Nzekwu & Anor v. Attorney-General E.C.State & Anor. (1972) LLJR-SC

Nzekwu & Anor v. Attorney-General E.C.State & Anor. (1972)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

By a Notice published in the Eastern Region of Nigeria Gazette No.5 of 21st January, 1960, as Eastern Regional Notice No. 60 (exhibit G) the Government of the then Eastern Region of Nigeria gave notice of its intention to acquire 796.8 acres of land at Onitsha in the Onitsha Province of the Eastern Region of Nigeria for public purposes. By another Gazette Notice published as Eastern Nigeria Notice No. 287 in Eastern Nigeria Gazette No. 18 of 22nd March, 1962 (exhibit G1) the acreage required was amended to read 773.47 acres made up of two parcels of land; parcel A contained an area of 739.3 acres while parcel B contained an area of 34.17 acres.

Meanwhile, the Minister of Town Planning of the then Eastern Region of Nigeria had applied for and obtained on 22nd June, 1961, a certificate of title (exhibit W) in respect of the 773.47 acres. The certificate of title contains the plans of the two parcels of land.

Pursuant to the notice of acquisition the plaintiffs, as claimants, applied by originating summons to the Onitsha High Court on 14th December, 1962, for the determination of the persons entitled to the lands covered by the said notice and of the amount of compensation payable therefore. The Attorney-General of Eastern Nigeria who was on notice was subsequently made the defendant to the said application. On 9th January, 1963, Anachuna Nwakoli, Ikefuna Onwugbobi, and Jebez Nwangwu, all representing the people of Obosi who also claimed the land, applied to be joined and were duly joined as defendants by order of court on 14th January, 1963. Pleadings were thereupon ordered and were duly filed. In their statement of claim the plaintiffs claimed that they were entitled to the land. They also claimed the sums of 3,127,093:15:0pounds as compensation for the land and 211,500:0:0pounds for the buildings on the land.

Before the defendants had filed their statement of defence, the learned trial judge on 1st July, 1963 adjourned the proceedings sine die until the determination of the appeals concerning the ownership and possession of the acquired land then pending before the Privy Council in England.

The people of Obosi, however, appeared to have dropped out of the case when the Privy Council in the judgment in P.C. Appeal No. 29 of 1962 delivered on 15th June, 1964 (exhibit D2) awarded possession of the land then in dispute, which included the parcels of land for which compensation was being claimed, to the present claimants. Therefore, when the hearing of the case commenced on 16th November, 1965, they neither appeared nor were they represented by counsel. At the hearing that day, however, the Minister of Town Planning of the then Eastern Nigeria was joined as defendant.

In their statement of defence, the 1st defendant, i.e. the Attorney-General, averred that the Government had offered the plaintiffs 310 per acre per annum capitalised at 20 years.”

In view of the basis of the awards made by the learned trial judge and the reasons for making them, we shall set out the evidence adduced at the trial with respect to the value of both land and buildings in detail.

One Josephus Theophilus John (2nd P/W.), a licenced surveyor of about 46 years experience at the material time, gave evidence for the claimants. He claimed to be a valuer in addition to being a licenced surveyor. He was well acquainted with Onitsha and knew the actual land in dispute. His testimony as to the value of the land is as follows:-

“There are 397.09 acres on the land. I would divide them thus for purposes of development:-

200 acres for industrial and commercial purposes.

100 acres for residential purposes.

97.09 for open spaces, roads, drains and fields.

The permanent buildings on the land could easily fall into this scheme with 100 acres for residential purposes. The land is very near the urban area of Onitsha and will be the connecting link between Onitsha and Asaba. At the time I did the survey in 1960 the Total Oil Company was there and so also the Shell Company had land there.

In consideration of the rents then paid by the companies I would say that 300 per acre per annum would be adequate for commercial and industrial areas and I would put it down at 25 years purchase price. For the residential areas, I would say 150 per acre per annum and the purchase price of 25 years. The value of 200 acres would then be 1,500,000pounds for the industrial and commercial areas and for 100 acres for residential purposes it would be 375,000pounds. This does not include the value of the buildings for which I say I agree with Mr. Gbadebo.”

