Controller General Of Prisons & Ors V. Elema & Anor (2021)
LAWGLOBAL HUB Lead Judgment Report
EMMANUEL AKOMAYE AGIM, J.S.C.
This appeal was commenced on 9/2/2018, when the appellants herein filed a notice of appeal against the judgment of the Court of Appeal in appeal no. CA/B/169/2006 delivered on 22/11/2017, reversing the decision of the trial Federal High Court at Benin in Suit No. FHC/CS/109/1998, refusing to award special damages to the respondents.
The notice of appeal contains one ground of appeal. With leave of Court, the notice was amended. The amended notice of appeal contains 3 grounds of appeal.
Both sides filed, exchange and adopted their respective briefs as follows – appellant’s brief and respondents brief.
The appellant’s brief raised the following issues for determination:
- Whether the judgment in respect of Suit No. CA/169/2006 was tenable due to the fact that the Federal High Court in suit No. FHC/B/CS/109/1998 lacked the original jurisdiction to entertain the suit? This issue is related to Grounds 1.
- Assuming but not conceding that appeal no. CA/169/2006 was proper and legal before the Court of Appeal, did this position still hold from the date the respondents received compensation in “total satisfaction” of the judgment debt in respect of FHC/B/CS/109/1998 to when judgment was rendered on the 22nd of November 2017? This issue is related to Grounds 2.
- Furthermore, was it not recondite for the Honourable Justices of the Court of Appeal to had awarded special damages to the respondents without averring to the findings of the Court of first instance that the evidence of PW3 was manifestly not credible yet the Court relied upon same to award special damages? This issue is related to Grounds 3.
- Whether it is proper and equitable for the 1st appellant to suffer tremendous monetary and property loss due to the failure of his various counsel to had properly custodied document evidencing payment of in total satisfaction of the subject matter and also mistakenly failed to bring the found document to the attention of the Court. This issue is related to Grounds 2.
The respondent’s brief raised one issue for determination as follows-
“Whether the Court of Appeal, considering the circumstances of the appeal is justified in its award of special damages to the respondents.” I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief.
Let me start with issue no 1.
I have carefully read and considered the arguments of both sides in their respective briefs on this issue. I will now proceed to determine the merits of those arguments.
The appellants have raised this issue for the first time at this stage of the proceedings. This is in keeping with the settled law that a challenge to the jurisdiction of the trial Court to entertain and or try a case can be raised at any stage of the proceedings even for the first time in an appeal to the Court of appeal or to this Court.
Both sides in their arguments disagree on whether the respondent’s claim for special and general damages as compensation for the 16.19 hectares of their ancestral land compulsorily acquired and occupied by the appellants and the four ancestral buildings/shrines, artifacts and other objects, crops and graves destroyed by the appellants is within the subject matter jurisdiction of the Federal High Court.
Learned counsel for the appellants relying on Section 230 of the Constitution of the Federal Republic of Nigeria 1979 as amended by Constitution (Suspension and Modification) Decree No. 107 of 1993 and the judicial decision of Adetayo v Ademola SC.229/2004, argued that since the suit was in respect of land, it was not within the subject matter jurisdiction of the trial Federal High Court.
Learned counsel for the respondents, relying on KANADA V GOVERNOR OF KADUNA STATE (1986) 4 NWLR (PT. 35) 364, argued that any Act of the National Assembly that purports to oust the jurisdiction of a High Court to inquire into the compensation to be paid for land was unconstitutional and void, that by Section 230 of the 1979 Constitution, the suit was rightly brought to the Federal High Court as it seeks redress against the agencies of the Federal Government and claims for damages as compensation for the compulsorily acquired land based on the Land Use Act.
Let me now determine the merits of these arguments of both sides.
