Alhaji (Chief) S. D Akere & Ors. V. The Governor Of Oyo State & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

In the Originating Summons issued at the High Court Registry, Ibadan, on 25th day of November, 1992, the appellants, as plaintiffs, posed the following question:

“Whether the plaintiffs are entitled to be paid compensation including interest for delayed payment for their land compulsorily acquired in 1963 along Araromi-Akufo road, Ibadan. If the answer to the above question is in the affirmative then the Plaintiffs claim:

(i) Declaration that under and by virtue of the provisions of section 31, of the Constitution of the Federation 1963, No. 20 the plaintiffs are entitled to be paid compensation for their land situate along Araromi-Akufo road, Ibadan compulsorily acquired by the defendants in or about 7th February, 1963.

(ii) Declaration that by virtue of the provisions of the Public Lands Acquisition (Miscellaneous Provisions) Act 1976, No. 33 the plaintiffs are entitled to be paid interest at bank rate on the said compensation.

(iii) AN ORDER directing the defendants to pay the plaintiffs the sum of N21,222,348.25 representing principal and interest due to the plaintiffs as compensation.

(iv) INIEREST at the rate of 21% per annum on the sum of N21,222,348.25 from 1st January 1992 until the whole amount is paid.

(v) Such further orders’”

In support of the originating summons is a 19 paragraph affidavit deposed to by the 2nd appellant, Alhaji Karimu Olapade Akere.

The defendants (Respondents) filed a Notice of Preliminary Objection to the hearing of the suit. The notice was dated 31/3/93 and was predicated on the ground that:

“(1) The application (suit) is statute barred by virtue of the provisions of section 10 of the Public Lands Acquisition Law Cap 105 Laws of the Western Region of Nigeria 1959 (now Chp. 105, Laws of Oyo State of Nigeria 1978) and the Limitation Law Cap 64, Laws of Oyo State of Nigeria, 1978.” On 14/6/93 a counter-affidavit of 11 paragraphs was filed on behalf of a group called “Akufo Land owners Association” stating, inter alia, that the association did not authorise Mr. Akinyemi to sue on their behalf. Mr. Akinyemi is, perhaps, the 14th plaintiff (appellant) Chief A. A. Akinyemi.

In a ruling on the preliminary objection delivered on the 8th day of March 1994,the learned trial Judge Adesina J., concluded thus:

“On the whole the preliminary objection is refused and is accordingly dismissed.” (See page 42 of the record).

Nothing was said of the counter-affidavit of the Akufo Landowners Association. The case proceeded to trial before Adekola J., on 31st May 1995. At the close of the defence’s case on 2/8/95 the Court adjourned to 19/9/95 for Counsel’s addresses. On 10/1/96, the Court reserved judgment till 20/3/96.

In the judgment delivered on schedule, the learned trial Judge made reference to the ruling delivered on 8/3/94. His Lordship expressed the view that the ruling that the Suit was not statute barred would have been otherwise if Adesina, J., had applied section 11 of Decree No. 33 of 1976 in which case the claim for compensation would have been time-barred by 3rd August 1968. The learned Judge regretted his incompetence to review and reverse the ruling that the Suit was not statute-barred. His Lordship however concluded his judgment as follows:

“In the circumstances I hereby declare that the plaintiffs are only entitled to the payment of the sum of N1,233,960 as compensation in respect of 822.54 hectares of land acquired by the defendants in 1963 and that the said amount shall not attract any interest whatsoever.”

He said he could not grant interest on the compensation due to the plaintiffs because the land was acquired from the original landowners. He added that even if interest is payable, the plaintiffs would have been limited to ten years from the time of purchase of the property to the time they were served notice of acquisition. The learned trial Judge made the final order that the plaintiffs be paid the sum of N1,233,960 as the amount due as compensation in respect of the 822.64 Hectares of land acquired from them by the defendants.

Aggrieved by the judgment, the plaintiffs now appellants, appealed to the Court of Appeal, Ibadan Division. The lower Court reviewed the facts and the authorities relied on by the parties, and concluded thus:

“In the result there is totally no merit in the entire appellants’ appeal and it deserves to be dismissed. But since I have held earlier above that the learned trial Judge had no jurisdiction to entertain the claim the order i will make is one setting aside the judgment and orders made by the lower Court. In their place I hereby make an order striking out the applicants’ claim. The claim is accordingly struck out. But I will make no order on costs.” (See page 207 of the record).

Again, the appellants were aggrieved. They appealed to this Court on four grounds.

In accordance with the rules of this Court, learned Counsel for the parties filed and exchanged briefs of argument. In his brief of argument dated 28th November, 2003 and filed on 11th December, 2003 learned Counsel for the appellants distilled the following three issues from the four grounds of appeal:

‘(i) Whether the issue of jurisdiction was competently raised in the Court. Ground 1.

