting the provisions of a streamlined statute (i.e. one which contains only the general principles of the subject) it is, to my mind, permissible to look at those initial regulations made under it which must have been in preparation contemporaneously and the broad potential effect of which was likely to have been the subject of parliamentary discussion during the passage of the bill.”

(parenthesis mine for explanation)

See also the decision of the English Court of Appeal in Britt v Buckinghamshire County Council (1964) 1 Q.B. 77. In the Law under construction, it is clear that the Regulations were passed by the Executive Council under powers conferred upon it by section 37 of the Law. I can take notice of the fact

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that in 1976, the Executive Council of Bendel State had legislative power in the State. So, it was the same body that passed the Law that also passed the Regulations, obviously contemporaneously. The Regulation can therefore be resorted to for the ascertainment of the legislative intention in the Law which it was designed to complement. So, Musdapher, J.C.A., was right in resorting to the Regulations as an aid to the construction of the Law.

        But it is in the application of the Regulations that, with greatest respects, I am of the view that the learned Justice of the Court of Appeal committed a slip. Now it is, I believe, correct to say that when construing any constitution or other statute – Act, Decree, Law, Edict, Regulation or Rules due regard must be had to the scheme of the legislation. See on this: Attorney-General of Ontario v Comptroller-General of Patents (1912) A.C. 571; also Obikoya & Sons Ltd v The Governor of Lagos State & Anor (1987) 1 N.W.L.R. (Part 50) 385, at p. 408. A close view of the Regulations shows that they deal with four different leases of Slate lands, namely: Agricultural Leases, Building Lease, Railway Site Lease, and Non-European Occupation Lease, each with its appropriate point headings. Regulations 1 and 2 are general to the four types of leases, Regulations 3-6 deal with Agricultural p. Leases; Regulations 7-9 deal with Building Lease; 10-12 with Railway Site Lease; and 13-16 with Non-European Occupation Lease. It is under the last category of leases that it is provided in Regulation 15 B (b) as follows:

“Except as provided by section 17 of the State Lands Law, the Governor shall not during the term of the lease recover possession of the land demised otherwise than by voluntary surrender of the lease, or by proceedings under the Public Lands Acquisition Law.”

It was the last phrase “or by proceedings under the Public Lands Acquisition Law” that the learned Justice of the Court of Appeal relied upon – and this was reiterated and relied upon by the learned Counsel for the appellant in this Court – for his conclusion that a state land demised under a lease can be acquired compulsorily by Government. I see no authority or precedent for transportation of the provisions with respect to Non-European Occupation Leases to a Building Lease such as this. It is not the law I am therefore satisfied that neither by ordinary meaning and implication of the word “acquisition” nor by any rational interpretation of the provisions of the State Land Law of Bendel State, nor by the intendment and application of the State Lands (Leases) Regulations made under the Law can it be held that, apart from the provisions of sections 17 and 24 of the State Lands Law (Cap. 156), leases of state lands or any estate or interest therein composed can be compulsorily acquired by government. Our founding fathers and our powers-that – be have opted for the rule of law in preference for the rule of force and absolute totalitarianism. Under the system, we have elected that the otherwise omnipotent power of Government must be exercised under the authority of law. Any act of governance which is not covered under the umbrella of an enabling law is a nullity. In the instant case, the purported act of acquisition of the leasehold property of the respondent by the Government of Bendel State which act was not authorized by any law is a complete nullity. Their wresting possession of the said property from him in a manner not provided

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for by law is a tortious trespass.

Was the Acquisition, If Permissible, Done According to Law?

Then to the second major issue: assuming, but not agreeing, that the property in question could have been acquired compulsorily, was it acquired as provided by law? The gist of the complaint of the respondent in this respect in the court of trial was that no personal or any due notice as prescribed by law was served on him before the appellants wrested the possession of his property from him. The case of the appellants is that they sent a registered letter to him and then published notices of the acquisition in the Observer Newspaper and the Government Gazette. Nothing was served before the publications. The respondent denied receipt of the letter or seeing any notice of the acquisition. The learned trial Judge found that the registered letter was returned unclaimed and that no certificate of title was tendered. The courts below held that there was no proper notice of the acquisition according to law.