Let me start with the consideration of the argument of learned counsel for the appellant that Section 230 (1) of the 1979 Constitution as amended by Decree 107 of 1993 did not give the Federal High Court the subject matter jurisdiction to entertain this case that was commenced on 16th July, 1998, when Section 230 of the 1979 Constitution as amended was the prevailing law that determined the subject matter jurisdiction of the Federal High Court. I have carefully read and considered the said Section 230(1) of the 1979 Constitution as amended (which is in pari materia with Section 251(1) of the 1999 Constitution). In Subsection (r) it reads thusly-
“any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
The Proviso to Section 251(1) reads thusly-
“Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment law or equity.”
It is clear from the entire tenor of the respondent’s amended statement of claim that their suit challenged the validity of the decision of the appellants who are agencies of the Federal Government in refusing to pay their compensation for the 16.19 hectares of their ancestral land that the appellants compulsorily acquired and occupied and the ancestral buildings/shrines, artifacts, crops and graves destroyed in the process and expressly claimed for special and general damages as compensation for the said compulsory acquisition of their land and destruction of their properties thereon. It is obvious from the case of the respondents at the trial, particularly the final address of their counsel, that their claim is based on the provision of the 1979 Constitution that guarantees their fundamental right to be paid compensation for the compulsory acquisition of their land and destruction of their properties. The cause for this action and the reliefs claimed for therefore fall within the subject matter jurisdiction of the trial Court given to it by Section 230(1) (r) of the 1979 Constitution and the Proviso thereto.
The decision of this Court in Adetayo v Ademola (supra) relied on by the appellants to argue that the subject matter of this case is not within the jurisdiction of the trial Court is not applicable here as its relevant facts and issues determined are clearly distinguishable from the relevant facts and issues to be determined here. In the precedent case, the primary relief claimed for in the trial Federal High Court was for declaration of title to Certificate of Occupancy of various plots of land, possession of the plots of land and injunction restraining further interference with plaintiffs occupation of the plots of land. It is for this reason that this Court in Adetayo v Ademola (supra) held that nothing in Section 251(1) of the 1999 Constitution specifically conferring jurisdiction the Federal High Court over causes or matters concerning disputes of title to land. Part of the exact text of our decision in that case, reads thusly: “There is nothing in Section 251 of the 1999 Constitution (as amended) (or Section 230 of the 1979 Constitution, amended) that confers jurisdiction on the Federal High Court on causes or matters concerning land disputes, although the section states that the National Assembly may confer additional jurisdiction to the Court, there is no indication that such Act of the National Assembly had been promulgated specifically conferring additional jurisdiction on the Federal High Court to entertain causes and matters on land disputes. Jurisdiction of the Federal High Court to entertain land matters cannot be inferred by implication in the construction of Section 251 of the 1999 Constitution (also 1979 constitution applicable as of 1998 when this matter was instituted) the meaning which is quite clear and plain as no causes or matters in land dispute are mentioned therein.”
The claim in the present case is not for declaration of title to land and the Court is not invited to determine any dispute over title to land. The claim concerns the refusal of the appellants to pay the respondents compensation for their land compulsorily acquired by the appellants under the Public Lands Acquisition Law of Edo State and for their properties destroyed in the process of the said acquisition and occupation. The respondents claimed for general and special damages as compensation therefore. The Proviso to Section 230(1) of the 1979 Constitution as amended gives the Federal High Court the jurisdiction to entertain an action against Federal Government agencies for damages. There is nothing in Subsection (r) or Proviso to 230(1) of the 1979 Constitution excluding actions concerning the decisions or acts of the Federal Government agencies relating to land or actions for damages as compensation for compulsory acquisition of land or other wrongs or injuries relating to land from the jurisdiction those provisions have given the trial Court. The jurisdiction given the trial Court by Subsection (r) is to entertain any action or proceeding challenging the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. It did not exclude action challenging executive or administrative action or decision relating to land from its application. There are no limiting or exclusionary words in that provision which uses the words “any” to show that the legislative intent is that the provision should apply to all actions challenging all executive or administrative actions or decisions of the Federal Government or its agencies irrespective of the subject matter of such executive or administrative act or decision.
