Dr. Esin Anwana Esin v. Atang Edem Abasi and Ors (1963)

LawGlobal-Hub Lead Judgement Report

LORD UPJOHN [Justice of The Supreme Court of Nigeria]

This is an appeal by leave from an order made on the 24th May, 1963 of the Federal Supreme Court of Nigeria whereby certain proceedings in the High Court of Nigeria Eastern Region culminating in a judgement of Kaine J. on 30th October, 1959 were set aside as a nullity.

The problem before their Lordships is purely one of procedure and does not touch on the merits of the case. To understand the difficulties that have arisen it is necessary to set out some historical facts.

On the 17th July, 1952 the Crown served a notice in the prescribed terms under the Public Lands Acquisition Ordinance 1917 (as subsequently amended) (which will be referred to as the Lands Ordinance) to acquire just over 10 acres of land at Oron for the purpose of building a Customs House thereon. The Crown duly entered on to this land and has ever since been in occupation thereof. This land will be referred to as the Crown land.

At once each of two families, the Esin family and the Abasi family, disputed the ownership of the greater part of the Crown land and therefore the right to the compensation payable for its acquisition; it is regrettable that 12 years later this dispute has not yet been resolved. However in these circumstances on 2nd February, 1954 the Lieutenant Governor Eastern Region issued a summons under section 10 of the Lands Ordinance making representatives of these families respondents and asking for the determination of the amount of rent payable annually in respect of the Crown land. He offered to pay an annual rent of #50.

On 26th April, 1954 Mr Justice Brown made an order in these terms:-
“Order amount of rent payable annually to be #50 as offered by the Lieutenant Governor and is now payable to the persons entitled as landlords”.
In order to determine who were entitled as landlords, on the 7th July, 1954 the Esin family began proceedings in the Native Court at Oron (bearing the case number 563/54) against the Abasi family. The parties appeared without professional advisers and the plaintiffs’ action was dismissed by the Judge.

It is common ground that in so far as this action related to the Crown land the proceedings in the Native Court were misconceived and a nullity.

On the 29th January, 1955 an Assistant District Officer purporting to act under section 28 (1) (b) of the Native Courts Ordinance set aside the judgement of the Native Court and ordered a retrial in the Supreme Court of Nigeria as it was then called. Under recent Constitutional revisions that is now the High Court and it will be convenient so to describe it to avoid any confusion. The formal order embodying his decision was dated 31st January, 1955 and it stated that one of the reasons for ordering a retrial was that the land in dispute was Crown land.
One of the substantial issues in this case is whether that order for retrial was validly made.

During 1955 the action so ordered to be retried received a new serial number C/2/1955 in The High Court and pleadings were delivered. Later by leave of the Court amendments were made by addition of parties. Then the action became dormant for about four years but ultimately was heard by Kaine, J. in September and October, 1959 and he delivered judgement on 30th October.

There have since been changes of parties by death but nothing turns thereon. The plaintiffs in the action are the appellants and the defendants are the respondents before their Lordships.

It is not now in question that in the proceedings before Kaine, J. the land in dispute related to an area of rather over 19 acres divided, for the purpose of establishing title, into four plots, A, B, C, D. The Crown land was just over 19 acres of which 8 acres were within the four plots A-D and a little over 2 acres were outside this area and were not claimed by the plaintiffs in the action.

Kaine, J. held that the plaintiffs established deed to plots B, C, and D, but failed to establish title to plot A. The action was fought on the footing that the freehold of the Crown land remained in the landlords and having regard to the form of order made on 26th April, 1954 this was probably right and no objection to declaration of title thereto could properly be made, but their Lordships have some difficulty in seeing how it could have been proper to grant injunctions relating to the Crown land which is and ever since 1952 has been in the exclusive possession of the Crown; however that is not an issue before their Lordships.

The defendants appealed to the Federal Supreme Court both on the actual merits which had been the subject of the decision of Kaine. J. and also on the ground that the proceedings before him were a nullity.

The Federal Supreme Court dealt with the latter point as a preliminary issue and by a majority upheld the submission and, as already mentioned, set aside the proceeding C/2/1955 as a nullity. In these circumstances they did not hear the appeal on the merits.