Before us, the learned Counsel for the appellants has submitted:

(i)
that formalities of service of notice should not be allowed to defeat justice and public good;

(ii)
that the decisive factor should be whether the acquisition was for a public purpose;

(iii)
that publication in the Gazette was notice to the whole world;

(iv)
that issue should be made of service of notice only where a claimant is refused compensation on the ground that his claim is statute-barred; and

(v)
that service of notice is a mere technicality and that there is now, relying on English authorities, a movement away from using such technicalities to defeat public good.

She cited the case of Munich v Godstime R.D.C. (1966) 1 W.L.R. 427, at p.435 where Denning, L.J. stated that the courts now move away from the rigid adherence to technicalities as advocated and applied in East Riding Council v Perk Estate (Bridlington) Ltd. (1957) A.C. 223, where an insistence on compliance will cause a defeat of public good. The respondent has not been prejudiced by the mere fact that notice of the intention to acquire his property has not been personally served on him: In re Bowman (1932) 2 K.B. 621. She therefore sought to distinguish the case of Alhaji Bello v Diocesan Synod of Lagos & Ors. (1973) 3 S.C. 103.

In sum, learned Senior Advocate for the respondent submitted that on the facts summarized by me above, the respondent were not served with any notice of acquisition. This made the alleged acquisition invalid, null and void.

The first question I must ask myself on this issue is this: was a proper notice of intention to acquire the respondent’s developed property served on him. The answer to the question turns on the intention of the provisions in sections 5 and 9 of the Public Lands Acquisition Law (Cap. 136) Laws of the Bendel State, 1976 as applied to the facts of this case. They provide as follows:

“5.
If the appropriate authority resolved that any lands required for a public purpose of the Bendel State shall be compulsorily acquired,

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the Permanent Secretary shall give notice to the persons interested or claiming to be interested in such lands or to the persons entitled by this enactment to sell or convey the same or to such of them as shall after reasonable inquiry be known to him (which notice may be as in Form A in the Schedule or to the like effect).

9(1)
Every notice under sections 5 and 8 shall either be served personally on the persons to be served or left at their last usual place of abode or business, if any such place can after reasonable inquiry be found, and in case any such parties shall be absent from Nigeria or if such parties or their last usual place of abode or business after reasonable inquiry cannot be found, such notice shall be left with the occupier of such lands, or if there be no such occupier shall be affixed upon some conspicuous part of such lands.

                    …………………………………………………………………………………………………………..

9(3)
All notice served under the provisions of this Law shall be published once at least in the Bendel State Gazette, and at least two national daily newspapers circulating in the area.

It appears to me that those two sections provide:

(i)
that before the respondent’s property could be acquired compulsorily for public purpose, notice of the intention so to do must have been served upon him or the occupier or a person interested or upon such persons as were entitled to sell or convey the land, failing both affixed conspicuously on the property;

(ii)
that the notice must be by personal service or by being left at his last known place of abode or business;

(iii)
the notices served on him must be published once in the Bendel State Gazette, and at least two national daily newspapers circulating in Bendel State.

It is therefore the clear intention of the law that publication of the notice served on him in the Gazette shall be after personal service of that or in the manner stated. Much as in certain other situations publication in the Gazette constitutes constructive notice to the whole world, the combined effect of sections 5 and 9 of the Bendel State Public Lands Acquisition law set out above is that constructive notice is not enough. The law insists upon actual notice of the intention to acquire. So, anything short of that amounts to non-compliance with the express provisions of the law. I therefore, find no difficulty in agreeing with the two lower courts that, even if I assume that the property in dispute could have been validly acquired compulsorily by the appellants, it was, in any event, not acquired according to law.

The other submissions of learned Counsel for the appellants raise issues of fundamental nature. She has submitted that no issue should be made of the mode of service in so far as the acquisition was for public purposes because that would cause a defeat of justice and public good. In any event it is a mere technicality and there is a movement away there from in Britain, she submitted.

