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:

“26. The plaintiff will contend at the trial of this suit that there cannot be compulsory acquisition of land by the Government without paying compensation to the respective owners of the land and/or developers.

27. The plaintiff will also contend at the trial of this action that even where there is effective acquisition of land by the Government for public purpose absolutely, the Government cannot subsequently use the land for private purpose or give the land to private concern for private purpose. The plaintiff hereby pleads the Articles and Memorandum of Association of the 1st defendant company. It will be founded upon at the trial of this action. The 1st defendant company is hereby given notice to produce in court during the trial of this action the original of the said Articles and Memorandum of Association of the 1st defendant.”

Although the learned trial judge had given an order for the joinder of the Attorney-General as the 2nd defendant and Mr. Osifo had filed the amended writ of summons and statement of claim, the trial continued without the Attorney General.

In fact, it was after the close of the case for 1st defendant and the adjournment for judgment that a Principal State counsel from the Attorney General’s Chambers, one Mrs. B. O. Kalu, appeared before the court and applied for leave to defend the action and file a Statement of Defence. The application was not opposed and the court granted the prayers sought. One witness gave evidence

as D. W. 5 and the defence closed its case.

After considering all the evidence adduced the learned trial judge made the following findings of fact.

1. The appellant was not served with any notice of acquisition in respect of the land.
2. The requirement of publishing the acquisition notice in the national newspapers is mandatory. Section 9(3) of the Public Lands Acquisition Law Cap. 105 provides that:

“All notices served under the provisions of this law shall be published once at least in the Bendel State Gazette, and at least two national daily newspapers circulating in the area.”

3. Non-compliance with the provision of Public Lands Acquisition Law makes the acquisition incomplete and invalid and the land did not vest in the 2nd defendant and no property passes under it. The learned trial judge concluded his judgment in favour of the appellant with the following declarations:

“A. It is therefore declared that before the promulgation of the Land Use Decree in March, 1978, the plaintiff under Bini customary law was owner in possession of the parcel of land measuring 400ft x 400ft at Ekae Village, Benin City and so entitled to a Certificate of Occupancy of the said land.

B. It is also declared that the purported compulsory acquisition of the said land measuring 400ft x 400ft at Ekae Village as published in the Bendel State of Nigeria Gazette No. 44 volume 13 of 25th August, 1976 was not completed and so invalid and void.

C. N50,000.00 general damages against the 1st defendant for breaking and entering the said land of the plaintiff against stiff opposition from him and destroying his farm land, economic trees and cash crops and the ruins of his grandfather’s grave.

D. The 1st defendant, its servants and or agents are hereby restrained from further and continued acts of trespass on the said land. The order is attached in Exhibit “A” with the plan No. AAA/BD/543/86.”

Dissatisfied with the judgment of the trial High Court the 1st and 2nd defendants appealed to the Court of Appeal. The court of Appeal, in a well considered judgment, allowed the appeal on the ground that the trial court was in error to have found in favour of the plaintiff on facts not pleaded. The lower court also rejected the 1st respondent’s alternative argument relating to the validity of the compulsory acquisition of the land in dispute by the Bendel State Government.

The argument of the 1st respondent was based on the provisions of section 20 of the Public Lands Acquisition (Miscellaneous Provisions) Decree No. 33 of 1976.

With the leave of the lower court Dr. Mudiaga Odje, SAN., appearing for the appellant, filed this appeal and supported it with three grounds of appeal. Two more grounds were added with the leave of this court. From those five grounds of appeal the following issues have been raised for the determination of the appeal:

I. Whether the issue of the invalidity of the compulsory public acquisition of the land in dispute was properly raised for determination on the pleadings before the trial court.

II. Whether the land in dispute was on the evidence validly compulsorily acquired, and/or required for public purposes absolutely.

III. Whether the Court of Appeal was justified in allowing the appeal and dismissing the appellant’s claim.

The 1st respondent is also not satisfied with the decision of the Court of Appeal in rejecting the company’s alternative argument relating to the validity of the compulsory acquisition of the land in dispute by the State Government.

Hence, Chief Williams, S.A.N., with the leave of this court filed a cross-appeal against that decision. Against the single ground of appeal filed by the 1st respondent in support of the cross appeal Dr. Mudiaga Odje, S.A.N., formulated the following question as the lone issue for the determination of the cross-appeal.