The jurisdiction the Proviso to Section 230(1) gave to the trial Court was to entertain any action for damages against the Federal Government or its agencies.
There are no words limiting or excluding the type of damages for which action can be brought to the Federal High Court under the said Proviso. So that even though Section 230(1) did not specifically confer jurisdiction over land disputes in the Federal High Court, claims relating to matters in Subsections (r) and the Proviso to Section 230(1) are within its jurisdiction even if the subject matter is connected the land.
As this Court held in ADETAYO & ORS V ADEMOLA & ORS (supra) “it is the facts and circumstances of each case that will determine whether or not it is a case within or outside the exclusive jurisdiction of the Federal High Court.”
Let me now consider the other argument of learned counsel for the appellant that the subject matter of the claim in this case is not within the subject matter jurisdiction of the trial Court in view of the provisions of Section 51 of the Land Use Act 1978, which defines the High Court that can exercise the jurisdiction in Section 39 therein as the “the High Court of the State concerned.” Section 39(1) of the Land Use Act provides that-
“1. The High Court shall have exclusive original jurisdiction in respect of the following proceedings –
a. Proceedings in respect of any land the subject or a statutory right of occupancy granted by the Governor or deemed to be granted by him under this Act, and for the purposes of this paragraph, proceedings includes proceedings for a declaration of title to a statutory right of occupancy;
b. Proceedings to determine any question as to the persons entitled to compensation payable for improvement on land under this Act.”
This provision cannot apply to the claim in this case because the claim is not one for declaration of title to statutory right of occupancy and does not involve any dispute as to who is entitled to the compensation payable for improvements on the land acquired. The claim is simply for compensation by way of special and general damages for the compulsory acquisition of land and the destruction of properties thereon. The proceedings listed in Section 39 as within the exclusive jurisdiction of the High Court of the State concerned does not include the proceedings in which there is no dispute as to the title to the land or dispute as to the person entitled to be paid the compensation.
Section 39 did not list proceedings concerning any issue touching on land as within the exclusive jurisdiction of the High Court of a State. It was specific in listing the kind of proceedings that falls within that exclusive jurisdiction. It cannot be applied to give a blanket exclusive jurisdiction to the High Court of a State on every issue touching on land. It is a settled rule of interpretation that the express mention of certain things excludes those not mentioned. A blanket application of Section 39 of the Land Use Act to include all proceedings on any issue touching on lands within the exclusive jurisdiction of the High Court of a State, would bring it into conflict with Section 230(1) (r) of the 1979 Constitution where the proceeding is questioning the validity of an executive or administrative action or decision by the Federal Government or its agency on an issue connected to land and with the proviso to Section 230(1) where the proceeding is for damages against the Federal Government or its agency for actions or decisions concerning land. A statutory provision cannot be interpreted or applied in a manner or given a meaning that brings it into conflict with a provision of the Constitution. Such an application or interpretation would be unconstitutional and void.
In the light of the foregoing, issue no. 1 is resolved in favour of the respondents.
Let me now determine issues nos 2 and 4.
I have carefully read and considered the arguments of both sides on these issues.