In my judgment, these submissions, particularly the last, seem to lose sight of the fundamental intention and reason for the service of the notice as

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well as the historical and systemic differences between the concepts of fair hearing in Nigeria and in Britain. In the first place, it is an important canon of construction that provisions in any statute which were designed to protect a section of the public must be construed with that purpose in view. Sections 5 and 9 of the Public lands Acquisition Law of Bendel State were designed to protect owners of land to be compulsorily acquired by Government, and not the other way round. Such owners, not the government, deserve protection. It must also tie borne in mind that acquiring a person’s property compulsorily is prima facie a breach of his entrenched fundamental right to his property. (See section 31 of the 1963 Constitution and section 40 of the 1979 Constitution). As his right to his property is therefore, his fundamental right, he is entitled to make representations against such a compulsory acquisition, or claim compensation therefor, or appeal or petition against it. So he is entitled to a protection of that right to his property by exercising his right to fair hearing. It is only by exercising it that justice can be assured in the matter: this clearly implies that he can correct or controvert any ground put forward for the acquisition or raise any irregularities in the acquisition procedure. See on this De Verteuil v Knaggs (1918) A.C. 557, at p. 560; Jones v The Commonwealth (1963) 109 C.L.R. 475, at 483; Obikoya & Sons Ltd. v Governor of Lagos State (1987) 1 N.W.L.R. (Pt.50) 385, at pp 403-404. As no one can defend the unknown, it is only by service of a true and proper notice in the manner prescribed by law that the expectations of the owner’s entrenched constitutional rights in the matter could be guaranteed and satisfied. Our law reports are replete with cases in which some of such compulsory acquisitions “for public purposes” turned out to be mere bogus smokescreens for malefaction. Reference may be made to the following cases, namely:

Chief Commissioner, Eastern Provinces v S.N. Ononye (1944) 17 N.L.R. 142.

Chief D.O. Ereka v Military Governor of Mid-Western State of Nigeria & Ors.       (1974) 1 ALL N.L.R. (Pt.2) 163.

Akande v Kelere (1966) N.N.L.R. 113.

Kodilinye v Anatogu (1955) 1 W.L.R. 231 and

Ajao & Anor v Sole Administrator for Ibadan City Council (1971) 1 N.M.L.R.       74.

From the result of these cases it appears to me that the submission of the learned Counsel for the appellants that personal service of notice upon the owner or occupier of land to be acquired compulsorily is a mere technicality must be rejected as a misconception. Rather, it is a rule of substance, a breach of which is capable of rendering nugatory both a person’s inviolable fundamental right to his property and his cherished fundamental right to fair hearing, each of which was guaranteed by the 1963 Constitution under which the purported acquisition was done. A situation in which an owner of property, such as the respondent, is expected to leaf through the pages of every newspaper and the official Gazette to know when his plot of land on which he had invested several hundreds of thousands of Naira to develop has been compulsorily acquired by the same Government which had granted the lease of the plot to him must be seen as alien to the letters and spirit of the system

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of rule of law which we have opted to operate.

It is interesting to note that before the opinion of Denning, L.J. in Munich v Godstime R.D.C. (supra) which the learned Counsel for the appellants is relying upon was expressed, several eases decided in that same jurisdiction were in accord with the view I have expressed above. Reference may be made to the following, among others:

Cooper v Wandersworth Board of Works (1863) 14 C.B.N.S. 180.

Hopkins v Smethwick Local Board of Health (1890) 24 Q.B.D. 712, at pp.714-715.

Smith v The Queen (1878) L.R. 3 App. Cas. 614 (P.C.)

East Riding County Council v Park Estate (Bridlington) Ltd. (1957)A.C. 223.

This brings me to the contention of the learned Counsel for the appellants that the law has now changed (in England); that the courts no longer act on technicalities; and that we should adopt that trend and pronounce the notice served on the respondent in this cases as valid in the in interest of public good.

