Chief D. O. Ereku v. Military Governor Mid-Western State of Nigeria & Ors. (1974)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N. 

This is an appeal from the judgment of Obaseki, J., delivered at the High Court, Warri, on March 25, 1970, in which he dismissed the plaintiffs’ claims against the defendants. The plaintiffs’ claims are as follows:

“(i) A declaration that the Notice of Acquisition and the Compulsory Acquisition under the Public Lands Law of the parcel of land in Igbudu, in Warri Division by the first defendant under Mid-Western Nigeria Notice No. 294 of the 13th of April, 1966, is UNCONSTITUTIONAL, ULTRAVIRES THE PUBLIC LANDS ACQUISION LAW Cap. 105 OF WESTERN REGION, IRREGULAR AND NULL AND VOID.

(ii) An order setting aside the said acquisition under the said Mid-Western Nigeria Government Notice No. 294 of 13th April, 1966, and the said Midwestern Nigeria Government Notice No. 294 of the 13th April, 1966.”

The facts of the case are fairly straight-forward and may be summarized briefly as follows. The Government of the Mid-Western State of Nigeria purported by a notice of acquisition dated April 13, 1966, to acquire compulsorily for the public purpose absolutely land situated in Warri in which the plaintiffs claim an interest. The Notice of Acquisition reads as follows:

“Mid-Western Nigeria Notice No. 294 Public Lands Acquisition Law Chapter 105)

LAND REQUIRED FOR THE SERVICE OF THE GOVERNMENT OF MID-WESTERN NIGERIA

Notice is hereby given that the following land near Igbudu Warri in the Warri Division of the Delta Province Mid Western Nigeria is required by the Government for public purposed absolutely:

DESCRIPTION

All that parcel of land near Igbudu, Warri in the Warri Division, Delta Province, Mid-Western Nigeria containing an area approximately 50.00 acres the boundaries of which are described below.”

This Notice was dated April 13, 1966. The land in question was later leased

by the Government of the Mid-Western State (Exhibit c) “for the term of ninety nine years starting from the first day of February, 1966″. According to Clause (2)(c), the lessee undertook as follows: ‘To pay three years rent in advance on the execution of these presents provided that if the compensation awarded by a Court of competent jurisdiction or otherwise agreed by the parties concerned with the acquisition of the demised land by the Government of Mid-Western Nigeria shall exceed 486 per acre then the Lessee will pay so much additional rent in advance not exceeding two further years rent in all as shall equal the difference between 486 per acre and the amount awarded by the Court or agreed as aforesaid.” It is quite clear from this Clause that the lease was for a permanent business transaction and not a temporary arrangement between the parties. Indeed, this particular point was not disputed at the trial because “the first to third defendants contend that they took possession of the said parcel of land at the time of acquisition for a public purpose, for which purpose the land was leased to McDennott Overseas Inc., a Panamanian company, which has now been incorporated in Nigeria under the Companies Decree No. 51 of 1968 and whose objects, Le., fabrication of structures for oil industries, relates to mining industry and economic and industrial development of the Mid-Western State of Nigeria in particular and the Federation of Nigeria in general. The 1st to 3rd defendants will at the trial lead evidence to show that McDermott Overseas Inc. also employs a large number of Nigerians” The defendants in their amended statement of defence, further claimed that they were competent under the Public Lands Acquisition Law or any law to lease the parcel of land as they had done, maintaining that the lease of the land to McDermott Overseas Inc. was in compliance with the State Land Law. At the trial, counsel for the defendants also maintained that the lease in question was for a public purpose within the meaning of section 2 of the Public Lands Acquisition Law. Learned counsel insisted “public purpose” included “whatever resulted in the advantage to the public”. In any case, the learned counsel was of the view that once the acquisition notice has specified that it be for “public purpose” the matter is closed. Two other supplementary arguments of learned counsel for the defendants were that McDermott Overseas Inc. had not been joined by the plaintiffs and also that if a declaration in terms of the writ were to be granted by the trial court, it might lead to a series of hostile actions on the part of not only the present parties to the case but other persons as well. In these circumstances, the learned trial judge, in a reserved judgment, held that the acquisition notice was valid and that the aquisition itself was for a public purpose. He also held that the complaint of the plaintiffs against the lease granted to McDermott Overseas Inc. would not earn them the declaration sought and that, in any case, McDermott Overseas Inc. was not before him.