Mr. Gbadebo (14th P/W.) had already valued the buildings on the disputed land. We shall refer to his valuation later. John was later cross-examined as to his qualification as a valuer. To these questions he replied as follows:-

“I am a valuer because I was trained in it. I have not got a certificate just as a valuer but I have a certificate which incorporated valuation.”

When questioned further about his valuation he replied:-

“I never communicated to the claimants what I now say about dividing the land for commercial, industrial and residential areas. It was what operated in my mind. My valuation for the land alone is 1,875,000. This is my opinion about the value of the land. I would not be surprised if the value is put at 3,137,095pounds. I took into consideration all that should be considered for evaluating the land.”

One Charles Agbu (4th P/W.) a member of the Ogbo family (the claimants in this case), after tendering a copy of Gazette No. 18 of 22nd March, 1962 (exhibit G1) in which the Gazette Notice of the acquisition of the land was published, testified as to the portion claimed by the Ogbo family in the acquired land as follows:-

“The Government wanted 773.47 acres of land in exhibit G1. Out of this 397.09 acres of land is our land and that is made up of Ugborimili land 391.09 acres and Woliwo-6 acres.”

This witness also testified that in 1957, they leased 3,253 acres of the plaintiffs land near the Niger Bridge to the Total Oil Ltd.; the lease (exhibit M) was for ninety-nine years and the rent was 945pounds per annum. The same year a portion of the land was let out to Shell B.P. as a ferry ramp. They were not in exclusive possession and the rent was 200pounds per acre per annum. This agreement, however, ceased when the government went into possession of the land in 1960 after the publication of the notice of acquisition. This witness also pointed out that in 1955, they leased a portion of their land at Woliwo area to Messrs. Paterson Zochonis Ltd. This portion is about 729 square yards in area and the lease was for 20 years at a rent of 55pounds per annum. In the same year another portion measuring about 1,400 square yards was leased to S.C.O.A. for 105pounds a year while in 1959 they leased yet another portion of about 1111 square yards near the acquired land to Esso Ltd. at rent of 180pounds a year. The 4th P/W. also testified that by January 1960, a plot of land measuring 100 ft. by 50 ft. was worth 500pounds in Onitsha. As to what the Government did with the land after the acquisition, the 4th P/W. said this:

“The Government went into possession immediately they issued the notice in 1960 and they started to construct roads and demolish buildings. They have let out about 50 acres to ile Printers of Nigeria Ltd. and they have laid out the rest of the land in plots for residential and commercial purposes. They have not paid any rents to us not even the place where Shell B.P. was using as a ferry ramp.

We therefore claim as per our writ of summons and also 5 per cent interest on whatever the court would award from 21st January, 1960 until the whole amount has been paid.”

Under cross-examination the 4th P/W. admitted that Fegge Layout was once a portion of Ugborimili land owned by the claimants. He also admitted that a very small portion of the land in the instant case was subject to flooding during the rainy season.

The lease to Total Oil Nigeria Ltd. was confirmed by Ezenwa (5th P/W.), that to Shell B.P. by Okara (6th P/W.), while that to Messrs. Paterson Zochonis Ltd. was confirmed by Nicholas Vaitases (9th P/W.). The 5th P/W. did not know whether the land leased to Total Oil Company was within or outside the land in dispute. As for the 9th Pl/W., he could not say how far away the portion leased to P.Z. was from the land in dispute.

Joseph Gbadebo (14th P/W.) who valued the buildings for the claimants is a professional chartered valuer and estate manager. He testified as to the valuation of the buildings as follows:-

“I had no idea of what the rates and taxes would be as there were no people living there. I had to take into account the fact that 12 per cent should go for rates and taxes. There were 337 houses and I assessed all the 337 houses together at 9,250pounds per annual. I allowed 12 per cent of that for maintenance and repairs and I got 1,250pounds. I deducted that from 9,250pounds and I had 8,000pounds. At that time the bank deposit rate of interest was 3 per cent. In order to induce an investor to invest his money on the property the rate of interest should not be less than 4 per cent which works out at 25 years purchase. I have to capitalise by multiplying 8,000pounds by 25 and I got 200,000pounds as the actual value of the 337 houses.

Over 200 of the houses were in perfect condition and some of them with blocks and glass louvres and evaluated each and everyone of them at a sum of not less than 600pounds and the income of each of the perfect houses after deducting the outgoings would bring the rent for each house to 235pounds per annum. This would work out at a sum more than 200,000pounds for the 337 houses but I decided to leave it at 200,000pounds.”