My first observation is that the opinion of Denning, L.J., in Munich’s Case (supra) does not go as far as learned Counsel for the appellants has put it. As explained in two subsequent cases, namely:

Stevens v London Borough of Bromley (1972) 1 All E.R. 712, at pp. 720, 721 and 723; and

Stevens v London Borough of Bromley (1971) 2 All E.R. 331, at pp. 338-340,

those statements of Denning, L. J., were merely obiter. Even the other eminent Justices who participated in the case, namely Danckwerts and Salmon, L.J.J. did not go so far. Moreover, the decision in question, even as far as it goes, relates to whether or not caravan dwellers were occupiers who must be served with notices. It never decided, as the submission of the learned Counsel for the appellants postulates, that there can be a valid compulsory acquisition of land or interest in land without proper service of a notice on the owner or occupier. The opinion of Denning, L.J. in Munick’s Case (supra) has strikingly not, as far as I can find, been followed in any subsequent case.

Assuming, but not agreeing, that there has been a change of the law in England, that is no authority for saying that the law on the point in Nigeria must change. The two systems are different. Fair hearing and right to property in Britain are developments of the common law. They are, therefore, like any common law rule, more amenable to mutation and change by court decisions. In Nigeria, they are entrenched, secured, and guaranteed by the Constitution. Subject only to the interpretative jurisdictions of the courts, ultimately the Supreme Court, they cannot be changed unless the Constitution is amended. In other words, they cannot be blown away, as it were, by a side wind. I therefore, reject the submission that the law as to service of notice on an owner or occupier of land in Britain before its acquisition has changed; and that, assuming that there has been such a change it can affect the law in Nigeria. I believe that the law is still as stated in the case of Bello v Diocesan Synod of Lagos & Ors. (1973) 1 All N.L.R. (Pt.l) 247, at p. 268; and reiterated in Peenok Investments Ltd. v Hotel Presidential Limited

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(1983) 4 N.C.L.R. 122, atp. 165. It is that such expropriatory statutes which encroach on a person’s proprietary rights must be construed fortissime contra preferentes, that is strictly against the acquiring authority but sympathetically in favour of the citizen whose property rights are being deprived. As against the acquiring authority there must be strict adherence to formalities prescribed for the acquisition. See on this: Obikoya &Sons Ltd. v Governor of Lagos State (1987) 1 N.W.L.R. (Pt.50) 385, at p. 398; Lagos State Development & Property Corporation & Ors. v Foreign Finance Corp. (1987) 1 N.W.L.R. (Pt.50) 413; also Bello’s Case (supra). In the instant case, I am of the view that failure to serve the notice of intention to acquire the respondent’s property upon him personally and as contemplated by law before the notice so served was published in the Gazette and the Observer Newspaper amounts to a substantial non-compliance with the law. This renders the purported acquisition a nullity, and the appellants’ occupation of the land a trespass.

Damages

The several issues which have been raised in relation to damages could best be appreciated from the following factual back ground. After the respondent’s claim as set out above, he filed and duly amended his pleading. The case went to court on his amended statement of claim dated the 29th day of February, 1984, which was deemed properly filed by order of court dated 26th March, 1984. Because of its relevance to the issues on damages, I shall set out the relevant part of the relief claimed therein. It runs thus –

        ₦1,500,000.00 special and general damages in Trespass.

Particulars of Special Damages

Ground Floor

(a)
5050 sq. ft., or 503 sq. m. & ₦85.00 per sq. metre

  • ₦42,800.00 x 8 years – ₦342,400.00

First and Second Floors

(b)
5050 sq. ft. or 503 sq. m. at ₦5.30 per sq. ft.

  • 53.535 x 8 years  –   ₦428,240.00

Third Floor

(c)
2 self contained 3 bed Room Flats at ₦4,500 per Flat

  • ₦9,000.00 p.a. x 8 years – ₦72,000.00

        a + (b) + C   –                                                                      ₦ 842,640.00

  General damages                                                                       ₦657,360.00

                                                                                                                            ₦1,500,000.00

The plaintiff shall found and rely on various valuation and computation documents in proof of the special damages particularised above at the trial of this action.

ALTERNATIVELY:

4.
Mesne profits on the property from the date of the purported acquisition to date of judgment.”

In his judgment, the learned trial Judge struck out the claim for damages for trespass and, based on commercial rents offered by willing tenants in open market as established by the expert evidence, awarded to the respondent the sum of ₦842,640.00 as mesne profit for eight years. This was made up as follows:

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            For the ground floor ₦42,800.00 x 8              –                  ₦342,400.00

            For the 1st Floor ₦26,765.00 x 8                    –                   ₦214,120.00

            For the 2nd Floor ₦26,765.00 x 8                   –                   ₦214,120.00

            For the 3rd Floor (2 flats) ₦4,500.00 x 2 x 8  –                      ₦72,000.00

            Total                                                                 –                    ₦842,640.00

On appeal to the Court of Appeal, Benin Division, that Court unanimously dismissed the Appeal, in spite of the dissenting opinion of Musdapher, J.C. A., on the issue as to whether a lease of state land could be compulsorily acquired. Ikwechegh, J.C.A., in his lead judgment to which Omo Eboh, J.C.A., and, subject to the reservation already adverted to, Musdapher, J.C.A., concurred, encapsulated the reasoning of that Court on damages thus:

“In this appeal there is evidence which the trial Judge accepted that the respondent had by his agents entered into arrangements for the letting of his property to interested establishments, and P.W. 2 gave evidence as to the amount of rents that was forthcoming, and he was not challenged on this point. 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 sum that it would have cost the appellant to hire and use the respondent’s property with his licence and blessing. It is now only to designate this amount awarded as “damages for trespass”, instead of terming it “mesne profits”. See, American Braided Wire Coy. vs. Thomson (1890) 4 Ch.D. 274 (C. A.).”

(Italics mine for emphasis)

It is against these findings and opinions that the appellants have raised issues numbered (3), (4), (5), (6) and (7) above.

Before I consider those issues, I should deal briefly with one point which was not directly raised as an issue but which has arisen in argument and has a bearing on the quantum of the award. The learned Counsel for the appellants is attacking an award of ₦949,000.00. He referred to page 291 lines 1-6, of the judgment. In truth the figures stated therein amount to ₦842,640.00 and not ₦949,000.00 as counsel for the appellants put forward. This is a matter of simple arithmetic. The learned Senior Advocate for the respondent has, in his submission, rightly I hold, not supported the erroneous higher figure. The question which falls for my decision is, therefore, whether he is entitled to the award of ₦842,640.00.

The third issue is whether the courts below were right to have awarded to the respondent an amount higher than the amount claimed. Issue number five raises the old question of the relationship between a claim endorsed on the writ and its amendment in a statement of claim or an amendment thereof. From the claim in the amended statement of claim, it cannot rightly be stated that the sum of ₦842,640.00 was higher than the sum of ₦1,500,000.00 claimed. It is true that no particulars of the mesne profits

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claimed were given, and none was applied for. But those particulars had been given in the claim for damages and it became clear from the unchallenged and uncontradicted evidence of P.W.2 that the same particulars were being relied upon as those already given in relation to damages for trespass. I must note that the main function of particulars is to give to the other party notice of all necessary particulars in the claim or defence so as to avoid taking that other party by surprise. It may assume one of three forms, namely: better particulars of any claim, defence or other matter pleaded; (ii) a statement of the nature of the case relied upon; or (iii) both such particulars and statement the root of it all is the fairness of the trial in the need to enable the other side prepare his case and evidence at the trial: see Thorpe v Holdsworth (1876) 3 Ch. D. 639; Spedding v Fitzpatrick (1888) 38 Ch. D. 413, at p. 414. If a party pleading omits or neglects to give any or such further C or better particulars which ought to have been given, the other party has the right and the duty to apply for such particulars as he deems necessary. If he fails to apply and takes no objection to such particulars as are given in evidence, he cannot later complain on appeal. In the instant case, taking the respondent’s amended statement of claim as a whole, it cannot be denied that he fully pleaded the bases of his claim as well as the particulars upon which the claim of mesne profit was based. It is now settled beyond dispute that subject to the limitation that a plaintiff will not be permitted to set up a completely different suit or claim in his statement of claim (for which, see Cave v Crew (1893) 62 L.J. Ch. 530; also Ekpan v Uyo (1986) 3 N.W.L.R.(Pt.26) 63, the statement of claim supercedes the writ. See J. O. Fadahunsi v Shell Co. of Nigeria Ltd. (1969) N.M.L.R. 304; also Mohammed Tajira v North Brewery Co. Ltd. (1972) N.N.L.R. 27. In Fadahunsi’s Case, which in my respectful opinion was rightly decided by Aguda, J., (as he then was), it was held that a writ for damages is not vitiated by the fact that no specific sum is claimed. So it is with a claim for mesne profits. It is, therefore, not true that a higher amount was awarded or that the particulars upon which the court below based its award were not given. I must, therefore, resolve those two issues against the appellants.