“Whether on the evidence and circumstances of this case, section 20 of the Public Lands Acquisition (Miscellaneous Provisions) Decree No. 33 of 1976 could be invoked with respect to the vesting of title to the land in dispute in the 2nd respondent”.

Chief F. R. A. Williams, S. A. N., relied on the issues raised by the appellant in his submissions relating to this appeal. In issue 1 Dr. Mudiaga Odje, S.A.N., submitted that the appellant had duly raised the issue of the invalidity of the alleged compulsory public acquisition of the land in dispute in paragraphs 23, 25, 26 and 29 of his amended statement of claim. He also argued that the 1st respondent joined issue with the appellant on the question of validity of the said compulsory public acquisition of the land in dispute in paragraphs 4 and 4(a) of the Statement of Defence and the 2nd respondent did so in further amended statement of defence, paragraphs 4 – 6, 12(a) and 12(b).

Dr. Odje further explained that the relevant law on the pleading of invalidity of acquisition is that a party challenging the validity of revocation of right of occupancy or compulsory acquisition of land need only plead the invalidity of the revocation or acquisition, and not the reasons or grounds of such revocation or acquisition which are matters of evidence. He referred to the case of Osho & Anor. v. Foreign Finance Corporation & Anor (1991) 4 NWLR (Pt.184) 157 where Obaseki. J.S.C. in his lead judgment in that appeal held:

“If on the pleadings an issue of validity of the revocation is joined and evidence is led to establish the invalidity of the revocation, the court cannot escape the duty of declaring the revocation invalid notwithstanding the fact that those reasons or grounds were not pleaded. Invalidity having been pleaded, failure to plead the evidence is not fatal. See Peenok Investments Ltd. v. Hotel Presidential Ltd. (1982) NSCC vol. 13 page 477; (1983) 4 NCLR 122;(1982) 12 S.C.17”.

Chief Williams, S. A. N., contended that the case of Foreign Finance Corporation, cited above, was not an authority for the proposition advanced above by Dr. Odje, SAN. I think Chief Williams is right because the case of Foreign Finance Corporation did not deal with the issue of compulsory acquisition of land and the issue of pleading invalidity of the revocation of a right of occupancy was not in dispute there. In that judgment, Obaseki, J. S. C. found that invalidity of the

revocation had been pleaded and as such the case cannot be an authority where a party fails to plead material facts that the compulsory acquisition was invalid. It is pertinent to look at paragraphs 23, 25 and 26, which Dr. Odje referred to and submitted that the issue of invalidity of the compulsory public acquisition of the land in dispute had been pleaded there. Those paragraphs read:-

“23. The plaintiff avers that he was not aware that his land (i.e the land in dispute) had been compulsorily acquired by either State or Federal Government until 1st defendant wrote to him to say so, nor was compensation paid to him for the developments and/or improvements on the land.

25. The plaintiff will contend at the trial of this action that the 1st defendant has no title to the land in dispute and therefore has nothing to be covered by a certificate of occupancy referred to in paragraph 24 above.
26. The plaintiff will contend at the trial of this suit that there cannot be compulsory acquisition of land by the Government without paying compensation to the respective owners of the land and/or developer”.

Paragraph 29 is the claim of the appellant as given in the amended writ. I have earlier in this judgment reproduced paragraph (1b) which is the new addition after the learned trial judge ordered For the amendment of the appellant’s pleading. I have perused paragraphs 23, 25 and 26 and in my considered view it cannot be correct to say that the issue of invalidity of compulsory public acquisition of the land in dispute has been pleaded there. As a matter of fact, invalidity of compulsory acquisition is not the case of the appellant before the trial court. His case was based on lack of knowledge about the compulsory acquisition. If, as the learned trial judge had found, that notice of the acquisition was not published in at least two daily newspapers circulating in the area and that the plaintiff was not served with the notice of the acquisition the appellant must plead those material facts. A trial judge must not import into his judgment issues not pleaded or raised at the trial. See Lawal Adebisi and Others v. Saliu Oke (1967) NMLR 64. It is not the legal result which Chief Williams argued to have been omitted in the appellant’s pleadings it is those material facts which would ascertain the validity of the legal result which must be pleaded. See Peenok Investments Ltd v. Hotel Presidential Ltd. (1983) 4 NCLR 122; (1982) 12 S.C.1.