The defendants called Dickson Okoye (D/W.1), the Permanent Secretary, Ministry of Town Planning. He gave a description of the state of the land at the time of the acquisition and testified as to the amount offered by government for the land. According to this witness, when government acquired the land in 1960, a claim for possession by the Onitsha people against the Obosi people was pending. There were a number of houses on the land at the time of the acquisition. Some portions of it always got flooded during the rainy season. There was no pipeborne water on the land at the time. A few of the houses near Fegge had electricity and water but this was not part of the site developed. There were earth roads on the land then. The witness Okoye then pointed out that when government acquired land for the Diobu G.R.A. in Port Harcourt, the claimants were paid 7pounds per acre; for Trans Amade layout Government paid 6pounds per acre. For land acquired for the Magistrate Court in Umuahia, a sum of 6pounds per acre was paid; for the Catering Rest House site and the Provincial Assembly House site, government paid 4pounds per acre. At Calabar Government paid 2pounds per acre for the Cement Factory, and at Enugu, a sum of 2pounds per acre was paid for the Campus of the University of Nigeria. Okoye then told the court that when the claimants were offered 10pounds per acre with 20 years purchase (that is 200pounds per acre) they refused.

The defendants also called one Christian Onyedike (D.W.4), a chartered surveyor and chartered estate agent and auctioneer. He was once a valuation officer in the Ministry of Lagos Affairs but had since left the Ministry for the African Real Estate and Investment Co. Ltd. as a Senior Estate Manager. In August 1965, he was asked to value the acquired land including the buildings thereon. He carried out the assignment and submitted the report (exhibit Z). Testifying in support of his report, Mr. Onyedike described the land he saw in 1965, as follows:-

“When I went on the property I walked about the whole place to see the land. At the time of the year much of the property was flooded especially the link between the Bridge Road and Fegge. The central portion was low and water logged. The untarred Atani Village Road was broken here and there. There was a number of unoccupied buildings on the northern side of Port Harcourt Road. The only houses occupied were a few huts occupied by farmers. The main crops were yams, cassava, and some fruits trees-mangoes, and pawpaws.”

Mr. Onyedike then explained that the basis of his valuation was the open market value of the property at the date of the notice of acquisition, that is, the value of the property in January 1960 to a willing purchaser at the instance of a willing vendor. He then pointed out that at Onitsha at that time, government rent in Fegge Layout was 72pounds per acre per annum while that in Modebe Layout in the same town was 60pounds per acre per annum. He explained that these were already developed layouts with roads, electricity and water. He then expressed the opinion that the value of the acquired land should be 10pounds per annum per acre with 12 1/2years purchase. He did not think much of the buildings found on the land. He found that most of them were built with inferior building materials and could become easily dilapidated. He put no value on the houses because according to him, “the houses had no value on account of the dispute which was on in 1960.” He further observed that this dispute affected his mind in concluding that the years purchase of the acquired land should be 12 1/2. When he was cross- examined further about the land and the buildings thereon Onyedike testified as follows:

“I was satisfied that in the ordinary circumstances the land in dispute on account of its position could develop to be a residential, commercial or industrial area. Despite the findings made by the High Court in the judgment, ex. D, about there being many houses and inhabitants and schools and churches on the land in 1960 I would still give the place the same rate of interest as I have given and the same number of years purchase. I have been through Modebe layout and Fegge layout. I cannot say when the rates at Modebe Layout and Fegge were fixed but they were the current rates in 1960. hat of Fegge could not be more than five years old. I did not find out what payments were made on assignments of the plots. I agree that at Fegge people could make deals and assign their plots for between 200pounds and 1,000pounds but they were often private deals.”

He agreed that the lease to the Total Oil Company was a good indication of the value of the water-side portion of the land but not for the whole land. While agreeing that the price of land had been on the increase between 1954 and 1960, he pointed out that petrol stations pay far more than the market price of the land given to them.

