Irabor Oviawe V. Integrated Rubber Products Nigeria Ltd & Anor (1997)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

The central issue for the determination of this appeal is the question whether or not there had been a valid compulsory acquisition by the Government of Bendel State (now Edo State) of a parcel of land over which the appellant, who was plaintiff before the trial High Court, claims that he is entitled to a Statutory Right of Occupancy.

The appellant contended that the purported compulsory acquisition of the land in dispute was null and void. The claims of the appellant before the High Court are as follows:

“(a) A declaration that before the Land Use Decree 1978 at all material time the plaintiff is under Bini Customary Law and Custom the owner and is in possession of the parcel of land measuring 400ft x 400ft at Ekae Village Benin City within the jurisdiction of this Honourable court, and therefore entitled to a Statutory Right of occupancy in and over the said land. A survey plan delineating the said land having been filed in court.

(b) N100,000 (one hundred thousand naira) being special and general damages’ against the Defendant in that on or about the month of October, 1986 the Defendant broke into the whole land in physical possession of the plaintiff destroyed his farm land, economic and cash crops thereon and commenced development thereon without the consent and permission of the plaintiff purporting the said land to be his (defendant) own.

(c) A declaration that the purported Certificate of Occupancy No. 6190 of 22nd August, 1986 granted to the Defendant by the Bendel State over the said land is null and void.

(d) A perpetual injunction to restrain the Defendant, his servants and/or agents from any further or continued acts of trespass on the said land.”

Pleadings were ordered and duly filed. It is relevant to observe that at the commencement of the trial of this action the 1st defendant, hereinafter referred to as 1st respondent, was the only defendant in this case. After six witnesses had testified for the plaintiff the case for the plaintiff was closed. Mr. Okeaya Inneh for the Integrated Rubber Products, Nigeria, Limited opened the case for the defence. Three witnesses gave evidence. Thereafter the learned counsel applied for adjournment to bring up an application to amend the Statement of Defence. The application was granted. The learned trial judge, without being asked by the plaintiff and without any prior application for such amendment suo motu ordered as follows:

“The plaintiff in light of the defence shown, should file an amended statement of claim within thirty days making the Attorney-General a defendant and adding an alternative claim for compensation to enable all issues in the case to be effectually and completely settled under Order 7 Rule 10(2) of the High Court (Civil Procedure) Rules 1970.”

Mr. Osifo, learned counsel for the appellant, was not happy with the court’s order joining the Attorney-General to the suit. So, on the next adjourned date he applied to the court to vacate that order. The learned trial judge, without waiting for a reply from the defence counsel intervened and explained to Mr. Osifo that the idea of the alternative prayer is to get compensation where possible. It is clear that the issue of compensation was brought into the case by the learned trial judge. It was not then part of the appellant’s claim. Learned trial judge by this act would not easily be seen as holding an even balance between the parties, for he was, suo motu, amplifying the claim of the appellant against what he initially voluntarily pleaded.

Mr. Osifo was still unconvinced. He asked for time to consult his clients. After the consultation the learned counsel told the court that his client did not support the joinder of the Attorney-General and that they were not asking for compensation unless it was warranted within the appellant’s statement of claim. The learned trial judge refused to vacate the order he made and directed that if the appellant failed to carry out the suggested amendment within the thirty days given he could continue the case on the basis of the existing statement of claim.

Mr. Osifo succumbed to the pressure, amended the writ of summons and made the Attorney-General the 2nd defendant. He now claims jointly and severally against the two defendants. He also added the following head of claim:

“(1b) A declaration that the purported compulsory acquisition of plaintiff’s land measuring 400ft x 400ft at Ekae Benin-City vide Bendel State of Nigeria Gazette No. 44 vol. 13 of 25th day of August, 1976 is null and void OR in the ALTERNATIVE N1,000,000.00 (one million naira) damages for compulsory acquisition of plaintiff’s land aforesaid”

In the Amended Statement of Claim, he introduced two new paragraphs which were clearly beyond the amendment authorised by the court. The two new paragraphs read as follows: