Goldmark Nigeria Limited & Ors. V. Ibafon Company Limited & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

OLUFUNLOLA OYELOLA ADEKEYE, J.S.C.

This is a further appeal to the Supreme Court by the 1st – 4th appellants against the judgment of the Court of Appeal Lagos Division delivered on the 30th day of March 2000. This judgment affirmed the judgment of the Lagos High Court entered in favour of the 1st – 2nd plaintiffs now 1st – 2nd respondents on the 31st of March 1994.

The appeals lodged by the four appellants were consolidated pursuant to Order of the Supreme Court on 2/2/2009, whereupon the names of the parties as stated on the Motion on Notice dated 25th of May 2006 were adopted.

The parties were re-designated as follows –

1. Goldmark Nigeria Ltd. – 1st Appellant
2. Electron-Holdings Ltd. – 2nd Appellant
3. Nigerian Ports Plc. – 3rd Appellant
4. Landgold Holdings Ltd. – 4th Appellant

And

1. Ibafon Company Ltd – 1st Respondent
2. Kolawole Abayomi Balogun – 2nd Respondent
3. Attorney-General of the Federation – 3rd Respondent
4. The Minister of Transport – 4th Respondent
5. The Minister of Works & Housing – 5th Respondent

The Federal Government of Nigeria now represented by the Attorney-General of the Federation, the 3rd respondent in this appeal acquired a large tract of land at Ibafon off Apapa-Oshodi Expressway, Lagos through its agencies the Ministry of Transport, Ministry of Works and Housing, the 4th and 5th respondents, in July 1976 by the Public Notice 901 of 22nd of June 1976. The 1st and 2nd respondents, Ibafon Company Limited and Kolawole Abayomi Balogun took a Writ of Summons on the 14th day of August 1990 challenging the acquisition of their land by Public Notice No. 901 of the 22nd of June 1976. The beneficiary of the acquisition was the Nigeria Ports Authority now the 3rd appellant in this appeal. The Statement of claim was amended on the 22nd of June 1992.

By the amended statement of claim, the 1st and 2nd respondents claimed before the Lagos State High Court as follows –

1. A declaration that alienation by the 1st defendant to the 5th, 6th, 7th, 8th and 9th defendants and other private business concerns for private business/commercial use of lands acquired by the Federal Government from the plaintiffs on the ground of “public purpose” and the use of these lands by the said defendants and/or other private concerns for their own profit making business/commercial ventures, is not a “public purpose” under the Public Lands Acquisition Act Cap 167 and consequently such alienations are illegal, unlawful, null and void and of no legal effect whatsoever.
2. A declaration that the two parcels of land measuring 2,835 and 1.333 hectares originally belonging to the 1st and 2nd defendants respectively before the purported compulsory acquisition of the same since June 1976 by the Federal Military Government of Nigeria have ceased to be under any valid legal acquisition and should automatically revert to the 1st and 2nd plaintiffs, the same having not been used for any public purpose.
3. An order of inquiry/account into the total sum of rents collected so far from the alienation of the said parcels of land by the 1st defendant since June 1976 to the date of judgment and a direction that the said total sum be paid over to the 1st and 2nd plaintiffs in proportion to their respective lands.
4. An order of perpetual Injunction restraining all the defendants either by themselves, their servants, agents and/or privies from further trespassing upon, alienating, transacting business or doing anything whatsoever in respect of or on the said parcels of land forming the subject matter of this suit.

In the Alternative Only

i. A declaration that the plaintiffs are entitled to compensation for the said acquisition should this honourable court find same to be legal and

ii. An inquiry as to the amount of compensation payable to the plaintiffs by the 2nd to 4th defendants.

The 1st and 2nd respondents filed a 2nd amended Statement of Claim – paragraphs 2-7 read as follows-

2) “By two separate Deeds of lease dated 6th of January 1978 and 20th of January 1976 and registered as No.99 at pg.99 in volume 1794, No.16 in volume 1806 at the land registry in Lagos, the 1st and 2nd plaintiffs respectively became leaseholders for 99 years each of the parcels of land being, lying and situate at Ibafon off Apapa-Oshodi Expressway Araromi, Apapa measuring 2.835 hectares and 1.383 hectares and more particularly described in survey plans No. KE/L/914 dated 20th May 1976 by Alhaji Y.O. Keshinro Licensed Surveyor and No. DB/26/P of 17th January 1976 by Ogunmekan Licensed Surveyor respectively. The plaintiffs shall rely on the said Deed of Lease, survey plans and the two purchase receipts each dated 6th January 1976 at the trial of this suit.

3. At all material times, the plaintiffs were in possession of the said parcels of land and have been exercising ownership rights until when by government Notice No.601 of 22nd of June 1976, the Federal Military Government purported to acquire the said parcels of land for public purpose and in particular for the Nigerian Ports Authority took possession of the said lands.
4. No Notice of the acquisitions was ever served on the plaintiffs nor were they given the opportunity of being heard.
5. To the plaintiffs total shock the plaintiffs discovered that rather than use the said lands for its own purposes, the Nigerian Ports Authority has since then leased out the said lands to private individuals and companies particularly the 5th 6th, 7th, 8th and 9th defendants who now use the parcels of land for their own personal businesses such as the selling of sand and other businesses which are totally private and which have nothing to do with the purpose for which the lands were acquired.
6. Upon realizing that the said lands were no longer used for public purposes, the plaintiffs by several correspondents appealed to the 1st, 2nd, 3rd and 4th defendants to release the lands back to the plaintiffs who needed the lands for their own business purposes rather than leasing them out to other third party businessmen, all to no avail. The plaintiffs shall rely upon all relevant correspondences between the plaintiffs, the plaintiffs’ solicitors and the defendants at the trial.
7. The plaintiffs by their solicitors letter dated 26th February 1990 gave notice to the 1st defendant pursuant to Section 97 (2) of the Ports Act Cap 155 Laws of the Federal Republic of Nigeria before commencing this suit”.

The 1st-4th appellants as defendants filed their statement of defence and the 3rd-5th respondents. The case of the 1st and 2nd respondents was that the 2nd respondent purchased two parcels of land from the Oluwa family, the receipts of payment issued were tendered as Exhibits A and B.

The parcel of land 2,835 hectares was purchased for the use of his company the 1st respondent which he intended to register at a future date and another 1,333 hectares for himself. He took possession of the land and fenced the entire area. He surveyed the properties in 1978 and beacons were erected on the land. Deeds of lease were executed to cover the parcels of land which were registered at the Lands Registry. They were marked Exhibits A and B and Exhibits C and D. At the time Exhibit A was prepared, the 1st respondent was not incorporated as a company. When Exhibit D was executed, the 1st respondent had been incorporated and it was expressly contracted to ratify and adopt the benefit of the contract incorporated in Exhibit A. The 2nd respondent was in possession of the parcels of land when agents of the 4th and 5th respondents entered the land to demolish the walls erected thereon and ejected the 1st and 2nd respondents. The agents claimed that the land had been acquired by the Federal Government. The 1st and 2nd respondents claimed that no notices of acquisition were served on them. The plaintiffs testified that the 3rd-5th respondents through the Nigerian Ports Authority had been employing the land for purposes other than public use; as activities like selling sand, leasing and fishing were carried on there. The 1st and 2nd respondents tendered survey plans in support of their claim to the land in dispute.