From this decision the appellants have brought this appeal. On the four grounds argued before us by Chief Williams, counsel for the appellants, the following two were argued together:

“1. The learned trial judge erred in law and on the facts in dismissing the plaintiffs’ claim having correctly held as follows:

‘The learned Senior State Counsel has urged the Court to hold that the grant of the lease to McDermott Overseas Inc. was in accordance with the public purpose for which the land was acquired because the objects stated in the Articles of Association of the Company were in consonance with the declared objectives of Government to advance the industrial and economic development of the State. This submission in untenable and cannot stand in the face of the express provisions of the Public Lands Acquisition Law. If this had been the expressed purpose on the Notice I would not have hesitated to declare the acquisition ultra vires the Public Lands Acquisition Law. ‘

Particulars of Error

The 1st, 2nd and 3rd defendants having contested the action on the footing that the alleged public purpose for which the land was compulsorily acquired was the purpose for which the same land was leased to McDermott Overseas Inc., he had no alternative but to determine the matters in issue on the basis of the defence put forward and not on any other basis which was not pleaded or relied upon by the said defendants.

2. The learned trial judge erred in law and on the facts in upholding the validity of the compulsory acquisition, which was challenged in this action when it is clear on the evidence before him that the acquisition was not made for a purpose authorised by or under section 31 of the Constitution of the Federation. ”

It was contended that the statutory power to acquire land for public purpose is contained in the Public Lands Acquisition Law, Cap. 105 of Western Nigeria, 1959 applicable in the Mid-Western State section 2 of which defines public purpose” as follows:

“Public purpose” means a public purpose as hereinafter defined insofar as such purpose relates to any matter with respect to which the Government of the Region has power to make laws, and includes

(a) For exclusive Government use or for general public use;

(b) For or in connection with sanitary improvements of any kind, including reclamations;

(c) For or in connection with the laying out of any new township or Government station or the extension or improvement of any existing township or Government station;

(d) For obtaining control over land contiguous to any port;

(e) For obtaining control over land the value of which will be enhanced by the construction of any railway, road or other public work or convenience about to be undertaken or provided by the Government;

(f) For obtaining control over land required for or in connection with mining purposes; and

(g) For obtaining control over land required for or in connection with planned rural development or settlement;

(h) For or in connection with housing estate, economic, industrial, or agricultural development and for obtaining control over land required for or in connection with such purposes. Learned counsel pointed out that, after the present action had been instituted in the High Court of the Mid-Western State, the Government there enacted the Public Lands Acquisition Law (Amendment) Edict 1972 which purported to extend the statutory meaning of “public purpose” so as to include the power of the Government “for obtaining control over land required by any company or industrialist for industrial purposes”. This Edict purports to take effect on April 6, 1972. It is, therefore, quite clear that, whatever purpose was intended to be achieved by this amendment, it could not and did not affect the present case which was already in court at the time the Edict was enacted. We think that this legislative enterprise would appear to strengthen the appellants’ case that the original section 2 of the Act did not provide an adequate basis for the defendants/respondents’ contention both in the lower court and in fact for “public purpose” within the meaning of section 2 of the Act. Chief Williams also drew attention to section 31 (2)(b) of the Constitution of the Federation 1963 which reads as follows:

“Nothing in this section shall affect the operation of any law in force on the thirty-first day of March, 1958, or any law made after that date that amends or replaces any such law and does not. . . .

(b) Add to the purpose for which or circumstances in which such property may be taken possession of or acquired.” It follows, therefore, that there is no power in the Government of the MidWestern State to modify the Public Lands Acquisition Law as a “law in force on the thirty-first day of March 1958” in so far as the amendment was designed “for the purposes for which circumstances in which such property may be taken possession of or acquired”. The purported amendment is accordingly contrary to section 31 of the Constitution of the Federation and is therefore null and void and of no effect whatsoever.