(ii) Whether the lower Court was right in basing compensation payable on N1,500.00 and awarding the sum of N1,233,960.00. Grounds 2 and 3.

(iii) Whether the appellants are or not entitled to interest on compensation payable to them. Ground 4.”

In his brief deemed filed on 26/5/2008, learned counsel for the respondent, in his preliminary point of law, urged the Court to strike out paragraphs 3.8 (a) and (c) of the appellants’ brief because the date of accrual of cause of action was not raised or pronounced upon in the lower court. He relied on Akpan v. Julius Berger (Nig) Plc (2003) FWLR (Pt. 182) 1827 at 1838 paragraphs B-E. In the event that the court does not accede to his request, he formulated the following four issues in his brief:

“(i) Whether by virtue of the Public Lands Acquisition Miscellaneous (Provisions) Decree No. 33 of 1976, the trial Court has jurisdiction to entertain the claim of the appellants.

(ii) Whether the lower Court was right in holding that the trial Court lacked jurisdiction to try the plaintiff/appellants’ claim.

(iii) Whether the lower Court was right in affirming the judgment of the trial Court that the appellants were entitled to only N1,293,960.00 as compensation on 822 hectares of land acquired by the then Regional Government.

(iv) Whether the lower Court was right in affirming the decision of the trial Court to the effect that the plaintiffs/appellants were not entitled to interest on the amount payable as compensation to the appellants.”

Appellants, reply brief was deemed filed and served on 13/2/2012.

At the hearing of this appeal on 13/2/2012, the respondents were not represented by Counsel. The appeal was deemed to have been argued in the briefs filed on behalf of the parties.

I shall here and now deal with what learned counsel for the Respondents dubbed “preliminary point of Law” pursuant to which he urged the court to strike out paragraphs 3.8 (a) and (c) in the appellants’ brief for the fact that the appellants raised the issue of the accrual of cause of action for the first time. If this is meant to serve the purpose of preliminary objection, it is incompetent for failure to follow the procedure laid down in Ord. 2 r.9 of the Supreme Court Rules 1999 (as amended) hereunder reproduced:

“ORDER 2 Rule 9:

(1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with ten copies thereof with the Registry within the same time.

(2) If the respondent fails to comply with this rule the Court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other orders as it thinks fit.”

Even if the preliminary point of law raised by the appellant had been raised in compliance with the above order it could have been of no avail to the respondents, as the issue was resolved in the preliminary objection filed by the respondents in the trial Court. The respondents’ objection was predicated on the ground that:

“(1) The application (Suit) is statute-barred by virtue of the provisions of Section 10 of the Public Lands Acquisition Law Cap. 105 Laws of the Western Region of Nigeria 1959 (now cap 105 of Laws of Oyo State of Nigeria, 1978) and the Limitation Law Cap. 64 Laws of Oyo State of Nigeria, 1978.”

Issues relating to the date of accrual of the cause of action were canvassed by the parties in the trial Court in their arguments in the preliminary objection. The Court resolved the issue in favour of the appellants. The respondents cannot, in the circumstance, raise the issue of date of accrual of action once more in the guise of preliminary Point of law.

In his reply brief, learned Counsel for the appellants referred to the judgment of the trial court that the defendants did not discharge the burden on them to prove the time the cause of action arose. He referred to page 42 lines 18 – 32 of the record where the trial court held:

“Lastly, I must say that by Section 236(1) of the unsuspended part of the constitution of Federal Republic of Nigeria 1979 which is still subsisting the jurisdiction of the High Court of a State is unlimited both in criminal and civil matters. Therefore, part of section 10(1) of the Oyo State Public Lands Acquisition Law which purports to deny any person in claiming compensation in respect of compulsory acquisition of his property and the amount of compensation to a Court of Law except through a Land Tribunal is void to that extent. As a matter of fact the Public Lands Acquisition Law was a law promulgated in 1978 before the 1979 Constitution. That is why Land Tribunals ceased to be in existence after the 1979 Constitution had become operational. The plaintiffs are therefore right in bringing their action in this Court.”

The respondent did not cross-appeal the above decision. The preliminary objection, if that is what it is, is hereby overruled. Paragraph 3.8 (a) and (c) in the appellants’ brief is competent.

The lower Court decided that the trial Court had no jurisdiction to entertain the appellants’ claim. It is the issue of jurisdiction the appellants should concentrate on, not whether the issue is competently raised or not Respondents’ issues 1 and 2 are the same – Whether the trial Court had jurisdiction to entertain the matter.

In dealing with the appeal, I will adopt issues 1 and 2 in the respondents’ brief as issue 1 and appellants’ issues 2 and 3. I will re-number the issues thus:

(1) Whether by virtue of the provisions of the Public Lands Acquisition (Miscellaneous Provisions) Decree No. 33 of 1976 the trial Court has jurisdiction to entertain the appellants’ case.