In the alternative argument learned counsel for the appellant submitted that even if the issue of the invalidity of the acquisition is not pleaded it is the contention of the appellant that the provisions of the law relating to such issue (i.e. the Public Lands Acquisition Law), sections 5, 8 and 9, cap, 136, Laws of Bendel State 1976 are essentially matters in respect of which the courts are enjoined to take judicial notice in accordance with section 74 (1) (a) of the Evidence Act, – Finnih v. Imade (1992) 1 NWLR (Pt.219) 511. This submission is too elementary. I have given answer to this submission above. You have to plead material facts which would permit the judge to apply the law to the facts or take judicial notice of it.

If the appellant has pleaded that notice of the acquisition of the land in dispute was not published in at least two national daily newspapers circulating in the area where the land is located, the respondent would join issue on it. The aim of pleadings is to give parties notice of the case to be met in court to enable them prepare their case before hand, in order not to be taken by surprise – George v. Dominion Flour Mills (1963)1 SCNLR 117; (1963) 1 ALL NLR 71. But if the trial judge, suo motu without any pleadings raised on the issue, takes judicial notice of the failure to publish notice of acquisition of the land in dispute in at least two national daily newspapers, he has taken the case completely out of the realm contemplated by the parties. He has travelled outside the pleadings and evolved a case which is not what the party pleaded.

I now move to issue II. The question raised in issue II is whether the land in dispute was on the evidence validly compulsorily acquired, and/or required, for public purposes absolutely. Learned Senior Advocate Dr. Odje submitted that there is no dispute over the customary title of the appellant to the land in dispute. Also, it is common knowledge that the 1st respondent is a viable private liability company carrying on profitable business of rubber processing into tyres, tubes and other finished products for industrial, household and personal uses. Dr. Odje pointed out that by the purported notice of acquisition headed: Bendel State Notice No. 380, dated 25th August, 1976, the land in dispute was ostensibly required by the Government for public purposes absolutely, yet the same land was subsequently granted to the 1st respondent for its private business and commercial use. Learned counsel further submitted that the subsequent grant to 1st respondent had invalidated the public acquisition. He referred to a number of cases. I will mention only two of them. Ereku v. Military Governor of Mid-Western State & Ors. (1974) 1 All NLR 695 and L.S.D.P.C. v. Banire & Ors. (1992) 5 NWLR (Pt.243) 620 at pp. 639-641.

Chief Williams, SAN, in answer to the submission of Dr. Odje, SAN., on whether the land was acquired for public purpose, drew our attention to the definition of “Public Purpose” in the Public Lands Acquisition Law, Cap 136, laws of Bendel State 1976. In section 2(h) acquisition for public purpose includes:

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

It is therefore plain that compulsory acquisition of land for industrial purpose falls within the definition of acquisition for public purpose. The cases cited by Dr. Odje are not relevant for the determination of this appeal. Ereku v. Military Governor of Mid-Western State (supra) was decided under the old law Public Lands Acquisition Law, cap 105 of Western Region 1959 applicable at that time to the Mid-Western State. The case of L. S. D. P. C. v. Banire (supra) is a decision of the Court of Appeal and the facts of that case are distinguishable from the case in hand. In Banire’s case, L. S. D. P.C. acquired privately developed properties and let it out to traders. This I agree is against the intendment of Public Lands Acquisition Act.

The appellant’s counsel contended that specific findings made by the trial High Court against the 1st respondent were not made a subject of appeal before the Court of Appeal and are therefore subsisting and binding. This is why the learned judge found thus:

“I find as a fact that the first defendant without consent of the plaintiff (i.e. Appellant) stubbornly devastated the land of the plaintiff”

This decision was made against all rules of pleadings. The learned counsel for the appellant had failed to point out the paragraphs in the Statement of Claim where such a decision could be hinged. See Emegobwue v. Okadigbo (1973) 4 S. C. 113.

Finally I will now consider the cross-appeal. Chief Williams, S.A.N., filed a single ground in support of his argument that the Court of Appeal was in error to reject the 1st respondent’s alternative argument relating to the validity of the compulsory acquisition of the land in dispute by Bendel State Government. The ground of appeal reads:

“The court below erred in law in refusing or declining to uphold the submission that even if the non-compliance with section 9(3) of the Public Lands Acquisition Act was properly pleaded the plaintiff was not entitled to judgment by virtue of Section 20 of Decree No. 33 of 1976,

Particulars of Error

(a) Section 20 of Decree No. 33 of 1976 stipulates that on the expiration of six weeks from the date of notice of mention to acquire land, title to such land in fee simple shall vest in the Military Governor of the State.

(b) In the premises the court below should have upheld the aforementioned submission.”