Learned counsel for the appellant in the appellant’s brief alleged that after the entry of the appeal to the Court of Appeal, the parties, at the instance of the appellant herein, negotiated the settlement of the matter and settled same, that as a result of the settlement, the respondents through their legal practitioner, Ken Mozie Esq., received from the appellants herein the sum of N23,610,390.00 “as total satisfaction of the judgment debt”, that this was certified in the receipt, respondents counsel issued to them, that the respondents herein through their new counsel, John Okoh Esq., continued with the prosecution of their appeal in the lower Court without regard to the fact that they had been paid compensation in total satisfaction of the judgment sum awarded by the trial Court, that the said John Okoh Esq., did not even acknowledge receipt of their letter informing him that the issue had been settled. On the basis of the above allegations, learned counsel for the appellants argues that from 9/5/2008 when the fathers of the respondents received compensations in total satisfaction of the judgment sum, the Court of Appeal became functus officio to entertain and hear Appeal No. CA/B/169/2006 pending before it as the parties had compromised their demands, that from the moment the respondents via their counsel certified that the payment was in total satisfaction of the judgment debt in respect of Suit No. FHC/B/CS/109/1998, a new contract was entered into, that the new contract superseded the appeal pending in the Court of Appeal, that the 1st appellant relied on and believed the simple agreement in the counsel’s receipt that the money received was in total satisfaction of the judgment debt, that the respondents should have withdrawn the appeal since the matter was settled, that their continued prosecution of the appeal in the Court of Appeal after making the appellants herein believe that the matter had been settled, was fraudulent. Learned counsel for the respondent argued that the settlement the appellants allege is contained in the receipt issued by Ken Mozie Esq. (as he then was, now learned Senior Advocate) as legal practitioner to the respondents herein, that the receipt acknowledged payment of the sum of N23,604,309.00 as “total satisfaction of the judgment debt as it relates to the portion of the land verged RED in the litigation Survey Plan”, that the said payment was in total satisfaction of the judgment debt awarded as general damages, that there was no appeal against the award, that the appeal was against the refusal of the trial Court to award the special damages claimed for at the trial, there is no record of any settlement that compromised the appeal against the refusal to award special damages, that there is no record of any settlement during the pending of the appeal at the lower Court, that the respondents herein had no need to inform the Court of Appeal that the judgment debt had been paid to them, since that was not part of the matter in the appeal before it, that the judgment of the Court of Appeal was not fraudulently obtained, that John Okoh Esq., was never served any letter informing him of any settlement, that the said learned counsel for the respondents has the practice of receiving and acknowledging receipt of processes served on him, that the amount paid to the respondents is not in excess of the amount adjudged by the trial Court as general damages, that the respondents are entitled to be paid the judgment debt, there is nothing to show that the parties entered into a settlement agreement during the appeal at the lower Court.
Let me now determine the merits of the above arguments of both sides.
Both sides agree that after the entry in the lower Court of the appeal against the refusal of the trial Court to award special damages to the respondent, the appellants herein paid the respondents herein the sum of N23,601,390.00 exactly the same amount adjudged and awarded by the trial Court as general damages and that Ken Mozie Esq., learned counsel that received the said judgment debt on their behalf issued a solicitors receipt to the appellants herein, wherein it is stated the money was received “as total satisfaction of the judgment debt as it relates to the portion of land verged RED in the litigation survey plan”. It is obvious from the record of appeal that the sum of money adjudged and awarded as general damages to the respondent is N23,601,390.00 exactly the same amount paid by the appellants to the respondent. It is not in dispute that there is no appeal against the said award of general damages. By not appealing against it, the appellants herein accepted it as correct, conclusive and binding upon them. They were therefore bound to obey the judgment of the trial Court by paying the judgment debt to the respondents herein. It is therefore obvious that when they paid the respondents N23,601,390.00, exactly the amount awarded by the trial Court as general damages, they were complying with the judgment of the trial Court that they pay to said sum as general damages to the respondents. Learned counsel for the respondents who received the money on their behalf correctly described the payment in the receipt he issued as received in total satisfaction of the judgment debt as the payment liquidates the entirety of the judgment debt.
The argument of learned counsel for the appellants that the respondents having acknowledged that the money they received was in total satisfaction of the judgment debt, should have withdrawn their pending appeal against the refusal of the trial Court to award them special damages is ridiculous. I fail to see how it can be reasonably argued that because they received the judgment debt due to them, they have lost or forgone their constitutional right to appeal against any other part of the judgment that they are not satisfied with.
The appeal was entered and pending in the Court of Appeal before the appellant paid the judgment debt. It was brought by the respondents herein challenging the part of the judgment of the trial Court dismissing their claim for special damages. There is nothing that shows or suggests that the respondents compromised or settled their said appeal by accepting N23,601,390.00 in total satisfaction of the existing judgment debt.