(2) Whether the lower Court was right in basing compensation payable on N1,500.00 and awarding the sum of N1,233,960.

(3) Whether the appellants are or not entitled to interest on compensation payable to them.

The three issues are composed of the Respondents issues 1 and 2 resolved into one.

I have carefully examined the grounds of appeal filed by the appellants vis-a-vis the issues raised by the parties in their briefs. Issues 1 and 2 in the respondents’ brief resolve themselves into one issue – a challenge to the jurisdiction of the trial court to entertain the appellants’ suit. Learned counsel for the respondents did not relate the issues to any one of the appellants’ four grounds of appeal. They neither counter-claimed nor filed a respondents’ notice.

In their four grounds of appeal, appellants did raise the issue of whether or not the lower Court had jurisdiction to entertain their suit. Appellants’ ground one is on the way and manner the respondents, who did not raise the issue in the trial Court, raised it in the lower court. The ground is concerned not with jurisdiction or lack of it, but with the way it was raised in the court below.

I will discountenance the issues, i.e. 1 and 2 in the respondents’ brief. Idika v. Arisi (1988) 2 NWLR (Pt.28) 563 at 579 and Oniah v. Onyia (1989) 1 NWLR (Pt.99) 514 and 527 among others are relied on by the appellants and I find them apt. Issues 3 and 4 in the respondents’ brief are a different version of appellants’ issues 1 and 2. I shall therefore determine the appeal on the three issues in the appellants’ brief of argument.

Arguing issue one in his brief, learned counsel for the appellants questioned the propriety of the respondents raising the issue of jurisdiction in the lower court when the issue did not arise from the appellants’ ground of appeal in that Court and the respondent did not file a cross-appeal. He argued that, based on Briggs v. Bob-Manuel (2003) FWLR (Pt. 146) 945 at 955, since the issue of jurisdiction in this case had the effect of reversing the decision appealed against, the respondents cannot raise the issue without a cross-appeal. He relied on Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563 at 529 and argued that the issue of jurisdiction raised for the first time by the respondent did not arise from the grounds of appeal and as the respondents did not cross-appeal the issue was not tied to any ground of appeal.

He relied on Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514 at 527; Imonikhe v. AG Bendel State (1992) 6 NWLR (Pt. 248) 396 at 407. He argued that even if it was assumed that the issue was raised as preliminary objection, the rule for so doing was not complied with. He referred to Jiddun v. Abuna (2000) 14 NWLR (Pt.686) 209 at 223. He referred to the record and contended that in raising the fresh issue of jurisdiction, the respondent did not apply for or obtain leave of Court to do so. He relied on Joy v. Dom (1999) 9 NWLR (Pt. 620) 538 at 547. In the circumstances, he argued, the lower Court was in error when it considered and resolved the issue of jurisdiction raised by the respondents.

In issue two, learned Counsel contended that Exhibit E was part of the appellants’ evidence in the main suit as it was attached to the affidavit of 25th November, 1992 in support of the summons. He argued that the lower Court did not appreciate that the reason the trial court rejected Exhibit E as the basis for calculation of compensation due to the appellant was that Akufo fell outside the 12 km radius from Mapo Hall while it was shown in Exhibit D that Araromi fell within the 12 km but there was no evidence of the total Hectares of the land which fell within the 12 km radius.

He submitted that the evidence on whether or not the land fell within the 12 km radius from the Mapo Hall was not properly evaluated by the trial Court and since the issue does not involve the credibility of witnesses, this Court is in as good a position as the trial court to evaluate the evidence. He relied on Abasi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643 at 673. Learned counsel referred to affidavit evidence of the parties and argued that the totality of the evidence show:

(i) That Exhibit E was based on the provisions of the 1st Schedule to Decree No. 33 of 1976 and was issued by the respondents.

(ii) That the radius of 12 km from Mapo Hall, Ibadan is not the basis of zoning under Decree 33 as it was not used in other acquisitions.

(iii) That radius of 12 kilometres was only referred to in Legal Notice No. 13 of 1978 made under the Land Use Decree, 1978.

(iv) That the respondent admitted liability to the tune of a sum of N3,923,992.80.

As in what zone under schedule 1 to the Public Lands Acquisition (Miscellaneous Provisions) Decree the land is located, he said that there is evidence that the land is in Ibadan, even though the respondents argued that the land is not in Ibadan but is behind The Polytechnic, Ibadan, a rural area, relying in Oyo State Legal Notice No. 13 of 1978 made under the Land Use Decree. He raised the question whether the OYSLN 13 of 1978 is applicable to land acquired under Decree 13 of 1967. He pointed out that Decree No. 13 of 1967 did not state which area of the State is rural but categorised the lands as follows:

(i) State Capital (irrespective of which part of the State Capital).

