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Chief Sam Warri Esi Vs The Chief Secretary To The Federation Of Nigeria & Ors (1973) LLJR-SC

Chief Sam Warri Esi Vs The Chief Secretary To The Federation Of Nigeria & Ors (1973)

LawGlobal-Hub Lead Judgment Report

UDOMA, J.S.C

The proceedings in these two matters – Suits No. W/121/57 and No. W/41/57 – in the Warri High Court of the Mid-Western State were separately commenced by originating summons dated 19th July, 1957, and 4th February, 1957, respectively. As the land involved in both suits was required for public purposes, the proceedings were instituted pursuant to the Public Lands Acquisition Act Cap. 185, Vol. V, Laws of Nigeria, 1948, by the then Chief Secretary of the Federation of Nigeria for the determination of the questions hereunder set forth.

A. In respect of Suit No. W/121/57:

“1. The persons entitled to the land situated at Igbudu in Warri District of the Delta Province of the Western Region of Nigeria and described in a notice dated 16th October, 1956, a copy whereof is attached hereto, and
2. The amount of compensation payable therefor.”
It was then stated that the Governor General was willing to pay as compensation the sum detailed below.

“As rent for the term of 99 years for which the land has been acquired the sum of 131 pounds:12:6d.”
The summons was endorsed for service on the under-mentioned claimants.

(1) The Olu of Warri on behalf of the Itsekiri Community, Warri;
(2) Chief Sam Warri Esi on behalf of Igbudu Community, Warri;
(3) Chief Ogedegbe – Warri.
The land to be compulsorily acquired was in the said summons described as “all that parcel of land at Igbudu in the Warri Division, Delta Province, Nigeria containing an area of approximately 5.264 acres.” The boundaries whereof were therein fully described.

B. In respect of Suit No. W/41/57:
“1. The persons entitled to the land situated at Igbudu in Warri District of the Delta Province of the Western Region of Nigeria and described in a Notice dated the 15th day of February, 1956, a copy whereof is attached hereto, and
2. The amount of compensation payable therefor.”
It was therein also stated that the Governor General was willing to pay as compensation the sum detailed below in so far as the sums are relevant to the appeal before this court. The sums were:-

“(a) As rent for the term of 99 years for which the land has been acquired, the sum of 341pounds:16:6d per annum.
(b) For crops and economic trees upon the land acquired, the outright lump sum of 180:11:0d.
(c) In respect of the building erected upon that part of the land acquired which was demised by a lease dated 11th December, 1948, between Ogbenejebor and others of the one part and Adogbeji Salubi of the other part, the outright lump sum of 3,880pounds.
(d) In respect of extinction of the residue of the leasehold term created by the lease cited in sub-paragraph (c) above, the outright lump sum of 1, 210pounds.
(e) In respect of extinction of the residue of the leasehold term created by a lease dated 16th March, 1953, and made between Chief Sam Warri Esi and others of the one part and Frederick Oritseatsegban Esiri of the other part, the outright lump sum of 587:10:9d.
(f) In respect of the reversion to the land covered by the two leases recited in sub-paragraphs (c) and (e) above, the outright lump sum of 99:11: being the present value, at 6% compound interest, of a reversion to:

(i) An income in perpetuity of 80:13:6d commencing in 52 years time and (ii) An income in perpetuity of 52 pounds:10:0d commencing in 57 years time.”

The summons in this case was this time endorsed to be served on the following claimants:

(1) The Olu of Warri on behalf of the Itsekiri community, Warri;

(2) Chief Sam Warri Esi on behalf of the Igbudu Community, Warri;

(3) Chief Ogedegbe, Warri;

(4) Mr. A. Salubi, Warri; and

(5) Dr. Esiri, Warri.

Thus in both suits the claimants are the same save that in Suit No. W/41/57 the names of Mr. A. Salubi and Dr. Esiri also appear but this is because of their houses already erected on different portions of the land to be acquired. For the purpose of this appeal they will be treated as of no account and will hereafter disappear as their claims appear already to have been satisfied.
The land acquired, although comprised of two separate pieces or parcels, form the same continuous piece of land surface. Both parcels contain 24.265 acres made up of 5.265 and 19 acres respectively. The piece containing 5.265 acres has been described as an extension of the piece comprising 19 acres, whereon since the acquisition thereof a Marine Dock Yard has been established.

