Lahan v. A.g. (W.r) (1963) LLJR-SC
Lahan v. Attorney-General of the Western Region (1963)
LawGlobal-Hub Lead Judgment Report
BAIRAMIAN JSC
The judgment under appeal dismisses the plaintiff’s petition of right, which prays that his family be paid compensation in respect of an area of land at Agodi-Bodija, Ibadan.
His Statement of Claim alleges that his family were the owners in possession until 1934, when the land was acquired by the Crown under the Public Lands Acquisition Ordinance; those allegations the Defense is not in a position to deny or affirm. His Statement goes on to allege that around 1934 he was paid £200 as compensation for the crops on the land; that the Defense admits but adds that Government acquired only a leasehold interest in the land.
The Defense denies his further allegations that the land is shown on the survey plan filed by the plaintiff; that part of the crops are still on the land (meaning cocoa trees and the like); that he demanded compensation for the land in 1934 and was told that his claim was receiving attention; that he petitioned about it in 1939 and in other years until 1959; or that the value of the land is £50,000.
In addition the Defense states that the plaintiff and his family are not entitled to anything more, and also gives notice that the defendant will contend that claim is statute-barred by the Limitation Act, 1623, and by section 2(2) of the Public Lands Acquisition (Amendment) Law, 1958, and that he will also contend that the action is misconceived.
When the petition came up for hearing in the Court below, upon the plaintiff’s counsel producing a letter from the Ministry of Lands, dated 24th July, 1959 – which said that the plaintiff’s letter had been received, that the matter was receiving attention, and that a further communication would be addressed to him in due course -upon plaintiff’s counsel producing that letter, Senior Crown Counsel stated to the Court that he withdrew the contention that the claim was affected by the Limitation Act, 1623, but was pursuing the contention that it was barred by the Public Lands Acquisition (Amendment) Law, 1958. Extensive argument was heard on this latter contention; but on a later date the learned Judge asked the parties to argue on the applicability of the Limitation Act, 1623 to the petition. Crown Counsel argued; Counsel for the plaintiff did likewise, prefacing his argument with the submission that since the defense under the Act of 1623 had been abandoned, argument on it would be academic.
The learned Judge later delivered a considered Ruling that the claim was barred by the Limitation Act of 1623, and dismissed the claim. Hence this appeal, which complains in various ways about the claim being barred by effluxion of time, and also that the trial Judge acted wrongly and erroneously in considering a defense under the Act of 1623 when that had been abandoned on the defendant’s behalf.
When the appeal was first called on for a day to be appointed for the hearing, the Court intimated to Counsel that it would like to hear argument on the question whether, in view of the provisions of section 10 of the Lands Acquisition Ordinance, the plaintiff ought not to have taken out a summons under that section to make his claim to compensation for land acquired under that Ordinance, instead of filing a petition of right; in other words, did a petition of right lie?
It is necessary to quote the text of section 10 of the Lands Acquisition Law, cap. 105 in the Laws of the Western Region, which is the offspring of the Lands Acquisition Ordinance previously in force there, and of section 3 of the Petitions of Right Law, cap. 90 of those Laws.
Section 10 of the Acquisition Law provides that –
“(1) If for six weeks after the service and publication as aforesaid of such notice no claim shall be lodged with the Permanent Secretary in respect of such lands, or if the person who may have lodged any claim and the Minister shall not agree as to the amount of the compensation to be paid for the estate or interest in such lands belonging to such person, or which he is by this Law enabled to sell and convey, or if such person has not given satisfactory evidence in support of his claim or if separate and conflicting claims are made in respect of the same lands, the amount of compensation due, if any, and every such case of disputed interest or title shall be settled by the High Court, which court shall have jurisdiction to hear and determine in all cases mentioned in this section upon a summons taken out by the Minister, or any person holding or claiming any estate or interest in any lands named in any notice aforesaid, or enabled or claiming to be enabled by this Law to sell and convey the same.
(2) Subject to the provisions of section 20, no claim to any estate, interest or right in or to any lands in respect of which a notice has been served and published in the Gazette in accordance with section 9, or to any compensation or rent in respect of any such estate, interest or right, made after the expiration of twelve months from the publication of the notice, shall be entertained by any public officer whose duty it is to receive such claims or by any court.”
Section 3 of the Petitions of Right Law provides that –
“(1) All claims against the Government or against any Government Department, being of the same nature as claims which may be preferred against the Crown in England by petition, manifestation or plea of right may, with the consent of the Governor be preferred in a superior court having original jurisdiction in respect thereof in a suit instituted by the claimant as plaintiff against the Attorney-General as defendant or such other officer as the Governor may from time to time designate for that purpose.
(2) In this section ‘superior court’ means the High Court or the Federal Supreme Court.”