(ii) Industrial and Commercial Urban Centres.

(iii) Other Urban and Semi-Urban Centres.

(iv) All other areas.

He referred to s.2 of OYSLN 13 of 1978 and said that the areas declared urban areas are for the purposes of the Land Use Decree of 1978. By way of analogy, counsel cited Okomu Oil Palm Co. Ltd. v. Isernienrhien (2001) 6 NWLR (Pt. 210) 600 at 679 and FMBN v. Olloh (2002) 9 NWLR (Pt. 773) 475 at 488 in which this court held that the definition of Public Officer is for the purpose of the Code of Conduct and urged the Court to hold that OYSLN 13 of 1978 is limited for the purpose of the Land Use Decree of 1978.

He stressed that the land is along Araromi-Akufo road, Ibadan and not at Araromi or Akufo but in Ibadan, the state capital. He contended that the amount payable on lands acquired in state capitals is N3,750.00 per hectare. He urged the Court to allow the appeal on the issue and hold that the basis of compensation should be the sum of N3,750.00 per hectare.

In issue three, he argued that the lower courts wrongly invoked s.4(2) of the Decree No.33 of 1976 to deny appellants interest on compensation due to them. He contended that s.4 (2) relates to; (i) undeveloped land; (ii) land acquired by purchase. He referred to paragraphs 3 and 7 of the 2nd appellants’ affidavit in support of the summons and argued that the appellants are original owners and that the land was already developed before it was acquired by the respondents, and the claim is brought under s.6 of Decree 33 and not s.4 (2) thereof. He referred to pages 19, 24-25 of the record and argued that having agreed in Exhibits E and H to pay the total sum of N21,222,348.25 the respondents are estopped from disputing the rate of interest payable. He referred to section 91(3) of the Evidence Act, Abdullahi v. Hashidu (1999) 4 NWLR (Pt. 600) 638; Ogidi v. Egba (1999) 10 NWLR (Pt. 621) 42 and submitted that Exhibits R1-R3 on pages 66-67 of the record which were procured and written during the pendency of the action and relied on by the respondents to prove the rate of interest are of no evidential value.

He urged the Court to reverse the concurrent decisions of the lower Courts.

He urged the Court to allow the appeal for:

(i) Issue of jurisdiction entertained by the Court of Appeal was not raised from a ground of appeal;

(ii) Appellants’ claim was based on N3,750.00 per hectare as provided for State Capitals in the 1st Schedule to the Public Lands Acquisition (Miscellaneous Provisions) Decree 1976.

(iii) The appellants are entitled to interest under s.6 of the Public Lands Acquisition (Miscellaneous Provisions) Decree 1976. S.4(2) thereof is not applicable.

In his brief, learned Counsel for the respondents argued issues 1 and 2 together. Issues 1 and 2 are issues of jurisdiction. The issues do not relate to any ground of appeal as I have stated earlier in this judgment. Respondents did not file a cross-appeal. The issues are not relevant to the determination of the appeal and are hereby discountenanced.

In issue 3, learned Counsel for the respondents said that the conclusion that the appellants are entitled to N1,233,960.00 as compensation was based on evaluation of the evidence of PW1, and PW2. He said that the lower Court found that the PW1 was an interested witness, being one of the claimants as well as the expert that computed the figures in question. He argued that the appellants did not lead evidence to show that the compensations paid on lands acquired for IITA, AJODA, New Town and Ibadan Airport were paid under the provisions of the Public Lands Acquisition Decree 33 of 1976.

Learned Counsel argued that the appellants cannot rely on a letter Exhibit E written by one defendant to another defendant in respect of compensation payable to be N21,222,348.25 but should have called credible independent witness to prove same but they failed to do so. He said that the lower court could not rely on computation based on N3,750.00 per hectare and the location of the land as given by chief Akinyemi who was commissioned by the appellants. He argued that the lower court rightly took judicial notice of the fact that farm settlements were in rural areas and the land was acquired for farm settlement. He relied on s.73 of the Evidence Act and Uba v. Abimbolu & Co. (1995) 9 NWLR (Pt. 419) 317. He contended that the lower court was right in affirming the decision of the trial court on the compensation due to the appellants.

In issue 4, he relied on s.4(2) of the Public Lands Acquisition (Miscellaneous Provisions) Decree in his argument that the appellants are not entitled to interest not having shown that they acquired the land by purchase. He said that the lower Court was right in affirming the decision of the trial court that the appellants were not entitled to interest. He urged the court to dismiss the appeal.

In his reply brief, learned Counsel for the appellants dealt with the preliminary point of law raised by the respondents and touched on issues III and IV in the Respondents’ brief.

In order to determine whether or not the issue of jurisdiction was competently raised in the lower Court by the respondents, it is necessary to reproduce the 7 grounds of appeal filed by the appellants in that Court.