By orders of court in both cases, the Itsekiri Communal Land Trustees were substituted for the Olu of Warri; and Aristotle Musa Ereku and Okoro Ogedegbe were together also substituted for Chief Ogedegbe on behalf of themselves and as representing the Ogisi family of Odion, Warri, as claimants respectively. In consequence of these changes, the names of claimants then read:

(1) The Itsekiri Communal Land Trustees;

(2) Chief Sam Warri Esi on behalf of the Igbudu Community, Warri and

(3) (a) Aristotle Musa Ereku and
(b) Okoro Ogedegbe on behalf of themselves and as representing the Ogisi family, Warri.

For convenience the Itsekiri Communal Land Trustees and Chief Sam Warri Esi will respectively hereafter in this judgment be referred to as the first and second claimants.

Pleadings in the normal acceptation of the term were not filed but, in obedience to orders of court made in that behalf, statements of interest which took the form and place of pleadings and were treated as such were filed and delivered.  In due course, both suits proceeded to trial and were tried separately by the same judge and, as was to be expected, in each case a separate judgment was delivered.

In both judgments, Obaseki, J., held in substance, inter alia, that the two pieces or parcels, the subject matter of the two suits, form part of the land in the effective control and possession of the “Agbassa Community of Igbudu,” of which the second claimants are members; that the Agbassa community qua community are tenants under native law and custom and subject to the overlordship of the Olu of Warri; that their tenure is that of occupiers under native law and custom under the overlordship of the Olu of Warri;” and that it is only the Olu of Warri now replaced by the Itsekiri Communal Land Trustees, the first claimants, that is, “that have the right to and can convey” (to any purchaser) “the legal estate in the land either for a term of years or in fee simple.”
Having reached that conclusion, the learned trial Judge declared in effect that both the first and second claimants are jointly entitled to the rent offered to be payable by way of compensation for the land, the subject matter of the acquisition, and accordingly entered judgment in favour of the first and second claimants. He apportioned the compensation in each case between the first and second claimants in the proportion of 1/3rd to the first claimants in whom he held the legal estate and the radical title reside and 2/3rds of the compensation to the second claimants as the community in possession of the land prior to, and whose possession has been lost in consequence of the acquisition.
In so apportioning the compensation, the learned trial Judge appeared to adopt and follow as precedent the ratio or proportion of apportionment or distribution which was made by the Governor of Western Nigeria in Suit No. W/22/56, because he considered that method of apportionment a fair and useful guide. For according to him, the court (Onyeama, Ag., Judge, as he then was) in referring the compensation in Suit No. W/22/56 to the Governor of Western Nigeria for apportionment between the parties entitled thereto, had intended thereby that the appropriate share of such compensation to which each community was entitled be properly determined and settled so as to avoid the apportionment and distribution of the same being left to the customary absolute and unfettered discretion of the Olu of Warri. At the same time the learned trial Judge in fact rejected in toto the evidence given on behalf of the first claimants that the apportionment of compensation in  that ratio was ordained by the ancient native law and custom of the Itsekiri people. Indeed, he found that the existence of such a custom was not established on the evidence. On this issue, to put it in his own words, he said:-

“The 1st claimants have, through their 3rd witness and third claimants tried to establish the customary share of compensation due to the Olu of Warri. I admit that I am not impressed by the evidence of custom on the point.

Beyond this there is no evidence that the alleged custom was pleaded and proved in court in previous cases.”

All the same the learned trial Judge ordered the compensation payable in each case to be paid to the first claimants for distribution between the parties entitled thereto in the manner and in accordance with the ratio or proportion thus determined by him.

The second claimants are aggrieved by the decision of the learned trial Judge in both cases and have therefore brought these appeals. The substance of their complaints against both judgements as formulated in the relevant grounds of appeal to be considered hereafter will emerge in this judgment.

As already stated, the land the subject matter of the two acquisitions is not only adjoining or contiguous, but is a continuous piece or parcel of the same tract of land. The learned trial Judge found, in his judgment, that Suit No. W/121/57 relates to compensation in respect of “5.265 acres extension to the land acquired” in respect whereof Suit No. W/41/57 was instituted. The only parties vitally concerned and directly to be affected by the results of these appeals are the first and second claimants. Furthermore, it is common ground that the judgements in previous suits pleaded and relied upon by both parties in the suits, the subject matter of these appeals, concern and affect the whole of the land, the subject of previous litigations, of which the present land in dispute constitutes only a portion; and that some of the relevant issues raised and seriously contested in both suits appear to have been similarly vigorously canvassed and determined in previous litigations between the first and second claimants and their privies. Consequently, by consent the two appeals were consolidated and heard together.

We now proceed to consider the relevant grounds of appeal in both appeals together and the submissions addressed to us in relation thereto and in support thereof.

