S. O. Williams Permanent Secretary, Ministry Of Works And Housing V Joseph Folarin Kamson (1967) LLJR-SC
S. O. Williams Permanent Secretary, Ministry Of Works And Housing V Joseph Folarin Kamson (1967)
LawGlobal-Hub Lead Judgment Report
ADEMOLA C.J.N.
This is an appeal by the appellant who on behalf of the Federal Ministry of Works and Housing brought an originating summons before the High Court of Lagos under the Public Lands Acquisition Act Cap. 167, to determine the amount of compensation to be paid to the defendant in respect of his residential buildings and factory buildings acquired by Government on land which now forms part of the Campus of the University of Lagos. A sum of £35,646 was offered as compensation to the defendant which he declined to accept although a portion amounting to £15,000 was paid and accepted by him to make it possible for him to move his factory to another site whilst the matter of the amount of compensation payable was contested
In his statement of interest filed on 23rd January 1967 the defendant claimed a sum of £241,339 which he set out in paragraph 14 as follows-
“14. The defendant says that he is entitled to receive compensation of £241,339
(a) Land £ 9,468
(b) Building erected 1957/58 £ 51,460
(c) Cost of removal £ 27,938
(d) Loss of income and overhead during installation at new site £ 12,609
(e) Incidental Expenses £ 26,270
(f) Damage to Machinery £ 123.062
Total £241.339
On 17th May, 1967 an amended statement of Interest was filed by the defendant, without leave, and on 24th May, 1967 on an application to the court, leave was given and the amended statement of interest already filed without leave was duly adopted. Paragraph 14 of the amended statement of interest reads-
“The defendant says that he is entitled to receive compensation on either the basis of alternative site or the total extinction of the business as follows:-
(1) Basis of alternative site.
(a) Land 7.89 acres at £1,200 per acre £9,468
(b) Building Erected 1957/58
(i) Factory 33,280
fluorescent light bulbs 101 at £3 second hand price 303
(ii) Residence (Bungalow) 1,916
(iii) Residence (Storey House) 42,304
(c) Cost of removal 19,379.15s.
(d) Loss of Income and overheads 9,727
(e) Incidental Expenses 26.270
Total £ 142.647.15s.
(2) Basis of Total Extinction
(a) Land £ 9,468
(b) Building erected 1957/58 £ 33,280
(i) Factory
FLUORESCENT LIGHT 303
(ii) Residence (Bungalow) 1,916
(iii) Resident (Two storey Houses) 42,304
(c) Cost of Machinery 81.318
Total £ 168.589:
In his judgment, the learned judge rejected the alternative claim, namely, the claim for extinction of business. We refer to the portion of his judgment when he said:-
“1 think, however, there is some substance in plaintiffs counsel’s argument that assessment should be based on alternative site being purchased because when defendant’s Company received the £15,000 from the plaintiff as part of the value of purchase money of an alternative site, he did not refund the money back to Government at anytime on the ground that he could not get any alternative site. On that basis I am of the opinion that there is some justification that he, defendant, is estopped to claim compensation for extinction of business because of non-availability of alternative site”
In this regard we have no hesitation in coming to the conclusion as the learned judge that the defendant cannot stake his claim on the extinction of business.
A total compensation of £73,547.15s.11d. on the basis of alternative site was awarded by the learned judge. In making this award the teamed judge stated that the case presented some difficulties to him in that there were different valuations – three different valuations by the plaintiff, and two different ones by the defendant; the three by the plaintiff were given by Government officers. The learned judge first sought to resolve his difficulties by dismissing the assessment of compensation on the basis of extinction of business on which the defendant claimed a total of £168,589 referred to wrongly by the judge as £113,000. We agree with the learned judge that this claim cannot be substantiated since the defendant did not return the amount of £15,000 given to the him for the purpose of moving from the site to a new one to continue his business. He then proceeded to consider the claim on the basis of compensation based on the availability of alternative site.
As we stated earlier he awarded compensation of £73.547.15s.11d. which he arrived at by accepting the assessment of one of the defendant’s valuers in respect of buildings – the factory and the residential buildings. This is in exhibit H which is the valuation of Mr. Ekpenyong who was the defendant’s first witness. The amount shown in exhibit H for the factory and residential buildings is £42,304 which the learned judge accepted; but we observe that again he wrongly awarded a total of £51,772 by including £9,468 which was separately put in exhibit H as value of the land. Added to the cost for buildings the judge allowed a sum of £21,105 as solicitors fees and valuers fees and also a sum of £980.15s.11d for some machinery in crates which were exposed to sun and rain and got depreciated and became useless: whichever way one adds up the figures there was a slight mathematical error in the total awarded but we are not concerned with this.
The plaintiff has appealed against the judgment and the grounds of appeal filed are as follows:-
“3. Grounds of appeal
(1) The learned trial Judge erred in law when he stated at page 8 of the Judgment at page 48 of the record that “Other items for change of address, new letter heads, professional fees for drawing alternative accommodation etc., and valuers fees and solicitors’ fees which were estimated to be totalled £21,015 would be allowed” because compensation cannot legally be paid for such items in view of the decision in Akinola Maja v. Chief Secretary to the Government 12 W.A.C. 392:
(2) The learned trial judge erred in law in entering judgment for the sum of £980:15.s.11d., for goods which were contained in the crates outside the factory when the defendant did not claim for them and more especially when the learned trial judge had rejected the claim for total extinction.
(3) The decision is unreasonable unwarranted and cannot be supported having regard to the evidence.
It is apparent then that the appeal before us relates to the award of £21,105 being amount expended by the defendant as a result of the acquisition and which may be properly called damages suffered by him; also the award of £980.15s.11d awarded for some machinery in crates. As a matter of fact, the latter was not the subject of a claim before the learned judge and the respondent’s counsel before us, wisely in our view, agreed that this award should be withdrawn as it was not claimed. The main argument therefore centred on the former award of £21,105.
On this point, learned counsel for the defendant/respondent has filed on behalf of his client a notice of his intention to contend that the judgment be affirmed on grounds other than those relied on by the learned trial judge, and so it was that before us the main contention was whether the defendant is entitled to any more than the value of his buildings in an open market.
We think it necessary at this stage to give a brief history of the land and buildings acquired. The defendant/respondent who has been carrying on textile business from 1938 decided to set up a factory in what was then known as a remote part of the town.
He acquired about 11 acres of land at Oka Ogbe, Yaba East and bulk a factory which he said is worth £33,500. He also built a bungalow and a two storey building both to the value of about £6,130 according to his estimate.
He was the first to set up on his own a factory of this nature producing textile goods from raw cotton and production started on this site in 1958. In 1962 k was necessary to extend the site earmarked for the University of Lagos. Government acquired compulsorily the whole of his land and in 1964 a sum of £15,000 was paid the to him as an advance against compensation to be awarded so that he might find another site and also
Other Citation: (1967) LCN/1554(SC)