GROUNDS OF APPEAL:

1. The learned trial Judge erred in law when he held that the plaintiffs put in their claim for compensation 26 years after the land had been acquired.
2. The learned trial Judge erred in law when he held that the compensation due to the plaintiffs shall be limited to the existing use value of the land which shall attract no interest since the plaintiffs did not acquire their land by way of purchase and the estate had not been mainly developed for residential purposes.
3. The learned trial Judge erred in law when computing the compensation payable to the plaintiffs, he held that the acquired land fell outside urban area within zone C of Schedule 1 to PLA for which N1,570.00 per hectare has been prescribed as compensation for other urban and semi-urban centres.
4. The learned trial Judge erred in law when he failed to hold the Exhibits E and H amount to admission of liability to the plaintiffs to the tune of N21,222,348.25 as held earlier in the ruling of the same Court which was never appealed from.
5. The learned trial Judge erred in law when he held that if his learned brother had adverted to Section 11 of the PLA his interlocutory ruling confirming the right of the plaintiffs to compensation would have been different.
6. The judgment is against the weight of evidence.
7. The learned trial Judge erred in law when he held that the only appropriate person who can assess the, amount of compensation payable is the Chief Lands Officer of a State.”

I have reproduced the grounds of appeal shorn of their particulars but there is nothing in the particulars that raises, directly or by implication, an issue of jurisdiction. No issue of jurisdiction could have been validly raised from any of the grounds and the appellants did not raise any in his brief before the lower Court. The same cannot be said of the Respondents.

Issue one in the respondents’ brief in the lower court is hereunder reproduced:

“(1) Whether by virtue of the provisions of the Public Lands Acquisition (Miscellaneous Provisions) Decree No. 33 of 1976, the trial Court has jurisdiction to entertain the claim of the Plaintiffs.”

What the learned Justices of Appeal heard and determined was the appellants, appeal, not even a respondents’ notice. The over-riding importance of jurisdiction cannot be overstated. It is the life blood of any litigation before a Court properly so-called. It is so fundamental that when a Court has no jurisdiction, any action taken by that Court will be a nullity notwithstanding the fact that the proceeding was well conducted. See Osakue v. Federal College of Education Asaba & Anor (2010) 5 SCM 185, 201-202. See also Madukolu v. Nkemdilim (1962) 1 ANLR (Pt. 4) 587 for the principles which define the jurisdiction or competence of a Court to entertain a particular matter.

A Court of trial or a court exercising appellate jurisdiction must first of all determine whether or not it has jurisdiction to take cognisance of the matter presented to it for adjudication. Though the issue of jurisdiction can be raised at any time either in the trial court or in an appellate court, the right to do so like any other right, is not absolute.There are certain circumstances where the issue cannot be raised unless certain requirements are complied with. In this appeal, there are two factors which inhibit the right of the respondent to raise the issue of jurisdiction and by extension on the competence of the lower Court to determine same. The first one relates to the principle of formulation of issue in an appeal. By that principle, any issue for determination in an appeal not related to or based on a ground or grounds of appeal is not only incompetent but completely valueless to the determination of the appeal and must be ignored. See Omo v. JSC Delta State (2000) 7 SC (Pt. 11) 1. The issue for determination must flow from the ground or grounds of appeal. A respondent is at liberty to adopt the issues framed by the appellant from the grounds of appeal or he may give the issue a slant to favour his own case, but in so doing, he has to confine himself to the grounds of appeal.

A respondent who did not cross-appeal has no business presenting issues from the blues. In this case, the issue of jurisdiction did not arise from any ground or combination of appellants’ grounds of appeal. There was no cross-appeal from where the issue could have been raised. Here, the issue of jurisdiction raised, not by way of preliminary objection, but as a substantive issue for determination, is grossly incompetent as it did nor arise from or relate to, any of the appellants’ grounds of appeal. On the authority of Madukolu v. Nkemdilim (supra), the Court of Appeal is not competent to determine the issue so raised.

Secondly, the issue of jurisdiction was raised by way of preliminary objection by the respondents in the trial wherein they argued that the Suit was statute-barred. In their preliminary objection, the respondents (as defendants) stated:

“The application (Suit) is statute-barred by virtue of the provisions of section 10 of the Public Lands Acquisition Law Cap.105 Laws of Oyo State of Nigeria 1978 and the Limitation Law Cap. 64 Laws of Oyo State of Nigeria 1978.”

The learned trial Judge Adesina, J. overruled the preliminary objection. At page 41 of the record, His Lordship held:

“However, it is the defendant that ought to plead and prove that the action is statute-barred. For instance, it is the defendant that ought to prove in the precise date when the cause of action arose for the computation of the period of limitation.”