Dr. Odje, learned counsel for the first claimants opened his submissions by emphasising rather firmly that the issues involved in the two appeals are identical. He postulated that those issues could best be expressed in the form of tightly worded questions as follows:-
(1)   Are the first claimants entitled at all to any compensation in the case of any acquisition by the Government of the Federal Republic for public purposes under the Public Lands Acquisition Act (Now Cap. 167, Vol. V of 1958) of the land the subject matter of these appeals, having regard to the provisions of the Act and the fact that the second claimants were exercising at the material time family as distinct from communal rights over the land acquired

(2) Assuming that the first claimants are entitled to some compensation (which is denied) in the circumstances mentioned above, what should be the basis of the apportionment of such compensation; and was the learned trial Judge right in law to have based his decision on the ratio of apportionment fixed by the Governor in Suit No. W/22/56 instead of referring the matter afresh to the Federal Government to enable the latter to exercise its power under Section 23 of the Public Lands Acquisition Act as was done in Suit No. W/22/56

Learned counsel then stated that he would endeavour in his submissions to satisfy the court as to the correct answers to these two important and complex questions. He drew the attention of the court to the Trust Instrument of the first claimants, Exhibit B in the proceedings. He pointed out that the first claimants are a statutory body created under the Communal Land Rights (Vesting in Trustees) Law of Western Nigeria Cap. 24, Vol. I, and contended that the effect of the Trust Instrument, Exhibit B, made as it was under and by virtue of Section 2 of the Law, is to exclude from the powers of the trustees all family lands, or all lands held under family rights the power of the first claimants being thereby restricted to communal lands only.

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It was also contended by learned counsel that since the land in dispute which was acquired by Government is not communal land, nor land held under communal right but the property of Igborodje family, which is a family or quarter in Igbudu where the land is situate, the first claimants are not entitled to any part of the compensation payable in respect thereof, irrespective of the right of the Olu of Warri, the predecessor-in-title of the first claimants; that the learned trial Judge misdirected himself in failing to draw a distinction  between communal land as such and land held under family right and therefore came to a wrong conclusion when he held that the first claimants were entitled to share in the compensation payable in the proportion of 1/3rd to 2/3rds share thereof, and that that failure has occasioned a miscarriage of justice.

This is an important contention and requires careful examination. It is clear from the statement of interests filed that the second claimants in both suits were at first claiming the land as absolute owners and not as customary tenants of the Olu of Warri of which the first claimants are successors-in-title. This averment is to be found in paragraphs 3 and 4 of their statement of interests filed in Suit No. W/121/57 which reads as follows:-

“3. The second claimant and his ancestors have from time out of memory been owners in undisputed possession without let or hindrance of all land in Igbudu including the portion now affected by this suit. The said second claimant and his people have always farmed on the land, had, planted and maintained crops and economic trees upon it.

4. As the accredited representative of Igbudu community the second claimant is entitled to the receipt of the compensation or rent payable by Government on the said land and he is in a position to create the legal term in favour of the Government.”

It is clear from the averments in paragraphs 3 and 4 of the statement of interests set out above that the second claimants did not acknowledge the overlordship of the Olu of Warri over the land occupied by them.  The second claimants were, on the other hand, more cautious in their statement of interest filed in Suit No. W/41/57 where they pleaded in paras. 3 and 4 in the following terms.

“3. The second claimant and his ancestors have from time immemorial been in undisturbed possession and occupation of all lands situate in Igbudu. He and his people have always farmed on the land and had planted crops and economic trees.

4. The second claimants of the land has by Government’s acquisition been dispossessed and thrown out of occupation and been deprived of the enjoyment of farming facilities, crops and economic trees.”

In paragraph 5 of the statement of interests in Suit No. W/121/57 they however pleaded in the alternative that if the first claimants were entitled to anything at all their share should be nominal and based on the decisions in Suits No. W/44/1941- Chief Commissioner, Western Provinces v. Ginuwa II, the Olu of Itsekiri and Sam Warri Esi and another;  and No. W/3/1949 – the Secretary, Western Provinces v. Olu of Itsekiri and 8 others.

It is also worthy of note that nowhere throughout their pleadings was the issue of the competency in law of the first claimants as a statutory body to receive compensation ever raised; nor was it denied that the first claimants are the lawful successors-in-title to the Olu of Itsekiri in so far as the allocation or alienation of land in Warri is concerned; nor indeed, was it ever specifically pleaded that Igbudu was only a family and not part of Agbassa community or that the land did not form part of the land which was in dispute between the Olu of Itsekiri, now represented by the first claimants, and the second claimants in 1926. On the contrary, on the pleadings as well as on the evidence, Chief Sam Warri Esi, as the representative of the second claimants, is described as the Eletu of Agbassa, Chief and elder of Igbudu community for whom he is the accredited representative and spokesman.

In his evidence in Suit No. W/41/57 Chief Sam Warri Esi said:-

“I am the Eletu of Agbassa. I am the eldest man (Okpako), and head of Igbudu.  One Igborodje founded Igbudu.  He was the first person to settle there. After Igborodje founded Igbudu he farmed on it. This piece of land is called Alakpa. It is in Igbudu land.”

This evidence was virtually repeated in Suit No. W/41/57 during which under cross-examination Chief Sam Warri Esi said:-

“Igborodje founded Igbudu. The 7 families of Agbassa community founded Ubomale. From there they spread out to Kpokiti, Igbudu, Ogunu and other Agbassa villages. Agbassa (Ubomale) was in existence before Igbudu.”

Before this piece of evidence, Chief Sam Warri Esi had said also under cross-examination as follows:-

“I remember that in 1926 there was a big case between Agbassa people and Late Chief Dore Numa. In that case on 18/11/29  I gave evidence. In that case Herbert Macaulay was the surveyor. I took Herbert Macaulay round to survey the land in dispute. The land in dispute in this case was included in the land surveyed by Herbert Maculay on that occasion. Ometan in Ometan v. Dore Numa case of 1926 represented all the 7 families, comprising Agharha (Agbassa) community.”

It is thus clear that in his evidence, Chief Sam Esi as the representative of the second claimants admitted that the land in dispute in the present appeal was included in the land, the subject matter of Suit No. 25/ 1926 – Ometan v. Dore Numa – (reported in 9 NLR 47), in which he himself personally not only took active part in the preparation for the trial thereof but also gave evidence as a witness at the trial.

It should also be noted that the first claimants pleaded and relied upon the judgements in that suit in their statement of interests. The case was tried in the old Supreme Court by Webber, J., and later went on appeal to the Full Court and finally to the Privy Council. It was very clearly established before the Supreme Court and the Full Court that the land then in dispute (which admittedly includes the land in dispute in the two appeals under consideration) which was in the occupation and possession of Agbassa people, which we now know includes Igbudu community, was granted to the Agbassa people under native law and custom and that the Olu of Itsekiri exercised ownership or overlordship over the said land. In other words, it was established that the radical title of the land granted to the Agbassa people was still vested in the Olu of Itsekiri on behalf of the Itsekiri people. These concurrent findings of fact were subsequently confirmed by the Privy Council which held:-

“That the question raised on appeal was purely one of fact; and that there being concurrent findings of fact by the trial, Judge and the Full Court their Lordships would apply their general rules in such cases and not interfere with the findings of fact.”

Some of the findings made in that case by Webber, J., are most illuminating and worth recalling as establishing once and for all the relationship between the first claimants, who now replace the Olu of Itsekiri (later of Warri) in so far as the question of the acquisition and control of land in the area is concerned and the second claimants as members of the Agbassa community. In his judgment Webber, J., said:-

“Now it has been very clearly established that the defendant is successor of the Olu of Itsekiri and the paramount chief of the Jekris has exercised ownership over most of the lands at present claimed by this Agbassa from the beginning of this century and the cases which have come before these courts show that as the Olu of the Jekris the defendant has always exercised sovereign rights over all these lands leases granted by the defendant to Government of Ogbijo (1906), Alder, Wilkey and Pessu towns (1908) and the land adjoining Agbassa village (1911) and actual occupation by Government and the receipt of rents by the defendant with the knowledge and acquiescence of the Agbassa people, firmly established the fact of ownership of these lands by Jekris.

The particular features in this case are all in support of the contention that the Jekris are owners of the land. (a)  There are no Agbassa people in Ogbijo, Wilkey Town, Alder Town and Pessu Town. (b) the head Chief of Odion is Jekri. (c) The head Chief of Fugbe is Jekri. (d) Agbasa village is known as Bomali which is Jekri word (e) Not a single chief of the surrounding lands supports the Agbassa claim.

I am quite satisfied on the evidence, apart from any legal plea of res judicata that when the Agbassa came to Warri they were given permission by the Olu of the Jekris to settle on land which is now known as Bomali or Agbassa village and that permission was granted to them to farm on lands adjoining their village.

That from the earliest times and during recent years the Agbassa rendered service to the defendant as overlord. The present action for a declaration of title is misconceived. If 9 years ago their occupation of their village and farm lands were interfered with, and if assistance was refused them by their overlord, an action that under native law and custom they were entitled to remain in occupation without in any way questioning the overlordship of the defendant might have been maintainable and the principles laid down in the 1921 case as to the position of strangers who were granted land by the Olu might be applied.

