Lagos City Council V. Emmanuel Ayodeji Ajayi (1970)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

The Lagos City Council had appealed against an assessment of monetary compensaiton made by the Lagos High Court (Omololu, J.) pursuant to an originating summons taken out in virtue of the provisions of the Lagos Local Government Act.

The Lagos City Council, now appellant, were the applicants in the court below and Emmanuel Ayodeji Ajayi was the claimant. The property concerned was No. 23 Catholic Mission Street, Lagos.

It belonged to the claimant but had been compulsorily acquired by the appellants pursuant to their powers under the Lagos Local Government Act. As the parties could not agree on the amount of compensation to be paid to the claimant the appellants took out the summons asking for a determination by the court of the following question, that is to say:-

“The amount of compensation payable in respect of that house with landed property situate at and known as No. 23 Catholic Mission Street, Lagos and covered by a deed of conveyance dated 24th day of June, 1953 and registered under title No. LO 2339 of the Lands Registry Lagos and which was acquired by the Lagos City Council under and by virtue of the Lagos Local Government Act 1959.”

The parties gave evidence at the hearing of the summons and called witnesses and at the end of the hearing the learned trial judge accepted substantially the valuation given in evidence by the claimant’s valuer and decreed that compensation in the amount of 13,640pounds be paid by the appellants to the claimant as a fair value of the property at No. 23 Catholic Mission Street, Lagos.

The judge also ordered that the claimant be paid all the rental profits due on the property at the rate of 950pounds per annum from the date of acquisition that is the 17th June, 1964 to the date when the assessed compensation is paid to the claimant.
The Lagos City Council had appealed against this decision complaining of mis-direction by the learned trial judge in arriving at the conclusions on which he had based his decision. After receiving the notice of appeal the claimant, or rather counsel on his behalf, filed a notice pursuant to the provisions of the Supreme Court Rules, Order 7, rule 13 (1) requesting “that the decision of the court below dated the 6th day of September, 1965, should be varied” and averring in effect that if the learned trial judge who heard the summons had not erred in law he would have assessed the monetary compensation at 31,415pounds.

It is convenient at this point to allude to a matter which has arisen for determination on this appeal. On the receipt of the notice of intention to contend that the judgment of the court below be varied, learned counsel for the appellants filed a notice of preliminary objection to the notice of the respondent stating that the contents of the respondent’s notice postulated that he was appealing and so he should have come by way of cross-appeal and not by way of notice of intention to vary the judgment. We listened to arguments on the point and then ruled as follows:-

“We shall allow arguments on both the appeal and the notice only for the purpose of hearing the appeal today and would give our ruling on the point now raised in the course of our judgment in the case.”

A perusal of the notice filed by the respondents makes it plain that like the present appellants the respondent is as well dissatisfied with the terms of the judgment and will like the judgment in the case to be in the terms suggested in his notice.

The point therefore that arose for determination on the preliminary objection is whether the provisions of Order 7, rule 13 (1) are designed to meet a situation which is tantamount to a complete reversal of the judgment already given or the employment of the rule is circumscribed within the bounds of what is strictly speaking a mere variation.

Order 7, rule 13 (1) of the Supreme Court Rules reads as follows:-
“13. (1) It shall not be necessary for the respondent to give notice of motion by way of cross-appeal; but if a respondent intends upon the hearing of the appeal to contend that the decision of the court below should be varied, or that it should be affirmed on grounds other than those relied on by that court he shall within one month after service upon him of the notice of appeal cause written notice of such intention to be given to every party who may be affected by such contention, whether or not such party has filed an address for service. In such notice the respondent shall clearly state the grounds on which he intends to rely and within the same period he shall file with the Registrar of the court below six copies of such notice of which one shall be included in the record, and the other five copies provided for the use of the Judges.”

There can be no doubt that the rule dispenses with the filing of a notice of motion by way of cross-appeal. It is not easy to understand why this procedure, manifestly unknown in this country, has been introduced into our rules. In the United Kingdom, by virtue of provisions contained in the rules of court, notice of motion is necessary in order to initiate appeals in certain circumstances (see Order 55, Annual Practice, 1967).

No provision other than Order 7, rule 13 (1) appears in the rules of the Supreme Court for bringing a cross-appeal, although it is proper to regard any appeal by a dissatisfied respondent as a cross-appeal. This involves, prima facie, that an appeal has already been filed since it is only in that con that one conceives of a respondent at all. On the other hand, there is nothing in the rules of court depriving a respondent of the right to appeal against a decision with which he is dissatisfied. To do this would be tantamount in our view to an infringement of the clear provisions of section 117 (6) of the Constitution of the Federation which specifically reserves the right of appeal prescribed therein.