In the course of his judgment, the learned trial judge considered the testimony of the valuers called by each side. With respect to the valuation of Theophilus John (Pl/W.1) he observed as follows:-

“I may first of all say that his divison of the land for the purpose of development appears arbitrary. There is no basis for the figure of 200 acres industrial, 100 acres residential and 97.09 acres of open land and no reason why it should not be the other way round. There were no industries on the land in January 1960 when it was acquired. It was bush land with a few inconsequential buildings here and there built mostly by Obosi people and their tenants … Theophilus John also put the value of the residential area at 150pounds per acre per annum when the residential area of developed Fegge was 72pounds per annum per acre in 1960. I am therefore unable to accept the computation of the witness that the land was worth 1,875,000pounds in 1960 nor am I satisfied that the witness had the qualification or the training for the job.”

The view of the learned trial judge of the valuation of the land by Christian Onyedike is as follows:-

“Christian Onyedike a chartered surveyor and chartered estate agent evaluated the land at 10pounds per acre per annum. After considering all the evidence before me this amount in my opinion appears to be a better approximation of the value of the land at the time of the acquisition considering the value of the land at that time with some portions covered with water during the rainy season. I am however unable to agree with him with regard to the 12.5 years purchase. The first offer of 10pounds per acre per annum and 20 years purchase made by the Government appears to be a better approximation but I would prefer 25 years purchase asked for by the claimants.”

The learned trial judge then valued the land at 250pounds per acre and warded the claimants the sum of 99,250pounds for the 397.09 acres.

The learned trial judge rejected the contention of the government that the houses on the land had no value and then dealt with the claim in respect of these as follows:-

“I am of opinion that the claimants were entitled to be paid for the houses although I would not accept Gbadebo’s figures which appeared to be too high considering the nature of the buildings and the possible rents that might be collected on them and also considering the fact that at the time of acquisition the area was torn with strife. Some of the buildings about 137 in number were in fact worthless and only about 200 of them should have any value attached to them. I evaluate the buildings at 100pounds each and I award to the claimants the sum of 20,000 for the buildings.”

The claimants have now appealed against these awards, their main complaint being that the awards were glaringly arbitrary in every respect. Learned counsel for the appellants submitted that the learned trial judge should not have based his valuation on the evidence of Onyedike (D.W.1) who first visited the land in 1965 and whose valuation was made in that year, that is, five years after the government had acquired the land and entered into possession. He further contended that there was evidence that the land, with all these houses on it, had been partly developed and that the valuation in 1960 should have reflected this. Finally learned counsel submitted that Onyedike’s valuation of 10pounds per acre per annum was also arbitrary. The basis for it was not stated in court and he might as well have chosen the figure of 5pounds or 30pounds for that matter. He then submitted the the learned trial judge should have accepted the evidence of their own valuer and should have also taken into consideration the rent paid by the various oil companies who had obtained leases of land in the area long before the acquisition, and also the rent paid for land on Fegge and Modebe Layouts.

With respect to the buildings, learned counsel for the appellants submitted that since Gbadebo’s evidence was not contradicted by any of the witnesses called by the respondents, the learned trial judge should have accepted his evidence instead of making an arbitary assessment of the value of the buildings which he could not have seen five years after their acquisition. There was no basis, learned counsel contended, for valuing only 200 out of the 337 houses, and refusing to attach any value to the rest.

Finally learned counsel complained that although they asked for interest at 5 per cent per annum to be paid on any amount awarded, none was ordered by the learned trial judge.

In reply, Mr. Okadigbo, the Deputy Solicitor General, East Central State, who appeared for the respondents urged us not to disturb the award which was based on the totality of the evidence adduced before the learned trial judge who had the right to decide which of the witnesses he believed. He further contended that the learned trial judge was not in error in deciding to prefer the testimony of Onyedike (4th D.W.) to that of Theophilus John (1st Pl/W.). He, however, conceded that there was no material on which Onyedike based his valuation of 10pounds per acre for the land. He also conceded that while Gbadebo (14th Pl/W.) valued the houses at 600pounds which he thought was ridiculous having regard to the dilapidated state of the buildings, the testimony of the respondents’ expert (Onyedike) that they had no value was not accepted by the court.