The simple argument put forward by Chief Williams in support of this cross appeal is based on correct interpretation to the provisions of Public Lands Acquisition (Miscellaneous Provisions) Decree No. 33 of 1976. Chief Williams submitted that what is material to the vesting of land in the Government under that law is not service of the Notice of Acquisition but the making of the Notice of intention to acquire the land. He referred to S. 20 of the Decree which reads:

“On the expiration of six weeks from the date of the notice of intention to acquire land under section 5 of the Public Lands Acquisition Act or under the appropriate provision of the equivalent State law title to the land in fee simple shall vest in the Head of the Federal Military Government in trust for the Federal Military Government, or as the case maybe, in the Military Governor of the State in trust for the Government of the State, free from all adverse or competing rights, titles or interests whatsoever.

Provided that nothing in this section shall affect the right of the owner of the land to compensation as provided under this Decree”.

Chief Williams submitted further that if the attention of the High Court had been drawn to the provisions of this enactment, it could not possibly have come to the conclusion to which it did regarding the validity of the compulsory acquisition. On the contrary the conclusion that the land became vested in the Government of Bendel State in fee simple with effect from the date when the notice of intention to acquire came into existence was inescapable. He concluded that the Court of Appeal failed to give effect to the plain meaning of the enactment.

Dr. Odje, S.A.N., in answer to the above, argued that the cross-appeal fails and should be dismissed because the learned trial judge made specific findings as to the invalidity of the purported acquisition on the grounds Inter alia of non-service of the notice on the appellant. Secondly, there has been no appeal by the respondents against the specific findings referred to above. Learned counsel finally submitted that section 20 of the Public Lands Acquisition (Miscellaneous Provisions) Decree No. 33 of 1976 could only be invoked with respect to lands validly acquired. He referred to the cases of Obikoya & Sons v. The Governor of Lagos State & Anor, (1987) 1 NWLR (pt. 50) 385. The Attorney-General of Bendel State and 2 Ors, v. P. L. A. Aideyon (1989) 4 NWLR (Pt 118) 646 at 673 – 676.

The arguments of Dr. Odje could be tenable if the appellant had pleaded material facts ascertaining invalidity of compulsory acquisition of the land in dispute. In the consideration of the question raised for the determination of this cross-appeal I have considered the general rule of interpretation of Statutes. The rule of construction of Acts of parliament is that they should be construed according to the intent of the parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous then no more can be necessary than to expound those words in the natural and ordinary sense. The words themselves alone, do in such a case, best declare the intention of the lawgiver… Per Tindal, C. J., when advising the House of Lords on the Sussex Peerage Claim (1844) CJ & Fin 85 at 143. In the case of Chief Obafemi Awolowo v. Alhaji Shehu Shagari and 2 Ors, (1979) All NLR 120; Obaseki J. S. C., referred to the decision of Parke in the case of Beck v. Smith (1836) 2 M & W 191 at page 195 in which he held:

“It is a very useful rule in the construction of Statute to adhere to the ordinary meaning of the words used and to the grammatical construction unless that is at variance with the intention of the legislature, to be collected from the Statute itself, or leads to any manifest absurdity or repugnance in which case the language may be varied or modified so as to avoid such inconvenience, but no further.”

The provisions of section 20 of the Public Lands Acquisition (Miscellaneous Provisions) Decree No. 33 of 1976 which is the subject of interpretation is clear and unambiguous. One does not require any magnifying glass to read its meaning and intendment. The Court of Appeal, in my view, is in error to say that it did not carry the meaning which Chief Williams urged us to accept as the correct interpretation to its provisions. I am in full agreement that what is material to the vesting of land in the Government under the Act is not the service of the Notice but the issuance of notice of intention to acquire the land. The meaning of the Statute is crystal and clear and I can see no other meaning to be attributed to it other than its ordinary and clear meaning. One can read S. 20 of the Decree many times over and still agrees that the issuance of the notice of intention to acquire the land and not the service of it is the material to the vesting of the land in the Government. The cross-appeal therefore succeeds.

I have not referred to the submissions of the learned counsel for the 2nd respondent in this judgment because during the hearing of this appeal Mrs. B. O. Kalu for the 2nd respondent associated herself with all the submissions of Chief Williams, S. A. N.

In the result, the main appeal fails and it is dismissed. The cross-appeal succeeds and it is allowed. The respondents are entitled to the costs of this appeal and I award each of them N1,000.00

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SC.142/1992