I do not regard the evidence before me as satisfactory. The evidence does not warrant a declaration of title. On the contrary the evidence negative ownership by Agbassa people of the land known as Ogbe Ijaw. Alder town, Wilkie town, Pessu town.

As to Agbasa, Odion, and Fegbe, no court could deny the right of Agbasa to occupy same according to native law and custom provided the overlordship of the Olu of the Jekris was recognised.”

These findings were from time to time re-echoed in subsequent cases between the parties and their privies. In Suit No. W/44/1941 John Jackson, Ass. Judge, (as he then was), on this point of ownership of the land in dispute said:-

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“There is no question, I think, that all claimants admit that the land, now the subject of this action, formed a part of that land the subject of the action Ometan v. Chief Dore Numa and, that this action proceeded upon that basis.

“Now as between the claimants before me, all of whom were either parties or successors in title to the parties in the case of Ometan v. Dore Numa these parties are estopped from denying those facts which were in issue and which were material to the finding of the court in that case.
“In other words the estate held by the people of Agbassa, in the lands at Agbassa of which the present land forms a part, is an equitable estate conditional upon the recognition of the legal estate in the land being vested in the Olu of the Jekris, and in my view that judgment is indivisible and does decide, once and for all, as between these parties, their legal relationship regarding the land now in dispute since the determination of the issue of fact as to who was the land owner was an essential preliminary to the finding of fact as to the terms upon which the Agbassa people might occupy the land.”

In Suit No. W/3/1949 this was what Ademola, Ag. Judge, (as he then was), said:-

“It is common ground among the claimants that the land in question is in Agbassa district in Warri. It is also admitted that this is part of the land to which judgment in the celebrated case now known as Agbassa land case (Ometa v. Chief Dore Numa, II NLR 19) applies. The 2nd and 3rd groups of claimants therefore do not dispute the 1st claimants claim to the land. In other words, they recognise the overlordship of the Olu of Itsekiri who is the virtual owner of the land in trust for the Itsekiri people, but they claim equitable interest in the land in accordance with the judgment in Ometa v. Chief Dore Numa (above).”

In view of these unimpeachable recurring findings by courts of competent jurisdiction, there can be no question that the Agbassa, including the Igbudu, are customary tenants of the first claimants. Their tenure of the land occupied by them is therefore subject to the incident of customary tenancy. It is foolhardy on the part of the second claimants in the face of such overwhelming evidence and the findings of successive courts throughout the years to seek from time to time as soon as there is notice of acquisition and the prospects of a windfall like manna from heaven to relitigate issues which have been clearly determined and laid to rest against them by persisting in the groundless assertion that the people of Agbassa are the absolute owners of the land in dispute, which has been conclusively established as forming a part of the land, the subject matter of Suit No. 25 of 1926.
The contention of the learned counsel for the second claimants, however, is that even if the land was granted to the second claimants under native law and custom by the Olu of Itsekiri, the first claimants, being a statutory body, are not competent, that is, they have not the legal capacity to receive any share of the compensation which would normally have gone to the Olu of Warri, since the land, the subject matter of the acquisition, was family land, held under native law and custom. The answer to this contention is very simple. In the first place, as already observed, it was neither pleaded nor in the oral testimony was it established to the satisfaction of the learned trial Judge that the land involved in the instant appeal was family land. The cases were never fought on that footing in the court below and the first claimants cannot be heard in this court to make a case different from how they presented their case in the High Court.
In any event, the learned trial Judge found as a fact that the second claimants are Agbassa people in Igbudu quarter.
In the second place, the second claimants are lawful successors in title to the Olu of Warri in whom was originally vested on behalf of the Itsekiri people the legal estate in the land acquired. The power of the first claimants in this respect has been well and clearly defined in the Instrument entitled “The Warri Division (Itsekiri Communal Lands) Trust Instrument” granted pursuant to Section 5(1) of the Communal Land Rights (Vesting in Trustees) Law Cap. 24, vol. 1 Laws of Western Nigeria, 1959, by virtue whereof the first claimants become the only authority capable and competent by law either to convey or transfer either for a term of years or in fee simple the legal estate in the land in dispute to a purchaser.
The provisions of Section 5(1) of the Communal Land Rights (Vesting in Trustees) Law, 1958, are as follows:-
5(i)  “There shall be vested in the trustees by virtue of this section and the trust instrument by which they are appointed and without further assurance all rights referred to in that trust instrument as communal rights.”
And Section 5(1) of the Warri Division, (Itsekiri Communal Lands) Trusts Instrument, 1959, provides:-
5(I)  “There shall be vested in the trustees by virtue of Section 5 of the law and this instrument all rights in or over land in Warri Division that are exercisable on behalf of the Itsekiri community by the Olu of Warri, either alone or in association with other persons, including (without prejudice to the generality of the foregoing) any right exercisable on behalf of the Itsekiri community by such person or persons-
(a) to demise land for a term of years;
(b) to accept surrenders of leases so granted
(c) as reversioner of any lease so granted.”