In concluding his ruling, the learned Judge held:

“Lastly, l must say that by section 236(1) of the unsuspended part of the Constitution of the Federal Republic of Nigeria, 1979 which is still subsisting the jurisdiction of the High Court of a State is unlimited both in criminal and civil matters. Therefore, part of section 10(1) of the Oyo State Public Lands Acquisition Law which purports to deny any person in claiming compensation in respect of compulsory acquisition of his property and the amount of compensation to a Court of law except through a Lands Tribunal is void to that extent. As a matter of fact, the Public Lands Acquisition Law was a law promulgated in 1978 before the 1979 Constitution. This is why the Lands Tribunals ceased to be in existence after the 1979 Constitution had become operative. The plaintiffs are therefore right in bringing their action in Court.”

There was no appeal against the ruling of the trial court on the preliminary objection declaring that the High court had jurisdiction to hear the case. The issue of jurisdiction having been settled at the trial court, can only be entertained on appeal to the lower court and since there was no such appeal, the lower Court lacked the jurisdiction to reopen an issue already settled by the trial Court. At page 204 of the record, the lower Court, in its judgment concluded on the issue of jurisdiction held:

“As it has been clearly shown that the Oyo State High Court that adjudicated over the appellants’ claim lacked jurisdiction to entertain the action, the entire proceedings before the court is therefore a nullity.”

In my humble view, the trial Court’s decision on issue of jurisdiction is a subsisting decision of that court and there being no appeal against it, the Court of Appeal was not competent to pronounce on it. In conclusion on this issue, I am of the view that the Court of Appeal erred in law in entertaining the issue of jurisdiction for the following reasons:

(1) The issue does not relate to any ground of appeal and there was no cross-appeal from which the issue could have risen.

(2) There was no appeal against the decision of the trial Court on the issue of jurisdiction.

If I may add, I think it is unfortunate that Adekola, J. of the Oyo State High Court purported to sit on appeal over the judgment of Adesina, J. of the same High Court and came to the conclusion that the ruling would have been the other way round if his learned brother had considered a particular legislation. But even that had no effect on the validity of the ruling against which no appeal was filed and which the respondents are deemed to have accepted.

In order to justify its interference and reopening of an issue already settled by the trial Court and against which the respondent did not appeal or cross-appeal, the lower Court at pages 200 – 201 of its judgment made a big show of the importance of jurisdiction, as if that was ever in doubt. The lower Court stated:

“In view of the importance attached to the issue of jurisdiction, the law relating to how and when the issue could be raised is very relaxed. The position of the law, therefore, is that the issue of jurisdiction can be raised viva voce, it can be raised at any stage of a case be it at the trial or appeal to the Court of Appeal or to the Supreme….Once it is apparent to any party that the Court may not have jurisdiction afortiori the Court can even raise it suo motu.”

The mode adopted by the respondents was by raising it as a preliminary issue in the Respondents’ Brief….” I do not intend to raise an issue on the exposition of the law relating to jurisdiction by the Court below. However, the last part of the portion of the judgment reproduced above gives a cause for concern. I think the court below appeared to have stepped out of its role as an impartial arbiter in the contest as to whether the judgment of the trial Court is right or wrong and leaned towards the respondents.

The respondents DID NOT raise the issue of jurisdiction as a preliminary issue in their Respondents’ Brief. Paragraph 3.0 of the respondents’ brief in the Court below is captioned “ISSUES FOR JURISDICTION”. In paragraph 3.01, the first issue for determination was framed thus:

“(i) whether by virtue of the provisions of the Public Lands Acquisition (Miscellaneous Provisions) Decree No. 33 of 1975, the trial court has jurisdiction to entertain the claim of the plaintiffs.” See page 166 of the record.

Contrary to the assertion of the Court below, the issue was raised as a substantial issue for determination. The importance of jurisdiction cannot confer jurisdiction on the Courts to make case for any party before it. And if the Court raises the issue suo motu, the parties, particularly the appellants ought to be given opportunity to be heard before its resolution. But even if it was raised as a preliminary issue, the respondents cannot be heard to reopen an issue already settled by the trial Court without appeal or cross-appeal. In the ruling on the issue of jurisdiction raised as preliminary objection by the respondents, the Oyo State High Court decided it had jurisdiction and that in any event, no Lands Tribunal was in existence in the State at the material time.

In my view, even if the Lands Tribunal had exclusive jurisdiction where and when the Tribunal is not constituted, the State High Court would have jurisdiction over matters it would have jurisdiction but for the exclusive jurisdiction of the Tribunal. See State v. Lantarki Yamusisska (1974) 6 SC 53 at 61, one of the cases relied on by the appellants,

No evidence is required to prove the existence vel non of the Lands Tribunal. It is a matter of which the court can take judicial notice. The tribunal does not exist if the Court cannot take judicial notice of its existence. See s.73 of the Evidence Act Cap E14 of 2004. The issue of jurisdiction is all embracing and has to be determined forthwith once it is raised competently. This is one case in which the issue of jurisdiction was not competently raised and the lower Court is without jurisdiction to determine it. The lower Court engaged in an exercise in futility in purporting to determine the merit of the issue which was not competently raised before it. See Madukolu v. Nkemdilim (supra).

