National Electric Power Authority V. Mudasiru Amusa & Anor (1976)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, JSC

The Electricity Corporation of Nigeria, popularly known as the ECN, is the defendants’ predecessor. It was established by Section 3(1) of the Electricity Corporation of Nigeria Act (Cap. 58 of the Laws of the Federation, 1958 which is hereinafter referred to as the Act). Its main function is to secure the supply of electricity at reasonable prices.

For this purpose, it had the power to construct, reconstruct, maintain and operate electric generating stations, transmission lines, distribution lines, transformer stations, and all other stations, buildings and works necessary for carrying out their duties under the Act. In order to exercise its powers effectively, it had additional power under Section 19(1) of the Act “to acquire and hold land and all movable and immovable property whatsoever”.

In addition to the above, the Corporation was granted additional powers under section 49 subsections 9(1), (2) and (3) of the Act. These relevant parts of the section read: “49(1) Subject to the provisions of subsection (4) of this section the Corporation may by its officers or agents with all necessary workmen and other servants enter from time to time on any lands for all or any of the purposes following:   (a) the survey and taking of levels; (b) the construction, placing, maintenance, examination, repair, alteration, or removal of any electric or main transmission line; (c) the cutting and removal on each side of any proposed or existing electric or main transmission line of all such trees and underwood as may interfere or be likely to interfere with the constitution or proper working of any such line; (d) attaching to any wall, house or other building any bracket or other suitable fixture required for the carrying or support of an electric or main transmission line or any other electrical apparatus; (e) any other work connected with the supply of electricity.   (2) Save as is otherwise specifically provided by section 50, the Corporation shall when practicable give notice to the occupier of any land on which it is intended to enter. (3) For all or any of the purposes aforesaid such officers, agents, workmen or other servants may remain on any such land for such reasonable time and execute and do all such work and things as may be necessary”.  

Pursuant to the exercise of the powers granted in the above section, it is further provided in Section 52 sub-section (1) and (3) of the Act as follows: “52(1) In the exercise of the powers conferred by Section 49 the Corporation, its officers and servants shall do as little damage as may be and the Corporation shall pay any compensation for any damage done to any buildings, crops, or economic trees.  PAGE| 3   (3) In the case of a dispute as to the amount of compensation payable, the same shall be determined by a magistrate exercising jurisdiction in the place where the land is situate or the High Court within whose area of jurisdiction the land is situated as the case may be and such decision shall be final”. (The underlining is ours).

By virtue of its powers under Section 49 referred to above, the Corporation wrote to the Bale of Idimu who was then the head of the plaintiffs’ family. The letter (Ex. 11), dated 14th April 1966, and signed by the Corporation’s Secretary, reads: “Sir, Notice of Intention to enter upon land In pursuance of Section 49 of the Electricity Corporation of Nigeria Act, I am directed to give you notice of the intention of the Corporation, by its servants or agents, to enter upon land situate at Iseri/Idimu Villages between Milestones 4-8 on Agege-Akesan Road in the Division/District of Colony Ikeja for the purpose of making a survey, taking levels, or executing and doing all such works and things as may be connected with the supply of electricity.    Yours faithfully,   A. Atta, Secretary.”    

On the same day, the following notice (Ex. 12) was given to the occupier of the said land: “TO: The occupier of the land situate in the District of Ikeja Iseri/Idimu Villages between milestones 4-8 on Agege-Akesan Road.    Notice is hereby given that after the expiration of thirty days from the service of this notice the Electricity Corporation of Nigeria in exercise of the powers conferred on them by Section 50 of the Electricity Corporation of Nigeria Act and of all other powers enabling them in that behalf intend to enter upon the said land and execute the works hereinafter referred to that is to say: Description of Works   PAGE| 4    ‘The erection and construction of a Double Circuit 3 Phase Overhead Transmission Line, operating at a pressure of 132,000 volts consisting of 4 S.C.A Conductors 0.25 sq. inch and one galvanised earth wire and supported by Steel Towers in accordance with the regulations made under Section 3 of the Electricity Act Chapter 58 where applicable or any legislation in substitution therefore”.

What transpired thereafter was described by Ayinde Amodu (11th P1/W), who is a member of the plaintiffs’ family as follows: “The NEPA have erected electricity poles and electric wires on our own land. The erection of the poles and the electric wires disturbs us from the usage of our land. The ECN just served us with notice of their intention to pass on our land. This was about nine years ago. After this notice, the ECN came and cut down trees, palm trees and coco-nuts on the land. After cutting the economic trees, the ECN paid for them. This was about 8 years ago. After this, the ECN came to erect electric poles and to erect wires on them. This was about 6 years ago.   Before the ECN came, we were using the land for planting crops. We later decided to make a layout of the land and to lease them out in plots. We had not started the layout before the ECN came.