The arguments are as follows:
The plaintiff’s learned counsel cites from Halsbury’s Laws, 2nd ed., vol 9, on Crown Practice, the passage on when a petition lies, which includes the case of compensation for interference with a subject’s property. He argues that section 10 of the Acquisition Law does not include a case like the present where the Crown does not allege that it has not paid because it was not satisfied with the plaintiff’s title, but merely answers that the matter is receiving attention.Learned Counsel for the Crown submits that where a special remedy is provided, a petition of right does not lie. He argues that the Crown has put the claimant on proof of his title and of the amount claimed; that the valuation would have to be made under the provisions of the Acquisition Law, and section 20 (among other sections) would apply.
In reply counsel for the plaintiff concedes that there is some support for the argument that where there is another remedy, no petition of right lies, in another passage in Halsbury’s Laws; but he repeats his argument that the defence does not bring the case within the Acquisition Law. The 2nd edition of Halsbury’s Laws not being available in our library, I cite from the 1st edition, vol. 10, where it is stated at page 27 that a petition lies “for compensation for land taken by the Crown,” and the authority of Blundell v. R. [1905] 1 K.B. 516 is cited in support; and where it is also stated at page 29 that-
“There are cases where a claimant is entitled by statute to sue the Government department or officials concerned, and there it would seem that the remedy by petition of right is taken away. The same principle applies where a special statutory means is provided for recovering property from the Crown itself.”
The authorities cited are, for the first sentence, De Bode (Baron) v. R., 1851, 3 H.L. Cas. 449; Frith v. R., 1872, 7 Exch. 365.
For the second sentence the footnote says:¬
“As, for instance, by the National Debt Act, 1870 (33 and 34 Vict. c. 71), s. 55, and the Acts relating to income tax. Cases as to income tax in this connection are Holborn Viaduct Land Co. v. R., 1887,52 J.P. 341, and Hunter v. R. [190311 K.B. 514, C.A.”
The Court was also referred to Attorney-General v. De Keyser’s Royal Hotel, Limited [1920] A.C. 508.
In 1916 the Crown took possession of de Keyser’s Hotel for the housing of service personnel, purporting to do so under the Defence of the Realm Regulations, and denied the legal right of the owners to compensation; the owners claimed compensation by petition of right; and the decision was that the Crown had no power to take possession of the hotel in right of its prerogative simpliciter, and that the owners were entitled to compensation in the manner provided by the Defence Act, 1842. The petition of right was needed to test the point of alleged prerogative.
In Blundell v. R. (supra) after the parties had gone to the Arbitrator to decide the amount of compensation, upon his assessing two items of compensation- one for the value of the land taken for the fort, and another for injurious affection of the owner’s adjoining land arising from the fact that the Crown was going to build a fort and fire guns in it- the Crown denied liability to pay the second item; the owner made his claim by petition of right and the decision was in his favor. Both those cases show that the Crown was refusing to admit liability in law wholly or in part, on the ground that the land was taken for defense purposes.
There was a question of principle involved, which had to be taken to the High Court by petition of right. In the present case, there was no ground for such a petition: the Statement of Claim alleges that the plaintiff’s land was acquired by the Crown under the Public Lands Acquisition Ordinance, that he applied for payment of compensation, and that he was told the matter was receiving attention: there is no allegation that the Crown had denied liability in law to pay for compensation.
On its face the petition of right claims money by way of compensation for land acquired under the Acquisition Ordinance, which provides a method for making a claim to compensation and empowers the High Court upon a summons to assess the amount and also to decide any case of disputed interest or title; so the claimant had his remedy of taking out a summons under the Public Lands Acquisition Law and should have availed himself of that remedy.
It remains to say a few words about Frith’s case and De Bode’s (both cited above). Frith was told that if he had a claim, he should have made it to the Secretary of State for India in the light of the relevant statute. De Bode’s case (in brief) arose out of moneys provided by the French Government for compensation to British subjects whose property was taken by the French in the French Revolution of 1789. An Act was passed in Great Britain to regulate the investigation of claims; it provided that if any money was left over, it should be paid to the Treasury. De Bode’s claim was rejected. There was some money left over, which was paid to the Treasury; and de Bode petitioned for payment by the Crown. The Courts took the view that as there was an Act on claims and de Bode’s claim was rejected by those appointed to enquire into claims, and as the money left over from the fund was paid to the Treasury in accordance with the Act, a petition of right did not lie in the circumstances.
The present case is not identical with either Frith or de Bode: but those cases do indicate that where statutory provision is made for making a claim, that should be pursued in making it. Whether in the present case, a petition of right may or may not become necessary depends on what happens later -as in Blundell’s case. The legislation of Nigeria is not quite the same as that of England, and it may well be that no need for a petition of right will ever arise. Be that as it may, the present petition of right did not lie on the face of it when filed, and should have been struck out on that ground.
Having regard to the manner in which the case was conducted in the court below, and to the fact that the point whether the High Court could have entertained the petition was taken by the Court in the appeal, I think that there should be no order on costs. I propose that this order be made –
The decision of the High Court of the Western Region of 12th January, 1961, in Suit No. 1/62/1960, is set aside together with the proceedings in the Suit, without any order on costs either of appeal or in the court below.
Other Citation: (1963) LCN/1056(SC)