In issue 2, the lower Court stated the reasons for the trial Court’s refusal to accept the sum of N21,222,348.25 in Exhibit E as compensation due to the appellants as:

“(a) Exh. E was attached to the appellants’ affidavit in the interlocutory motion in which the respondents urged the Court to dismiss the suit as statute barred.

(b) The parties had not joined issues on the amount of compensation payable to the appellant at that stage.

(c) The writer of Exh E was one of the claimants and the principle adopted conflicted with those laid down in Public Lands (Acquisition Miscellaneous Provisions) Act of 1976.” See page 206 of the records.

The lower Court did not advert to the main reason for the trial Court’s rejection of the sum of N21,222,348.25 as compensation due to the appellants. At page 132 of the record, the trial Court stated in its judgment:

“In Schedule 1 of the Decree, the sum of N3,750 be paid per Hectare in respect of State Capitals and

Industrial and Commercial Urban Centres. While the sum of N7,500.00 is payable per Hectare in respect of other Urban and Semi-Urban Centres, and such Zone will be in Zone C. can it be said having regard to the available evidence before the Court that Araromi/Akufo acquisition should be in Zone B or Zone C.”

The trial Court stated further at page 132 of the record:

“It seems to me more appropriate to agree with the interest classification of Akufo/Aroromi Settlement to be within the other Urban and semi-urban centre (sic). This is so when one considers the purpose for which the acquisition of Akufo/Araromi was made. It was made for the purpose of farm settlement. Farm settlement are (sic) not ordinarily located within an urban area. My acceptance of the fact that Akufo/Aroromi is within Zone C, that is other urban and semi-urban centre is reinforced the more by the plan Exhibit D where Akufo itself was shown to fall outside the 12 kilometre radius from Mapo Hall, while it was shown in Exhibit D that Aroromi fell within the 12 kilometre (sic). There is no evidence before the Court that the total Hectare of the land acquired from the plaintiffs by the defendants which fell within the 12 kilometre radius from Mapo Hall.”

See pages 132-133 of the record.

The real reason the trial Court had for rejecting the figures based on N3,750.00 per hectare and preferring the figure based on N1,500.00 per hectare is the location of Akufo and Araromi. The lower court did not appear to have appreciated this point. The trial Court relied on Exhibit D to conclude, perhaps rightly, that Akufo is outside the 12 kilometre radius from Mapo Hall. It was shown also on Exhibit D that Araromi falls within the 12 kilometre radius from Mapo Hall. Be that as it may, the locations of Akufo and Araromi in relation to Mapo Hall are irrelevant to the determination of appellants’ case in the trial Court.

Their claim is based on the land “situate along Araromi-Akufo road, Ibadan.” There is no evidence that the appellants’ land acquired by the respondent is situate at a place other than along Araromi-Akufo road, Ibadan. In the same vein, it is not claimed, nor was evidence led by either party, that the land is situate at Akufo or Araromi or both. It is appropriate to reproduce here part of the judgment of the trial Court on this point. The Court held:

“….it would have been possible and appropriate for the Court to assess compensation on the basis of N3,750 for such area and the other area falling within Akufo which is outside the 1-2 kilometre radius from Mapo Hall to be calculated on the basis of N1,520 per hectare.”See page 133 of the record.

The trial Court assumed suo motu and without evidence that the land was situate at Akufo and Araromi and not along Araromi-Akufo road, Ibadan as stated by the appellants. In paragraph 3 of the affidavit of one of the appellants deposed to on 25/11/93, the location of the land was stated as along Araromi-Akufo road. The paragraph reads:

“(3) ….that a copy of the acquisition notice is attached herewith as Exhibit.”

See page 3 of the record.

The said Exhibit is Western Nigerian Gazette No. 9 Vol. 12 of 7th February, 1963. The relevant portion is headed “Western Region Notice No. 206 Public Lands Acquisition Law (Cap 105) LAND REQUIRED FOR THE SERVICE OF THE GOVERNMENT OF WESTERN NIGERIA”. It states:

“NOTICE is hereby given that the following land at Araromi-Akufo road, Ibadan, in the Ibadan Division of the Ibadan Province, Western Nigeria is required by the Government for public purposes absolutely’” (Emphasis mine)

The description of the land in the Notice stated inter alia:

“All that parcel of land at Araromi-Akufo road, Ibadan in the Ibadan Division, Ibadan Province, Western Nigeria….” See page 6 of the record.