We also find ourselves in agreement with the submission of counsel for the appellants that an acquisition by the Government of the Mid-Western State for the private need of a private corporation or person is unlawful since by no stretch of the imagination can one say that the enterprises of the McDermott Overseas Inc., beneficial though it might be, can be regarded as being for “public purpose of the State”. Section 2 of the Public Lands Acquisition Law clearly contemplates acquisition for the public purpose of the State and nor any private enterprise that might incidentally be of benefit to the community or a section of it. In Alhaji Bello v. Diocesan Synod of Lagos (1973) 3 S.C. 103 at page 130, we observed as follows:

The principle on which the courts have acted from time immemorial is to construe fortissime contra proferentes any provision of the law, which gives them extraordinary powers of compulsory acquisition of the properties of citizens. In re Bowman, South Shields (Thames Street) Clearance Order, 1931, (1932) 2 K.B. 621 at 633, Swift, J., described the position thus:

‘When an owner of property against whom an order has been made under the Act comes into this Court and complains that there has been some irregularity in the proceedings and that he is not liable to have his property taken away, it is right, I think, that his case should be entertained sympathetically and that a statute under which he is being deprived of his rights to property should be construed strictly against the local authority and favourably towards the interest of the applicant, inasmuch as he for the benefit of the community is undoubtedly suffering a substantial loss, which in my view must not be inflicted upon him unless it is quite clear that Parliament has intended that it shall.’

In such cases the provisions of the Statute are read dispassionately and effect is given to the spirit and intent of the Legislation. What is required is in reality a fair and reasonable but strict construction of the Statute so what is necessarily incidental is not excluded and what is extraneous, whether manifestly or subtly, is not included. See Westminster Corporation v. London and North-Western Railway Corporation (1905) A.C. 426.”

We are of the view that it is wrong for counsel for the respondents to assume that the notice of the acquisition has by itself settled the matter by saying that it is “for public purpose absolutely”. That counsel has argued that the mere claim in the notice of acquisition that it was for “public purpose” is sufficient and no attempt should be made to go behind it in order to look at what was done subsequently. We think that the following observation of the learned trial judge is a sufficient answer:

“The public purposes for which the Government can compulsorily acquire lands are clearly defined in s.2 of the Public Lands Acquisition Law, Cap. 105, Vol.N UW.N. 1959 and does not include acquisition for the purpose of making a grant of it to a third party and the Notice having declared that it was acquired for a public purpose absolutely, I am not prepared to read any purpose outside the purposes defined in the law. The learned Senior State Counsel has urged the Court to hold that the grant of the lease to McDermott Overseas Inc. was in accordance with the public purpose for which the land was acquired because the objects stated in the Articles of Association of the Company were in consonance with the declared objectives of Government to advance the industrial and economic development of the State. This submission in untenable and cannot stand in the face of the express provisions of the Public Lands Acquisition Law. If this had been the expressed purpose on the Notice. I would not have hesitated to declare the acquisition ultra vires the Public Lands Acquisition Law. The fact that the Company has the same objectives as the Government and serves the whole Nigerian public does not bring the act of the Government in granting the lease within the definition of Public Purpose under the Public Lands Aquisition Law. There is no doubt that McDermott Overseas Inc. is a Company working with a view to earning for its members (not the Nigerian Public) and is a private person at law.”

That it is possible and even necessary to probe the notice and what was done under the notice is well borne out in Chief Commissioner, Eastern Provinces v. SN. Ononye & ors. (1944) 17 N.L.R. 142, in which it was held that the acquisition of land by the then Central Government of Nigeria in Onitsha for the purpose of granting a lease of it to a commercial company was not a public purpose within the Public Lands Acquisition Ordinance (Cap.88) Waddington, J., made the following observation:

“By no stretch of the imagination can I see how the grant of a lease to a commercial company could be brought within the range of this definition of ‘public purposes’ and no argument was attempted to show that this purpose is within the definition.

All due publicity was given to the notice of acquisition required by the Ordinance, but the notice merely states ‘for public purposes’ and I find it difficult to understand why the particular public purpose is not stated. When the matter comes into Court it has to be admitted that there is no public purpose involved at all, and the impression is liable to be conveyed, no doubt quite erroneously, that there was something ulterior in the failure to make the purpose public.”

In the present case, the learned trial judge, quite rightly in our view, gave this wise advice:

“It would be necessary in future for Notices of Acquisition in the Mid-Western State to contain the immediate specific purpose for which the acquisition is required so as to avoid the allegations levelled against the Government in this matter, that while ‘Public Purposes absolutely’ was the expressed purpose the real purpose was far from it.”