Learned counsel for the appellants has made heavy whether of the fact that the respondents failed to inform the lower Court that the matter had been settled. I have wondered why the appellants did not so inform the Court, when they realized that the respondents were not willing to do so and were ready to continue the prosecution of their appeal. The record of appeal shows that the learned counsel for the appellants herein, as respondents in that appeal filed their brief and participated in the hearing of the appeal without objecting to the continuation of the appeal on the grounds that both parties have settled. The fact that neither of the parties to the appeal before the lower Court informed it that they have settled shows that they did not agree to settle the matter and have not settled. That is why each adopted its brief and the matter was reserved for judgment.
In any case, settlement of the dispute in a case pending before a Court is consensual as it proceeds from an agreement by both sides to the dispute to settle it on terms agreed by them. Where the parties disagree on whether they have settled or not, it would be ridiculous to argue that they have settled. A party cannot be forced to agree to enter into an agreement to settle or compromise his or her claims in Court.
The argument of the learned counsel for the appellant that “the failure of the respondent to withdraw the appeal but continue with the appeal was fraudulent amongst others because they had compromised the appeal and as such, ought to have withdrawn the appeal is as bizarre as it is ridiculous. This is not a legitimate argument from the bar. Learned counsel for the appellants should know that even though the general damages were awarded in favour of the respondents, they still had the constitutional right to appeal against any part of the judgment they felt dissatisfied with and that they were entitled to be paid their judgment debt and that their receipt of the judgment does not compromise their right to appeal against other parts of the judgment. Receiving the judgment debt and appealing against the refusal to award them special damages is their legal right. There is nothing fraudulent in the exercise of their legal right. The argument of learned counsel for the appellants imputing fraud against the respondents herein is unfair, unconscionable and unethical.
In the light of the foregoing, issues nos. 2 and 4 are resolved in favour of the respondent.
Let me now determine issue no. 3 which asks “Furthermore, was it not recondite for the Honourable Justices of the Court of Appeal to had awarded special damages to the respondents without averring to the findings of the Court of first instance that the evidence of PW3 was manifestly not credible yet the Court relied upon same to award special damages?”
It is indicated in the appellant’s brief that this issue is derived from ground 3 of this appeal that reads thusly:
“Their Lordships further misdirected in mixed law and facts when they stated that ‘the appeal was meritorious and therefore succeeds’ on the ground that:
‘…The evidence of PW3 is juxtaposed with that of the original Plaintiff-Prince Friday Elenna (now deceased). It is clear that Exhibit P13 dated 14/09/1995 was a mere pre-valuation letter written on behalf of the appellants. Exhibit P13 was written before the actual variation, of the special damages suffered by the appellants was carried out and duly documented in the valuation report made on the 7th Day of August, 1998 and which was admitted in evidence as Exhibit P6 by the trial Court. Therefore, there is no contradiction in the claim for special damages which was duly pleaded and proved by the appellants in the trial Court…”
It is glaring that the issue raised for determination from the above ground of this appeal is different from the complaint in the ground. While the ground of appeal complains that the Court of Appeal should have concurred with and affirmed the decision of the trial Court that Exhibits P6 and P13 contradict each other on the amount payable to the respondents as compensation, that therefore they are not credible and that the claim for special damages was not proved. Issue no. 3 raised for determination is that the Court of Appeal was wrong to have relied on the evidence of PW3 to award the respondent special damages without regard to the finding of the trial Court that the evidence of PW3 was manifestly not credible.
Since the complain in issue no.3 is different from the complain in ground 3 of this appeal from which it purports to derive, the issue is not derived from that ground. Since the issue is not covered by any of the grounds of this appeal, it is incompetent. Every issue raised for determination in an appeal to this Court must derive from a ground of the appeal. It is settled law that an issue for determination that is not derived from any of the grounds of an appeal is incompetent.