Araromi-Akufo road, Ibadan, cannot be the same as Araromi or Akufo or both as implied by the trial Court and accepted by the lower Court in its judgment. In the First schedule to the Public Lands Acquisition (Miscellaneous Provisions) Act 1976 applicable to the appellants’ claim for compensation for their land acquired for public purposes, the Zones and compensation payable per hectare of land are:

“Zone A: Metropolitan Lagos (i.e. the former Federal Territory.

B(i) Lagos State, other than Metropolitan Lagos == N7,500 Per hectare.

(ii) State Capitals

(iii) Industrial and Commercial Centres == N3,750 per hectare.

C. Other Urban and Semi-Urban Centres == N1,550 per hectare.

D. All other areas == N1,250 per hectare.

Ibadan was the capital of old Western Nigeria and now the capital city of Oyo State. For whatever purpose the land was acquired, even if for a farm settlement as speculated by the trial Court, it cannot transform a portion of the Capital City of Ibadan into “Other Urban or Semi-Urban Centres”. Therefore, the appellants are entitled to compensation on the basis of N3,750 per hectare as their land acquired by the respondent is situate along Araromi-Akufo road within the Oyo State Capital, Ibadan. Appellants are entitled to their claim of compensation for their land at the rate of N3,750.00 per hectare. Issue 2 is resolved in favour of the appellants.

In issue 3, the appellants posed the question “whether the appellants are or are not entitled to interest on compensation payable to them.” In dealing with the issue of interest, the trial Court applied, and the lower Court affirmed the application of section 4(2) of the Public Lands Acquisition (Miscellaneous Provisions) Act 1976 which provides:

“S.4(2): Where the land is an undeveloped land compensation payable shall be limited to the actual cost of the land together with interest at the bank rate calculated from the date of the purchase of the land up to the date of the notice to acquire the land, subject to a maximum of ten years, or the existing use value of the land, whichever is greater…”

The appellants did not claim to have acquired the land. However, the question is whether the land is undeveloped as found by the trial Court and affirmed by the lower Court or developed as claimed by the appellants.

In paragraphs 7, 8, 9, 10 and 11 of the affidavit of Alhaji Karimu Olapade Akere, one of the appellants, it was averred as follows:

“7. That we filed our claim for compensation and about three years after the acquisition, the compensation due to us for our crops within the acquisition was paid by the defendants with a provision that the compensation for buildings and the land would be paid to us later. (Emphasis mine)

8. That we made several demands on the defendants through several meetings with their officials to ensure payments of the compensation due to us for our buildings and land but they kept on promising to pay. (Emphasis mine).
9. That attached as Exhibit A is a copy of the minutes of the meeting we held with the officials of the defendants on 14th December, 1977, where they promised that the government was ready to accede to our request and pay us our compensation both on building and land. (Emphasis mine).
10. That notwithstanding the promise and persistent demands by us thereafter the compensation due to us for buildings was only paid in 1984 through December 1987 with promise that the compensation due for land would be paid later. (Emphasis mine)
11. That subsequent to the payment of the compensation for buildings, we made several demands again on the defendants through the 14th Plaintiff who wrote several letters to the 1st Defendant. Copies of the letters are attached herewith as Exhibits B and C, while the note referred in Exhibit B is attached as Exhibit D.” See page 4 of the record. (Emphasis mine).

The above averments were not controverted and are therefore deemed accepted by the respondents who had opportunity to challenge them but did not do so. A land on which there are buildings for which the respondents already paid compensation cannot be said to be undeveloped. In my view and based on the evidence before the Court, the land of the appellants was developed with buildings on it at the time it was acquired by the respondents. It follows that they erred in affirming the decision of the trial Court.

The decision to apply s.4(2) of the Act was based on none or improper evaluation of evidence before the trial court and this court has a right and indeed a duty to intervene and right the wrong resulting therefrom, as the evaluation of evidence does not involve assessment of credibility of witnesses. See Hamza v. Kure (2010) 5 SCM 89.

The appropriate section of the Act applicable to the appellants’ case is s.6 which provides as follows:

“6. Where an owner of an estate or interest in land compulsorily acquired is required to yield up possession of his estate or interest in land prior to the payment of compensation or provision of alternative accommodation as the case may be, interest at the bank rate shall be payable on the value of the estate or interest acquired (as determined pursuant to this Decree) for the period between the entry on the land and the payment of compensation…”At the acquisition of their land by the respondents, the appellants yielded possession without alternative accommodation provided for them. In my view, they are entitled to compensation as stipulated in section 6 of the Act. I resolve issue 3 in favour of the appellants.

Consequently, I allow the appeal as meritorious. The judgment of the lower Court which affirmed the judgment of the trial Court is hereby set aside. In its place, I enter judgment in favour of the appellants based on their claim in the trial Court. Respondents are ordered, jointly and severally, to pay costs assessed at N50,000.00 to the appellants.

Appeal allowed.

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SC.375/2002