The combined effect of these provisions is that the first claimants took over the communal rights in every Itsekiri communal land in Warri Division previously vested in and exercisable by the Olu of Warri on behalf of Itsekiri community and are therefore entitled to compensation in the same way as the Olu of Warri would have been entitled thereto. This ground of appeal therefore fails.

We turn to the second and more difficult question in these appeals and this relates to the issue of estoppel and the failure of the learned trial Judge to refer the issue of apportionment to the Federal Military Government under Section 23 of the Public Land Acquisition Act. Cap. 167, Laws of the Federation of Nigeria, 1958, Vol. V. In this connection learned counsel contended that the learned trial Judge was wrong in law to have failed to adopt the ratio of apportionment of compensation established and given effect to in Suits No. W/44/1941 and W/3/1949, wherein courts of competent jurisdiction had held that the first claimants were only entitled to a nominal share of compensation payable; that, in any case, the learned  trial Judge did not properly direct his mind to the issues in controversy when he accepted the ratio of apportionment by the Governor in Suit No. W/22/1956 in the exercise of his powers under Section 23 of the Act when that matter was referred to the latter by Onyeama, Ag. Judge, (as he then was); that by accepting and acting on the ratio of the said apportionment, the learned trial Judge thereby held that the award so decreed, by the Governor created an estoppel binding on all the parties for all time and therefore committed an error in law; that the question of apportionment should have been referred by the court to the Head of the Federal Military Government to enable the latter to exercise his discretion in terms of Section 23 of the Act; and that the failure to do so amounted to a usurpation by the court of the function conferred upon the Head of the Federal Military Government by law; the effect of the omission to make such a reference has vitiated the apportionment made by the court.

In order to appreciate the important issue involved in this aspect of the appeals, it is necessary, we think, to summarise briefly the circumstances which led to the reference which was made by the court in Suit No. W/22/56 and which resulted in the apportionment between the parties in the ratio of 1/3rd to 2/3rds respectively.

By Western Region Notice No. 166 of 3rd March, 1955, issues pursuant to Public Lands Acquisition Ordinance Cap. 185, the then Government of Western Nigeria notified its intention to compulsorily acquire for public purposes a piece of land described in the said notice as situate and lying in Egbudu (Igbudu), Warri, in the Warri Division, Delta Province. There then arose a dispute as to those entitled to receive compensation. The matter was referred to the court for determination.

The principal contestants for compensation before the court were the Olu of Warri, whom the learned trial Judge described in his judgment as the Head Chief of the Itsekiris and as the first claimant; and Chief Sam Warri Esi described as the second claimant and the representative of the Agbassa people. There was a third claimant described as the representative of a quarter of Agbassa.
The learned trial Judge, in his judgment, held that compensation for the land acquired  was payable to the first claimant as the Head Chief of the Itsekiri community, the land owners but that the Agbassa, including Ubomale quarter, were entitled to compensation for the destruction of their equitable right of possession of the land so acquired. Having found that the Olu of Warri was a recognised Head Chief, the learned trial Judge invoked Section 23 of the Public Lands Acquisition Ordinance, the provisions whereof appear hereunder, taking the view that the proportion of the compensation payable to the Agbassa people by the first claimants therein was a matter for the Governor of Western Nigeria to decide. On 29th December, 1956, he therefore referred the matter to the Governor for decision.

Section 23 of the Public Lands Acquisition Ordinance under which the court purported to exercise this power provides:-

“Where any consideration or compensation shall be paid to a recognised head chief in respect of any lands which are the property of a native community, such consideration or compensation shall be distributed by him among the members of such community or applied or used for their benefit in such proportions and in such manner as the Governor generally shall approve.”

By a letter dated 8th October, 1959, the Commissioner of Lands conveyed to the Provincial Lands Officer the decision that the Governor of Western Nigeria had apportioned the compensation payable (in accordance with the judgment of the High Court in Suit No. W/22/56) in the proportion of one-third to the Olu of Warri, representing the Itsekiri community, and two-thirds to Chief Sam Warri Esi, representing the Urhobos. The decision was in due course communicated to the parties concerned who readily accepted the same.