We think it strange, however, that the same learned trial judge should have later on in his judgment made the following remarks:

”Throughout the evidence adduced by the plaintiffs nothing was said to indicate that this notice was intrinsically invalid. Indeed the plaintiffs all accepted the notice of acquisition as valid and resigned themselves to the fact that the Midwestern Nigeria Government has validly acquired the land. Indeed nothing said in these proceedings has established the invalidity or unconstitutionality of the Notice and Acquisition. The learned counsel for the plaintiffs has urged this court to look beyond the Notice of Acquisition and the Certificate of Title granted to ascertain the invalidity of the Notice of Acquisition and the Acquisition. The precise point canvassed is that the illegality of the Notice is to be found in the subsequent act of the Government relating to the land, in granting the land to McDermott Overseas Inc. for a term of 99 years, an act which learned counsel contends is at variance with the declared purpose for which the land was acquired.”

For the reasons we have given, we think the learned trial judge was clearly wrong in thus holding that, in so far as the notice does not contain a declaration that the acquisition was for the purpose of granting a lease of the land to McDermott Overseas Inc., “the grant of the lease cannot and should not be read into the notice as the primary and only purpose of the acquisition”. We think it should.

Learned counsel for the appellants also canvassed the following three grounds of appeal, as grounds 3 to 5:

“3. The learned trial judge erred in law and on the facts in accepting the submission that the McDermott Overseas Inc. should have been joined as a party to the action when

(a) The plaintiffs claim no declaration against the party aforesaid;

(b) Accordingly, non-joinder of the said party cannot be regarded as fatal to the plaintiffs’ action;

(c) The point was taken at so late a stage in the proceedings that it ought not to have been entertained; and

(d) It is plain on the evidence before the court that McDermott Overseas Inc. at the material time had no title in that it was not a company incorporated in an independent country of the Commonwealth or a British possession and cannot therefore hold lands in Nigeria; in the alternative, at the time that it obtained a lease from the Government, the Government had no title vested in it.

4. The learned trial judge erred in law and on the facts in holding at page 98 lines 14-17 as follows:

‘Even if the plaintiffs had made out a case to warrant a declaration in view of the fact that such a declaration would set off a series of hostile actions and serve no useful purpose, I would refuse it.’

Particulars of Error

(i) It is a wrong exercise of the discretionary powers of the court to refuse to grant a declaration to which A, B and C are entitled on the sole ground that it will or may lead to further litigation among or between A, B, C and D.

(ii) On the facts before the court a refusal to grant the declaration claimed still leaves unresolved all disputes between or among the plaintiffs and the 4th defendant.

5. Judgment is against the weight of evidence.”

His main argument is that the learned trial judge is wrong in insisting that McDermott Overseas Inc. should have been joined by the appellants as party to the case, on the alleged authority of Ibenewaka v. Egbuna (1964) 1 W.L.R. 219. The learned trial judge however, observed that in certain exceptional cases declaratory judgments may be made where all the parties are not before the court; but he held that the present case was not one of those. We think it sufficient to say that the appellants were under no duty in the present case to join McDermott Overseas Inc. as a party since the only issue brought by the appellants before the learned trial judge was concerned with the alleged validity of the acquisition of the land in question, and that it was not an action brought in order to have the lease set aside, as was wrongly assumed by the learned trial judge. Under ground 4 learned counsels argued that the learned trial judge was wrong when he held as follows:

“Finally if, as stated by the plaintiff, it is not their intention to eject McDermott Overseas Inc., I hold that this action has been brought mainly to embarrass the Government. Furthermore it appears to me that the main purpose of this exercise is to get a declaration to start a series of actions among the plaintiffs and between some of the plaintiffs, the 4th defendant and McDermott Overseas Inc.”

We find ourselves in agreement with counsel for the appellants that the mere likelihood that the grant of a declaration might lead to a series of hostile actions cannot be sufficient reason for refusing it.

There is one point which was not raised in the argument before us but which we consider it necessary suo motu to consider in connection with this appeal. The learned trial judge, in refusing to grant a declaration because it would cause a series of hostile actions, inter partes, remarked as follows:

“Although the grant of a lease of land acquired under the Public Lands Acquisition Law is not a public purpose within the definition in the Public Lands Acquisition Law, it is permissible under the State Lands Law, Cap. 29, Vol. 2, Laws of Western Nigeria, 1959.”