The surveyor later said that the survey cannot be carried out as the ECN poles were disturbing him. This was about 6 years ago. The ECN officers said the land then belonged to the Corporation and no further survey should be carried out by us. They informed us that if we wanted compensation, we should write to their office. We instructed one Mr. Dina to write on our behalf”. (The underlining is ours).   In answer to questions asked by the court, this witness said: “The transmission lines run parallel to each other.

The transmission lines were extended on top of the poles. There were pillars in which poles were buried on land. We could not work under the lines the top of which were dangerous. The transmission lines make some howling noise in the afternoon. One could not work under them”. (The underlining is ours).    Mr. Dina (3rd P1/W) duly negotiated on behalf of the plaintiffs with the ECN for compensation for the loss of the use of the land. He held a number of meetings with officials of the Ministry of Mines and Power. The claim was discussed at these meetings. The result was explained by the 3rd P1/W as follows:   “At that time, I had two claims that had already been processed remaining only payments. I had one for Itire Ruling Family and one for Madarikan of Idimu, the family involved in this case. The Deputy Permanent Secretary apologised for the delay in paying the claims. He said the delay was due to the fact that they have been waiting for advice from the Ministry of Justice. He said the Ministry of Justice has advised that compensation should be paid on  any land over which NEPA transmission lines had traversed. He instructed NEPA officials that they should go and pay. The NEPA processed the ITIRE family claim and they paid. The payment was made to our company”.

With respect to the plaintiffs’ claim, the ECN instructed their surveyor to go on the land and demarcate the affected area so as to evaluate the amount of compensation payable. The contents of the letter dated 4th December 1972 (Ex. 1) read:   “E.A. Adeniran, Esq. Licensed Surveyor, P.O. Box 6835, Lagos.   Dear Sir,   330/132 KV Overhead transmission line – Lagos/Ibadan: Claims for compensation on landed property of Madarikan Family of Idimu – Lagos State The above landed property is said to belong to Madarikan Family of Idimu, via Agege, Lagos State.   The land is situated on the western side of Idimu village and is between poles Nos. 531-540 for the 330 KV lines and 31-45 for the 132 KV lines. The width of the traces are 200’ and 100’ respectively and the land is traversed by the above mentioned transmission lines thus making some portions unsuitable for further development. The claimants are represented by Pan Cad (Nig.) Co. Ltd. of 2A Shiro Street, Fadeyi, Yaba, Lagos.   You are requested to survey and demarcate the affected portions of the land and to forward to my office five countersigned copies of the survey plan including the original fit for inclusion in the deed of conveyance.  

It is agreed that the Authority will be responsible for the survey fees. You can contact my Assistant Lands Officer (E.E. Obe) at this Headquarters to point out the site to you. The attached site plan should be returned to the undersigned on completion of the job.    (Sgd.) E.U. Okwechime  for SECRETARY TO THE AUTHORITY (ECN)” The survey plan (Exhibits 2 & 2A) later produced by Adeniran (1st P1/W) showed that an area of 94.84 acres were affected. Adeniran also testified that he gave six copies of the survey plan (Ex. 2) to the defendants.    Meanwhile, consultation over the payment of compensation continued between the Ministry of Mines and Power and the National Electric Power Authority (also known as NEPA) who are the successors of the ECN.

Eventually, the Ministry conveyed their decision to NEPA in a letter dated 26th March, 1974 (Ex. 8). The relevant part of the letter reads:   “3. With the promulgation of Decree No. 24 of 1972 which merged the Niger Dams Authority and the Electricity Corporation of Nigeria into a single Authority (NEPA), claims continued and still continue coming in for compensation on land over which transmission lines pass. We have therefore asked our Law Officers to closely examine the NEPA Decree to ascertain whether it allows for what is now being described as “way-leave compensation” in respect of land over which your transmission lines pass.

4. After a very exhaustive examination of the NEPA Decree, our Legal Adviser has concluded that no compensation is payable or relief grantable under the law for any land or building (including building in a built-up area) across which an electric main transmission line passes. This further confirms the view of the Federal Ministry of Justice in its letter No. LE.38/II/331 of 15th October, 1970, a copy of which is attached for ease of reference. Thus, under the NEPA Decree, the Authority is not expected to pay compensation except as stipulated under Section 33 of the Decree.   5. With the position as clarified in paragraph 4 above, you will please dispose of all outstanding claims for the so-called “way leave compensation” accordingly”.