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SUPREME COURT OF NIGERIA
BEFORE THEIR LORDSHIPS:
Oshodi, S.S.C. (with him J.B. Oki) – for the appellant
Lardner (with him, Fatungashe and Jacob) – for the respondents
REAL ESTATE/ LAND – Compulsory Acquisition of Lands-Assessment of Compensation-Judge rejecting evidence of experts-But eventually basing his findings on testimony of expert.-Whether proper-Public Lands Acquisition Act s.15.
PRACTICE AND PROCEDURE
COKER, J.S.C. (delivering the judgement of the Court):-
This case is a sequel to the compulsory acquisition by the Government of leasehold interests in lands comprising-
“of all those parcels of land… situate, lying and being at Iju-Adiyan in the Egbado Division of Western Nigeria portions of which lie within the Iju Water Works Catchment area.”
The original defendant to the action was the Minister of Lagos Affairs but the Attorney-General of the Federation was subsequently substituted therefore in view of the present constitutional arrangements in the country. The action originated in the High Court, Ikeja (Suit No. IK/185/63) where the plaintiffs, now respondents, claimed a declaration that they are the owners for an estate in fee simple absolute of the lands referred to, an order fixing £600 per acre per annum as a fair rental value of the said lands and for payment over the plaintiffs of such amounts found due to them in respect of the “aforementioned acquisition and previous user of the said parcels of land.”
There is no dispute as to the occupation of the lands in question by the Government and indeed it was the case that the lands, or a substantial part of them, are at present being used as the Iju Water Works serving a rather large area of the Lagos State. The defendant however states, and indeed contends, that the lands had already been leased to the “Colonial Government” some years back by the Alake of Abeokuta as part of the hereditary properties attaching to the throne of Ebgaland. At the trial the plaintiffs gave evidence of how they came to be owners of the lands in question. The defendant was unable to establish the title of the Alake of Abeokuta to the lands and the learned trial judge, rightly in our view, concluded that on the evidence before him the plaintiffs had established their ownership of the lands concerned.
The claim through the Alake of Abeokuta was based upon two instruments of lease, one dated 1910 and the other 1915 by which the Alake in Council had purported to grant leasehold interests in the lands concerned to the Colonial Government at the time stated in the leases. The claim for user of the land between 1910 and 1958 was withdrawn during the trial. We point out therefore at this stage of this judgement that in the court below as well as before us, by virtue of an amendment of the claim, the case had proceeded on the basis that what the Government has now acquired, and for which compensation is being claimed, was the absolute title to the lands concerned and not any lease-hold interest by virtue of which reversionary rights may arise. What had precipitated the present action is the fact that the Federal Government had, despite its occupation of the lands by virtue of the leases, now issued notices signifying its intention to take on leases of the lands concerned and inviting claims from those who could establish that they are entitled thereto as owners of the said lands.
After hearing both parties and in the course of a reserved judgement, Somolu, J., [as he then was], found that the lands in question belonged to the plaintiffs who have sued for themselves and on behalf of and as representatives and attorneys of all the farmers of Iju-Adiyan in Egbado Division, Western Nigeria. He observed in his judgement thus-
“It follows, therefore, that nothing now debars the plaintiffs from get-ting their declaration of title and I hereby declare them to be the owners under native laws and custom of all the lands covered by the notice exhibit 1 and the deed of lease, exhibit 8. I also find as a fact and also in law that they are entitled to the compensation payable for them.”
The learned trial judge then proceeded to assess the monetary compensation payable to the owners in respect of the lands so acquired, payment in respect of the crops destroyed on the land having previously been made. He decided that compensation must be assessed as at the date of the acquisition notice and before us there had been no argument as to the correctness of that decision. On this aspect of the matter the learned trial judge observed as follows-
“Having given all relevant factors careful consideration,… I assess the value of the lands acquired by virtue of exhibit 1 at £450 per acre, because I think that if the farmers whose land were acquired at Ikeja, for example, were offered the land in dispute by the plaintiffs for purchase, they will be most willing to pay that rate for lands which, as has been admitted by witnesses, are much more fertile than their own.”