Now the pith and substance of the complaint by the second claimants in these appeals is that the learned trial Judge, having rejected the evidence of the first claimants that the apportionment of the compensation in the ratio of 1/3rd to 2/3rds was ordained by native law and custom of the Itsekiri people was wrong in law to have adopted and followed the decision of the Governor as set out in the letter herein referred to, thereby holding that the said decision in regard to the issue of the apportionment of the compensation created an estoppel per rem judicatam.

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We do not think that the latter part of the submission as regards the issue of estoppel is a correct representation or interpretation of the judgments of the learned trial Judge in the cases on appeal, nor do we think that the submission in this respect is sound. The decision of the Governor of Western Region of Nigeria as regards Suit No. W/22/56 cannot possibly create an estoppel per rem judicatam, in all the circumstances of the cases on appeal before us, because, in our view, each case of acquisition must be considered on its merits and on its own facts.

It is elementary that to constitute estoppel per rem judicatam certain essential conditions must be satisfied. In this connection Lord Selborne in his judgment in R. v. Hutchings (1818) 6 QBD 300 at p. 304 quoting from the judgment of De Grey, CJ., in the Duchess of Kingston’s case (1776) 3 EAST PC 468, said:-

“There must be a lis inter partes in which the point relied on for establishing the estoppel was not merely incidentally, or collaterally, discussed and litigated, but was fundamental to the conclusion reached by the court. The court must be one of competent jurisdiction that has seising of the case for the purpose of reaching a final decision inter partes, though it may be a private tribunal such as an arbitrator whose forum is a domestic one constituted by the parties themselves.”

The above passage to which we were referred by learned counsel was quoted with approval by Lord Hamsworth, MR., in Inland Revenue Commissioner v. Sneath As Committee of A Lunatic (1932) ALL ER (Reprint) 739 at p. 745.

In Hoystead v. Taxation Commissioners (1926) AC 155 at p. 170, Lord Shaw said:-

“If in any court of competent jurisdiction a decision is reached, a party is estopped from questioning it in a new legal proceeding. But the principle also extends to any point, whether of assumption or admission, which was in substance the ratio of and fundamental to the decision.”

The points which need special emphasis in the above question is that the principle of estoppel per rem judicatam only applies to a decision of court of competent jurisdiction.

In Attorney General for Trinidad and Tobago v. Eriche (1893) AC 518, Lord Hobhouse, in delivering the judgment of the Privy Council said at p. 522:-

“It is hardly necessary to refer at length to authorities for the elementary principle that in order to establish the plea of res judicata, the judgment relied on must have been pronounced by a court having concurrent or exclusive jurisdiction directly upon the point. In the Duchess of Kingston’s case which is constantly referred to for the law on this subject, it is laid down that in order to establish the plea of res judicata, the court whose judgment is invoked must have had jurisdiction and have given judgment directly upon the matter in question, but that if the matter came collaterally into question in the first court, or were only incidentally cognizable by it, or merely to be inferred by argument from the judgment, the judgment is not conclusive.”

Now it cannot be said that the decision of the Governor in apportioning the compensation because the matter was referred to him incidentally by the court, that that apportionment can by any stretch of the  imagination form part of the judgment of the High Court. We think that Dr. Odje was right in submitting that the apportionment cannot constitute an estoppel per rem judicatam. This was frankly and freely conceded by Chief Williams, learned counsel for the first claimants. We agree also that the action of the Governor in apportioning the compensation was a purely administrative act. It is in no sense a judicial act. Indeed, having regard to the provisions of the relevant section of the Act under consideration, it seems clear that the Governor was only exercising supervisory authority over the act of the Head Chief, whose duty it was to distribute compensation and to whom the same was payable in the first instance. The intention of the legislature in investing such a power or imposing such a duty on the Governor, we entertain no doubt, is to ensure fair play, even- handedness and justice, the Governor playing the part of a fairy god-father for the protection of the weak.

The question then arises, did the learned trial Judge treat the apportionment as having created estoppel per rem judicatam between the parties We think not. In any case, it would have been incompetent for him to do so, because res judicata was nowhere pleaded by the first claimants whose case was based entirely on native custom, which the learned trial Judge found not to have been established. We are satisfied that the Governor, by apportioning the compensation as he did, was doing so benevolently for the protection of the second claimants, in view of the findings by the learned trial Judge that, in matters of apportionment the discretion of the first claimants was unfettered under native law and custom.

The learned trial Judge was also criticised for failing to refer the matter of apportionment to the head of the Federal Military Government to enable the latter to exercise his powers under Section 23 of the Act. We do not think this criticism is justified at all. It is based on a misreading of the provision of the Section.