It would seem to us that both counsel in the court of trial and the learned trial judge were wrong to have assumed that the mere fact that the State Lands Law grants certain powers of disposition to the government, including the power to grant leases, it is unnecessary to consider whether or not the notice and power of acquisition under the Public Lands Acquisition Law are valid eo limine. We think that the two issues are distinct and separate, and that the statutory powers under the State Lands Law do not arise and are not exercisable unless and until the purported acquisition under the Public Lands Acquisition Law has validly vested the ownership of the land in dispute in the Government. Mr. Azomani, learned counsel for the respondents, argued in reply that the learned trial judge was right in holding that the acquisition by the Mid-Western State Government was valid, since according to him, section 2(a) of the Public Lands Acquisition Law is in the respondents’ favour because the acquisition was for exclusive government purpose. We are unable to accept this submission for the various reasons, which we have already given above. Again, when we drew his attention to the fact that the lease granted by the Mid-Western Government to McDermott Overseas Inc. was backdated to February 1, 1966, although the acquisition notice itself was made on April 13, 1966, learned counsel agreed with our suggestion that the purported lease had thereby come into existence even before the land in question could be deemed to have vested in the Mid-Western State Government as landlord. Now, in the law of landlord and tenant, for a term of years to be validly created, both the beginning and the end must be definite; otherwise it is not a term at common law (See National Bank of Nigeria Ltd. v. Compagnie Frassinet (1948) 9 N.L.R The question then arises as to whether the purported lease by the Mid-Western State Government to McDennott can be regarded as a valid lease since its commencement date is now shown to be uncertain and, a fortiori the end of the 99-year term is to that extent also uncertain. As we are not called upon to decide the matter of the validity of the lease, we say no more about it here beyond pointing out how irregular the whole exercise of its assume statutory powers by the Government of the Mid-Western State has been throughout the transaction.

Mr. Ayoola, learned counsel for the fourth defendant/respondent. submitted that the acquisition in question is valid under the Public Lands Acquisition Law Cap. 105, section 2(b) and that the various respondents, including the fourth. were claiming under this particular subsection. Learned counsel ingeniously argued that section 2(h) was not part of the law when the Ononye’s Case was decided in 1944 and that this court has a free hand in determining the expression ‘public purpose’ afresh. He pointed out that section 2(h) was added to section 2(aHg) of the Public Lands Acquisition Law. Cap. 105 by the Western Region Law No.9 of 1957. There would at first sight appear to be some force in this submission until one looks at the impissima verba of section 2(h) which reads as follows:

“Public purpose” means a public purpose as hereinafter dermed insofar as such purpose relates to any matter with respect to which the Government of the Region has power to make laws. and includes-

(h) For or in connection with housing estate, economic, industrial or agricultural development and for obtaining control over land required for or in connection with such purposes.

When carefully considered. it will be found that the additional powers mentioned in this subsection are to be read in pari materia with the foregoing subsections of section 2, particularly in the light of the over-riding consideration that all of these undertakings are required to be by the Government itself for the “public purpose of the State”; so that the Government should not be an agent for others in respect of establishing housing estates and the other purposes enumerated in section 2. In this connection, additional force is added to this argument by reference to sections 3(1) and 5 of the Public Lands Acquisition Law. Cap. 105, which speak again and again of the “public purpose of the State”. For the foregoing reasons, we allow this appeal and set aside the judgment of Obaseki, J., in Suit No. W/58/69 delivered at the Warri Court on March 25. 1970. including the order as to costs. We declare that the notice and purported acquisition of the parcel of land at Igbudu in the Warri Division of the Mid-western State by the first defendant under the Mid-Western Nigeria Notice No. 294 of April 13. 1966. under the Public Lands Acquisition Law. Cap. 105 of Western Nigeria applicable in the Mid-Western State is unconstitutional, ultra vires and void. We also hereby declare the Public Lands Acquisition Law (Amendment) Edict, 1972. unconstitutional, ultra vires and void.

The appeal therefore, succeeds and is hereby allowed. We make the following orders:

(a) That the judgment of the High Court, Warri, in Suit No. W/58/69 (including costs) delivered by Obaseki, J., on March 25, 1970, be and is hereby set aside;

(b) That judgment be and is hereby entered for the appellants in terms of their writ;

(c) That costs be awarded to the appellants as follows:

(i) N105 against the 1st, 2nd and 3rd respondents as costs in the lower court and N190 as costs in this Court, and

(ii) N105 against the 4th respondent as costs in the lower court and NI90 as costs in this Court.

And that this shall be the judgment of the Court.

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SC.100/1971