We think that the learned trial judge was perfectly entitled as he did to reject the evidence of Theophilus John (1st Pl/W.) as to the value of the land as well as that of Gbadebo (14th Pl/W.) as to the value of the buildings thereon. We are also in no doubt whatever that it was within his power to assess the value of each building at 100pounds and to reject the assessment of 600pounds made by Gbadebo. We do not, however, share the views of the learned trial judge that the evidence before him justified his refusal to attach any value to some 137 houses after valuing 200 out of the houses on the land. It must be remembered that he was assessing in 1965 the value of the buildings as they were in 1960. Gbadebo, according to the evidence, carried out his own valuation in 1962, that is, two years after the acquisition. His testimony showed that the 337 houses had value at the time, and no where was this seriously contradicted. According to the evidence of Charles Agbu (4th Pl/W.), who testified that he took Theophilus John to the land in 1960 and had the photographs of the buildings thereon taken in 1962: “By that time all the occupants had been evicted. There were no people living in any of the 338 houses. The houses still remain unoccupied. ”

Surely, any house left unoccupied from the time the occupiers were evicted in 1960 to the time of the hearing of the claim was bound to deteriorate. In any case, as we have pointed out, there is no clear evidence in support of the finding of the learned trial judge that 137 out of the 337 houses were “worthless” at the time of their acquisition in 1960. In doing justice to all concerned and having regard to the evidence adduced at the trial, he should have assessed all the houses at 100pounds each. In other words, the buildings should have been valued at 33,700pounds instead of 20,000pounds as he had done.

We will now proceed to consider his evaluation of the land which comprises 398 acres approximately. The learned trial judge based his evaluation on the testimony of both Onyedike (4th D/W.) and Okoye (D/W.1). The evidence disclosed that what operated in the mind of Government in offering the claimants 10pounds per acre was what was paid for land acquired by government at Diobu in Port Harcourt, at Umuahia, and Enugu. These places are clearly too far away from the land in dispute to provide any suitable comparative evaluation data. Moreover, the dates on which these pieces of land were acquired were not stated. As for the testimony of Onyedike on which the learned trial judge so heavily relied, one must not lose sight of the fact that the valuation was carried out in August, 1965 (see the Report exhibit Z), that is, five years after the land had been acquired. One must also remember that the learned trial judge rejected his testimony that none of the buildings he found on the land had any value. There is also evidence that he took account of the history of the land, which to our mind was quite irrelevant, in assessing the value at 10pounds per acre. This is what Onyedike said:

“I also had to consider the history of the land. In 1960 January when it was acquired there were two claimants litigating over the land and therefore despite the fact that it was near Fegge, it was a big risk for an investor to invest his money on it for fear that if his vendor lost his claim he would lose his money. Also if a man invested his money for a property there, there would be no security for him for he might return home one day to find that his property had been demolished and also there was much risk of his moving out.”

To our mind, these considerations are completely irrelevant having regard to the very wide powers conferred on the government when it acquires land under the Public Lands Acquisition Law (Cap. 105 of the Laws of Eastern Nigeria, 1963) as in this case. Section 3(2) of the said Law reads:-

“Where any lands are or have been acquired under the provisions of this Law such lands shall, to the extent of the estate or interest acquired therein, be and be deemed to have been State lands for the purposes of the State Lands Law from the date of such acquisition …. ”

Section 28 of the said Law also provides for penalising any person who hinders the government from taking possession of such lands. Added to all these is the fact that the amount of 10pounds per acre given by Onyedike, and which the learned trial judge accepted, was clearly arbitrary. In our view, it is unlikely that the learned trial judge would have accepted the evaluation of Onyedike if he had adverted his mind to all the deficiencies to which we have referred. For this reason, we are in no doubt whatsoever that the value of the land should not have been based on the testimony of Onyedike.

The next question, then, is this; on what material, in order to do justice to all concerned, should the learned trial judge have based his valuation There is indisputable evidence that land at Fegge Layout which had also been acquired by Government around 1960 was being let at 72pounds per acre per annum while that of Modebe Layout costs 60pounds per acre per annum to rent. The survey plan No. 11.28/60 (exhibit J) showed that these two layouts were within the vicinity of the land in dispute. As a matter of fact, Fegge Layout, situate on the north of it, is more or less contiguous with it.