In our view, there is no jurisdiction vested in the Governor or the Head of State to apportion the compensation between the parties entitled thereto. All that the law requires the Head of the State to do is to approve of the distribution or the application of such compensation among those thereto entitled where such compensation is payable to a community with a recognised Head Chief. There is no power in the Governor or the Head of State to undertake the actual apportionment or distribution of the compensation. The duty imposed upon the Head of State is that of approval. The authority vested with the power to do the actual apportionment or distribution is a recognised Head Chief, and when he does so, he is not thereby engaged in adjudication, still less would the Head of the Federal Military Government when he exercises his supervisory power over the Head Chief. No question of adjudication or jurisdiction arises as the power exercisable by the Head of the Federal Military Government must be by its very nature administrative for the protection and benefit of the members of the community concerned as against the caprices of a  Head Chief.

Another criticism of the learned Judge was that he preferred the apportionment in Suit No. W/22/56, which favoured the first claimants, to the ratio or proportion of apportionment of compensation established by the decision of Jackson, Ag. J., (as he then was), in Suit No. W/44/1941 and by Ademola, Ag. Puisne J., (as he then was), in Suit No. W/44/1949 as well as the contents of the Deed of Lease dated 28th December, 1937, between Agbassa community and the Synod of the Diocese of the Nigeria registered as No. 6 at p. 6 in Volume 526 of the Land Registry, Lagos, in which the first claimants’ predecessor-in-title was declared to be entitled only to a nominal compensation, and that the learned trial Judge was wrong to have ignored such declaration and the ratio or proportion of apportionment which followed the declaration.

At first sight where would appear to be some justification for this complaint, but a closer examination discloses that, in principle, there was no departure from the fundamental decision of the court in both cases. Any variation is more apparent than real. It is one of degree. The decision of the courts in both cases virtually repeated Webber, J.’s decision in Suit No. 25/1926 on the principle of stare decisis. The fundamental point established by the decision in both cases was that the second claimants, that is to say, the people of Agbassa, were tenants under native law and custom of the predecessor-in-title of the first claimants, that the former were entitled to remain in possession of the land granted to them so long as they recognised the overlordship of the predecessor-in-title of the first claimants, and that that being so, since as a result of the acquisition the second claimants were going to lose their farm lands, the bulk of the compensation payable therefor in respect of the land acquired should go to the second claimants, the first claimants being entitled to only a nominal share of such compensation as titular owners. Both judgements differed, however, in the actual interpretation of what constitutes nominal share of compensation, that is to say, in the ratio or proportion of apportionment or distribution of the compensation between the first and second claimants.

In Suit No. W/44/1941 John Jackson, Asst. J., apportioned the compensation as follows:-

(a)   5pounds to Ejenavbho for the loss of his farms;

(b)   15pounds to the Agbassa community for loss occasioned by the severance of their communal land; and

(c)   1pound as tribute payable to the Olu of Itsekiri,
whereas in Suit No. W/3/1949, apportionment by Ademola, Ag. PJ., was in the following terms:-

(a)   2.5s per annum to Udumebraye Bazum for the loss of his farm;

(b)   34pounds per annum to Ubomale quarter people of Agbassa for the loss of their communal land;

(c)   1s per annum as tribute to the Olu of Itsekiri as the virtual owner of the land.

Thus, the actual apportionment was not uniform. The only thing constant was the principle that the first claimants must take a nominal share of the compensation commensurate with the loss of customary tribute due from the second claimants to the first claimants.

In the circumstances, we do not think that 1/3rd share of the compensation awarded by the learned trial Judge to the first claimants is anything but a nominal share of which the first claimants are lawfully entitled. It is obvious that the apportionment made by the Governor is more consistent with the incident of customary tenancy. The ratio or proportion is constant, certain and regular. It has in no way departed from the principle of nominal tribute.

In all the circumstances of these appeals our answer to the second question is that the learned trial Judge was justified in accepting as a guide or basis for the apportionment of the compensation and in fact in apportioning the said compensation on the ratio or proportion of 1/3rd share to the first claimants and 2/3rds share to the second claimants. We are satisfied that this ratio or proportion is the most reasonable, fair and equitable basis for the apportionment of compensation payable in respect of the land acquired.  

The apportionment is sound in view of the fact that, on the evidence accepted by learned trial Judge, tribute in accordance with native law and custom is no longer payable by the second claimants and the legal estate in the land acquired can only legally be conveyed by the first claimants. Both appeals therefore fail. They are dismissed with costs assessed and fixed at N84.00 and N102.00 respectively to the first claimants.


Other Citation: (1973) LCN/1670(SC)

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