Chief David Onotsuoran Ereku & Ors V. Military Governor, Mid-western State Of Nigeria & Ors (1977)
LawGlobal-Hub Lead Judgment Report
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 at Igbudu, in Warri Division by the first defendant under Mid-Western Nigeria Notice No. 294 of the 13th of April, 1966, is UNCONSTITUTIONAL, ULTRA VIRES THE PUBLIC LANDS ACQUISITION 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 Mid-Western Nigeria Government Notice No. 294 of the 13th April, 1966.” The facts of the case are fairly straight-forward and may be summarised 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 purposes absolutely: DESCRIPTION All that parcel of land near Igbudu, Warri in the Warri Division, Delta Province, Mid-Western Nigeria containing an area of 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 E486 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 E486 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 McDermott Overseas Inc., a Panamanian company, which has now been incorporated in Nigeria under the Companies Decree No. 51 of 1968 and whose objects, i.e., fabrication of structures for oil industries, relates to mining industry and economic and industrial development of the Mid-Western State 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 that “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 was 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 the circumstances, the learned trial Judge, in a reserved judgment, held that the acquisition notice was valid and that the acquisition 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. Of 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 on and 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 is 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 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 has 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
Other Citation: (1974) LCN/1867(SC)