Even if, issue no. 3 had been validly raised, it would still be struck out for being abandoned, as the arguments under it have no relationship with it. The arguments of the appellants under issue no. 3 are that the award of special damages by the Court of Appeal was made in error of law as it did not consider that the land was acquired by the Nigerian Prisons Service for public purpose as that meant that government or its agency ought not to pay exorbitant or huge compensation, that the respondents did not first approach the Edo State Land Use Allocation Committee to ask for compensation for their acquired land as stipulated under Section 2(c) and (ii) of the Land Use Act, that the compensation payable was not determined in accordance with Ss. 29, 30 and 51(1) of the Land use Act, that PW3 not being the chief land officer of Edo State was not the appropriate officer to determine the amount to be paid for crops on the acquired land, that Exhibit P6 is not the product of a joint inspection of the acquired land by the relevant parties, that by virtue of Section 47(2) of the Land Use Act, the trial Court lacked the jurisdiction to inquire into any question concerning or pertaining to the amount or adequacy of any compensation paid or to be paid under the Act. None of these arguments relate to the issue raised for determination in issue no. 3. As it is, there is no argument of that issue. The appellant thereby abandoned it. It is hereby struck out. The arguments made under issue no. 3 have no relationship with any of the grounds of appeal and issues raised for determination. They are therefore incompetent and are not valid for consideration. The only exception is the argument that by virtue of Section 47(2) of the Land Use Act the trial Court lacks the jurisdiction to inquire into any question concerning or pertaining to the amount or adequacy of any compensation paid or to be paid under this Act since it raises a point of jurisdiction. The law is settled that a point of jurisdiction can be raised in any manner and at any stage of the proceedings, even for the first time on appeal to the lower Court or further appeal to this Court.
The argument that by virtue of Section 47(2) of the Land Use Act, the trial Court lacked the jurisdiction to inquire into any question concerning or pertaining to the amount or adequacy of any compensation paid or to be paid under the Act lacks validity here for two reasons. The first is that the claim in this suit is not about the determination of the amount payable as compensation or the adequacy of the amount paid or to be paid as compensation. The respondents case is simply that their land was compulsorily acquired, their tree crops and cultural properties destroyed and no compensation was paid to them therefor. It did not raise the questions that Section 47(2) of the Land Use Act 1978 precluded the Court from inquiring into.
The second reason is that Section 47(2) which provides that “No Court shall have jurisdiction to inquire into any question concerning or pertaining to the amount or adequacy of any compensation paid or to be paid under this Act” is in conflict with Section 40(1) of the 1979 Constitution exactly the same with Section 44(1) of 1999 Constitution) that provides that:
“No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things –
(a) requires the prompt payment of compensation therefore; and
(b) gives, to any person claiming such compensation right of access for the determination of his interest in the property and the amount of compensation to a Court of law or tribunal or body having jurisdiction in that part of Nigeria.”
Section 40(1)(b) of the 1979 Constitution gave to a person whose property is compulsorily acquired and who has not paid compensation or adequate compensation for the said property, the right of access to a Court for the determination of the amount of compensation due to him or her. Section 47(2) of the Land Use Act by ousting the jurisdiction of Court to inquire into questions concerning the amount or adequacy of compensation paid or to be paid, deprives the person whose property is compulsorily acquired the right of access to a Court for the determination of the amount of compensation due to him or her, which right is given to him or her by Section 40(1) (b) of the 1979 Constitution. By taking away the right of access to Court to determine the amount of compensation payable for a compulsorily acquired property, Section 47(2) is in conflict with Section 40(1) (b) of the 1979 Constitution. It is on account of this conflict, unconstitutional and void by virtue of Section 1(3) of the 1979 Constitution which provides that “if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void”.
In the light of the foregoing, issue no. 3 is resolved in favour of the respondents.
On the whole, this appeal fails as it lacks merit. It is accordingly hereby dismissed.
The appellants shall pay costs of one million naira to the Respondents.
SC.624/2018