3PLR – N.E.S.C.O. LTD. V. PAUL GYANG

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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N.E.S.C.O. LTD.

V.

PAUL GYANG

 HIGH COURT OF BENUE – PLATEAU

12TH JUNE 1979

  APPEAL NO: JD/4A/1970

3PLR/1979/17 (HC)

 

BEFORE THEIR LORDSHIPS:

BATE, S.P.J.,

JONES, J.

 

REPRESENTATION

Feibai, – for the appellant company

Oyetunde, – for the respondent

 

MAIN ISSUES

CONSTITUTIONAL LAW:- Federal Military Government (Supremacy and Enforcement of Powers) Decree, 1970 – Wayleaves Licences Law distinguished from Decree or Edict. – Whether Wayleaves Licences Law S.8(2) invalid for inconsistency with S.31(1)(b) and S.117(7)(a) of the Federal Constitution and with S.53. of the Benue-Plateau State Constitution

CONSTITUTIONAL LAW:- Compulsory acquisition of a right or interest in land, by way of a wayleave of right to carry electricity over land and to put up poles – Jurisdiction of court over same – Validity of law seeking to oust access to court over damages or claims for compensation arising therefrom

FOOD AND AGRICULTURE LAW:- Security of farm and farm produce – Claim for damages to crop arising from electricity and infrastructure development activities – Calculation of damages – Law precluding access to court for same – How treated

ENERGY AND INFRASTRUCTURE LAW:- Electrification projects – Compulsory acquisition of a right or interest in land – Wayleave – Right to carry electricity over land and to put up poles on land for that purpose – Damages arising therefrom – Claims for compensation – How resolved

TORT AND PERSONAL INJURY LAW:- Claim for compensation for damages to crops and farm  – Damages arising from electrification project (setting up poles) – How calculated

JURISPRUDENCE AND PUBLIC LAW:- Ouster of court’s jurisdiction – Right of appeal – Review powers of court over validity of legislations – Military Regimes – A Law which is neither a Decree nor Edict purporting to oust Court’s jurisdiction – Attitude of Court to same

JURISPRUDENCE AND PUBLIC LAW:- Access to court – Meaning – Need not use same as a term of art but as a concept capable of wide meaning – Whether can be satisfied by right of access to come to the High Court in the first instance but not on appeal – In the absence of any direction to the contrary in the Constitution, duty of court not to restrict the meaning of access to court – Validity of laws seeking to restrict right of access – How determined

WORDS AND PHRASES:- “Right of Access to Court” – Meaning – Whether is not a term of art but is capable of a wide range of meaning.

MAIN JUDGEMENT

BATE, S.PJ.:- Delivering the ruling of the Court:

The respondent instituted proceedings in a District Court to recover £57.15s.0d. damages for injury to the crops on his farm by the appellants. The appellants conceded that they were bound to pay compensation but contended that the value of the damaged crops was only 8s.7d. The learned District Judge gave judgement for the respondent for the sum claimed. The appellants have appealed to the High Court.

The respondent took a preliminary objection that no appeal lies to the High Court in this case. He contends that the dispute is governed by the Wayleaves Licences Law and notably by S.8(2). The latter provides that, “Where a dispute arises as to the amount of compensation payable such amount shall be determined by a court exercising jurisdiction in the area concerned and such decision shall be final.”

 

For the appellants it was at first conceded that the Wayleaves Licences Law applies but later it was said that this Law does not govern the case. The proceedings in the District Court were in the nature of an action for damages for a tortious act.

 

At this stage we ourselves felt that we must consider whether S.8 (2) of the Wayleaves Licences Law was valid in view of S.31 of the Federal Constitution and S.53 of the Benue-Plateau State Constitution and whether we have jurisdiction to hear his appeal.

At our invitation learned State Counsel have appeared before us as amici curiae to assist us in the solution of these questions. We are indebted to them for a most helpful argument.

Before State Counsel addressed us, Mr. Feibai for the appellants withdrew his concession that the Wayleaves Licences Law applies. He claimed that the appellants acted upon the authority of an agreement dated the 13th October, 1935. between the appellants and the Officer administering the Government of Nigeria and exhibited to the District Court. He relies notably on clauses 5, 9, and 10.

Mr. Oyetunde for the respondent objected that the appellants should not have been allowed to raise new points or change his ground at that stage.

In the alternative, he contends that, if the Wayleaves Licences Law does not apply, the appellants had no right to go onto the respondent’s land.

We think that no injustice was done by allowing Mr. Fiebai to address the court further since Mr. Oyetunde was given an equal opportunity to reply or to ask for an adjournment to enable him to consider the appellants’ contentions.

We have first considered whether the Constitution (Suspension and Modification) Decree, 1966, or the Federal Military Government (Supremacy and Enforcement of Powers) Decree, 1970, preclude us from considering the validity of S.8 (2) of the Wayleaves Licences Law. We have come to the conclusion that they do not. The effect of the latter enactment is to prevent courts from considering the validity of a Decree or Edict. But the Wayleaves Licences Law is neither a Decree nor an Edict. Therefore, we may properly consider the validity of S.8 (2) of the Law-

We have come to the conclusion that S.8(2) of the Wayleaves Licences Law, in so far as it purports, to make the decision of the trial court final, is invalid. The reasons are that it is inconsistent with the Federal Constitution S.31 (1) (b) and 5.117 and also with S.53 of the State Constitution.

With regard to S.31 (1) (b) of the Federal Constitution the record of appeal shows that there was compulsory acquisition of a right or interest in land, that is to say a wayleave of right to carry electricity over the respondent’s land and to put up poles on his land for that purpose. We find that the respondent’s claim was in substance a claim for compensation. S.31 (1) (b) confers on the respondent a right of access to the High Court for the determination of the amount of compensation to which he may be entitled. We have not been able to discover any guidance whether the right of access confers a right to come to the High Court in the first instance or whether a right to appeal to the High Court is enough to satisfy the section. The expression, right of access, is not a term of art but is capable of a wide range of meaning. In the absence of any direction to the contrary in the Constitution, we are not prepared to restrict its meaning to access at first instance. We cannot see that any injustice is likely to be done if there is access on appeal to the High Court. The effect then of S.31(1) (b) is to give a party claiming compensation for compulsory acquisition of his property or of a right or interest in such property a right of access, either direct or by way of appeal, to the High Court. In the present case it is not the person claiming compensation who seeks access. But this does not alter the fact that S.8 (2) of the Wayleaves Licences Law purports to deprive a person claiming compensation in a court of lower jurisdiction than the High Court of his right of access to the High Court. To this extent S.8 (2) is inconsistent with S.31(l) (b) and is invalid.

 

With regard to 5.117 of the Federal Constitution, this confers a right of appeal from the High Court to the Federal Supreme Court. S.117 (2) (a) gives an appeal as of right in civil proceedings before the High Court sitting at first instance. Consequently, if the present case had been heard at first instance in the High Court, S.8(2) of the Wayleaves Licences Law would have purported to do away with a right of appeal conferred by S.117(2) (a) and for that reason would have been invalid.

 

S.8 (2) is also inconsistent with S.53 (1) of the State Constitution which confers a right of appeal as of right to the High Court from a subordinate court.

 

We, therefore, over-rule the respondent’s preliminary objection that the decision of the trial court was final and that no appeal lies to the High Court.

 

Preliminary objection over-ruled.

 

 

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