I shall new consider the other split issues which the appellants have raised with respect to damages. In sum, learned Counsel on their behalf has submitted:

(i)
that as the learned trial Judge struck out the claim for damages and made an award for mesne profits, the Court of Appeal was wrong to have retained the award on the basis that it was mesne profits when there was no cross-appeal or even a respondent’s notice; and

(ii)
that the Court of Appeal was wrong to have invoked the powers conferred upon it under Order 3 rule 23 and section 16 of the Court of Appeal Act for confirming the award as mesne profits.

In reply, the learned Counsel for the respondent submitted that on the true meaning of mesne profits, it is not strictly different from damages for trespass on the facts of this case. As the trial Court found the possession of the property in dispute by the appellants to be wrongful because the purported acquisition was invalid, the Court of Appeal was right to have proceeded

[1989] 4 .
A-G., Bendel v. Aideyan
(Nnaemeka-Agu, J.S.C. )
679

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to award damages against the appellants. The Court made it clear that it could not send the case back to the court of trial because the learned trial Judge, Moje Bare, J., had retired from the Bendel State Judicial Service and so, even if it was a case in which that Court could have sent the matter back for assessment of damages, it could not do so: it had to invoke its powers and assess the amount that was fair in the circumstances. He further submitted that the Court of Appeal had power to do what they did having due regard to the provisions of section 16 of the Court of Appeal Act of 1976 and Order 3 rule 23 of the Court of Appeal Rules. In any event the objection of the appellants to the award has come in too late.

I wish to begin my consideration of these submissions by making an important observation. Having settled the issues of the disparity between an award of ₦842,640.00 based on the particulars fully given by the respondent and proved in evidence and ₦949,000.00 that has been attacked and settled that the award was not in excess of the claim, all that the appellants’ argument amounts to is that the Court of Appeal was wrong to have held that the amount awarded, which has been shown to be correct as undisputed, should not have been called mesne profits instead of damages for trespass. The p reason for this stance is that the court of trial had called it damages for trespass and the Court of Appeal mesne profits. The real quarrel is therefore, limited to what the undisputed and unchallenged award should, have been called. Put in another way, the gist of the appellants’ contention is that the case should have been remitted to the High Court not for reassessment of damages which have not been shown to have been wrongly quantified, but for the award to be properly christened “mesne profits” instead of “damages for trespass”.

I must state that the whole argument has clearly lost sight of the true meaning of mesne profits and the relationship between “mesne profits” and “damages for trespass”. Now the ordinary dictionary meaning of “trespass” is “any actionable wrong committed against the person or property of another” (See The Oxford Universal Dictionary Illustrated: Vol. 2 Page 2241. To a lawyer, trespass to land is an actionable wrong to .and (or realty) which is in the possession of another. Every unlawful and unauthorized entry to land in the possession of another is actionable trespass for which damages should be awarded. Such damages are awarded as monetary compensation for the legal injury which a defendant has committed to the property of the plaintiff. That compensation in case of trespass is imposed by law and is compensatory. On the other hand, mesne profit is a special type of monetary compensatory award i.e. damages which a land owner may recover for his being forced out of or deprived of possession of his land. So mesne profits is a special form of damages. Goddard, L.J., said much the same thing in Bramwell v Br…

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