According to S. 15(b) of the Public Lands Acquisition Law (Cap. 105), in estimating the compensation to be given for any lands or any estate or interest therein, the value of the land, estate, interest or profits shall be taken to be the amount which such lands, if sold in the open market by a willing seller, might be expected to realise. In other words, evaluation of such land is based on the open market value. On this point, the following observation of Lord Romer in Gajapatiraju v. The Revenue Divisional Officer, Vizagapatam [1939] A.C.302 P.e. at page 312 is particularly relevant:-

“There is not in general any market for land in the same sense in which one speaks of a market for shares or a market for sugar or any like commodity. The value of any such article at any particular time can readily be ascertained by the prices being obtained for similar articles in the market. In the case of land, its value in general can also be measured by a consideration of the prices that have been obtained in the past for land of similar quality and in similar positions, and this is what must be meant in general by ‘the market value’ …. ”

Therefore, the prices paid for comparable property in the neighbourhood are the usual evidence as to the market value. (See the Gajapatiraju case (supra) at p. 313). Where, however, there is no reliable evidence of sales of comparable properties, as in the instant case, the usual method is to take rents of comparable properties and deduce the value therefrom (see Mucklow (A. and J.) and Co. Ltd. v. Central Land Board (1954) P. & e.R. 264); thereafter, the same requirements as to comparable sales will apply.

In the instant case, the rent paid for Fegge layout and Modebe layout, after each layout had been developed, is 72pounds per acre per annum and 60pounds per acre per annum respectively. As there was no evidence explaining the differential, it will be fair and just to take the average of the two rents in determining the rent paid for similar land in the neighbourhood. This works out at some 66pounds per acre per annum. There is evidence that the two layouts had been fully developed with roads, electricity and water whereas the land in dispute had not been so developed, at least, at the time it was acquired. Because of these improvements which must have enhanced the value of these neighbouring layouts, the average annual rental value of 66pounds will require adjustment. As has been pointed out in Compulsory Acquisition of Land by Cripps, 11th Edition para. 4 at page 690, a comparison of sales of comparable properties may require adjustment by reason of improvements carried out by the owner or lessee.

Therefore, in order to reflect the improvements carried out in these two layouts, we would earmark two thirds of this sum of 66pounds (that is 44pounds) for the provision of roads, electricity, and water there. Consequently, we value the rent of these adjoining layouts without the improvements at 22pounds per acre per annum. For the reasons which we have given, we regard this amount as the annual rental value per acre of the land in dispute at the time of its acquisition in 1960. Accepting the capitalised value at 25 years purchase, as the learned trial judge had done, this works out at 550pounds per acre. On this basis, the value of the 398 acres would be 218,900pounds and not 99,250pounds as found by the learned trial judge.

We are also of the view that the appellants are entitled to payment of interest in the sum awarded to them. As a matter of fact, they claimed interest at the rate of 5 per cent per annum from the date of acquisition of the land in paragraph 11 of their statement of claim. Evidence in support of this averment was given by Charles Agbu (4th Pl.W.). Significantly, he was not crossexamined about this part of their claim.

Having found as above, it follows that the evaluation of the learned trial judge should not be allowed to stand. The appeal is therefore allowed and the judgment of the Onitsha High Court in Suit No. 0/7/63 delivered on 26th January, 1966, including the order as to costs, is hereby set aside. We accordingly order that:-

(l)(a) the claimants/appellants be awarded the sum of 218,900pounds as compensation for the 398 acres of land acquired from them and 33,700pounds for the buildings thereon making a total of 252,600pounds;

(b) the claimants/appellants be paid interest on the sum awarded at the rate of 4 per cent per annum from date of the judgment of the Onitsha High Court to the date of payment;

(c) the claimants/appellants be awarded costs in the court below assessed at 300 guineas; and

(2) The foregoing shall be the judgment of the Court.

The claimants/appellants are awarded costs of this appeal assessed at 77 guineas.

There is one final point. George Nwabo (2nd D.W.), the cashier of the Onitsha High Court, testified that the appellants family had been paid the sum of 2,753pounds:4:6d out of the 50,000pounds deposited by the respondents in court pending the determination of the value of the acquired land. He did not, however, disclose why this sum was paid.

There is also evidence given by Joseph Dibi (3rd D.W.) that another sum of 24,218pounds:18:4d had been paid to some claimants in respect of the buildings. The learned trial judge made no reference to these payments when making his award. We therefore feel that the payment of this large sum totalling 26,972pounds:2:10d should not be overlooked when the orders made by us are being complied with.

SC.547/1966