The judge then pronounced judgement in the following terms-
“There will therefore be judgement for the plaintiffs for the sum of £249,345 in respect of the 554.1 acres acquired in exhibit 1, or £518,805 for the whole area of the 1,152.9 acres which the Government claimed to hold by virtue of exhibit 8…”The defendant has appealed to this Court against the award. The com-plaint before us was that the learned trial judge wrongly chose the amount of f450 per acre as the basis of his assessment of compensation and that in consequence of this the awards made by him were manifestly excessive. At the trial both sides gave evidence touching on the value to be placed on the lands acquired and indeed both sides called experts who, rather disturbingly, gave different versions of the value to be attached to the lands in dispute.
The learned trial judge did direct himself to the proper method by which an assessment in the circumstances of this case should be made. He observed as follows in respect of this point in the course of his judgement-
“Indeed, it can be stated that this statutory provision was judicially interpreted by the Court in the case of Commissioner of Lands v. E.FA. Adeleye (1938) 14 N.L.R. 109 where it was said that “the best guide to an estimate of the value of the land in any given neighbour-hood is the evidence as to the price at which actual sales in the locality have been made.”
He also referred to section 15 of the Public Lands Acquisition Act. The expert called by the plaintiffs was the 7th P.W. and concerning that witness the learned trial judge observed as follows-
“The 7th P.W. told me that he went on the land and interviewed the Bale and others but, having visited the area, I have no hesitation in saying that that was a piece of mendacity and I must reject his valuation.”
The expert called by the defence was the 8th defence witness and concerning that witness the learned trial judge had this to say-
“As for the 8th D.W, he was a bit better in that he did not try to mislead me. He readily agreed that he did not interview any farmers in the area, he did not try to investigate prices of land in the neighborhood, he had no comparables to go by and he completely ignored all other factors which could have guided him in his task. I must reject his own evidence too.”
With respect to the two experts who gave evidence before him concerning the value of the lands acquired the learned trial judge observed that-
“Both of them have come to quote for me arbitrary figures with no basis, and the least I can say is that they have betrayed their high callings and reduce themselves, regrettably, to the status of learned incompetents.”
The learned trial judge then considered a number of cases of compulsory acquisition and the amounts of monetary compensation stated to have been paid for the lands concerned therein in areas which were clearly outside the lands in question in the instant case. He also made statements tending to escalate the values of the lands in question and ascribing to those lands a greater measure of utility than appears on or from the written evidence. Eventually he came to the conclusion to which we have already referred.
We feel bound to observe that consideration of assessment of compensation, like most cases of assessment, must be based upon evidence proffered in court and certainly not on any other expediency. We have ourselves care-fully perused the record of appeal in this case and are satisfied that most of the observations of the learned trial judge in this connection were not based on any recorded evidence as they should have been and in any case having rejected the evidence of the two experts called by the parties to give evidence of valuation before him, we are utterly surprised that the learned trial judge was willing eventually to base his findings on the testimony of the experts or either of them. We think the appeal of the assessment of compensation must succeed and that the issue of assessment must be properly determined.
Learned counsel for the plaintiffs had asked us to consider making an interim award in favour of the plaintiffs. Lands now adjudged to belong to the plaintiffs were “acquired” by Government by virtue of Government Notice No. 2345 dated the 28th November, 1958, and although they were paid for their crops destroyed on the land the plaintiffs have not up till today been paid a penny for their lands compulsorily acquired. It is now over eleven years since the acquisition took place and we are of the view that special consideration must be given to the plaintiffs in this case. They were described in the proceedings as farmers and we do not think that the hardship they must have suffered could be over-estimated. We think that pending the re-hearing of this case on the issue of measure of compensation an interim award of an amount for the purchase of the absolute interests of the owners of the lands should be made to the plaintiffs.
The appeal succeeds on the issue of compensation and it is allowed. It is ordered that-
(i) The case be sent back to the High court, Ikeja, for the issue of the measure of compensation to be re-heard and properly determined in accordance with the relevant statutory provisions governing the measure of compensation in such cases;
(ii) Pending the hearing and determination, an award of £50 per acre to be made to the plaintiffs or any one of them who can establish entitlement to the lands in question herein and that the awards be deducted from whatever amounts are adjudged due to them finally. In view of the fact that the plaintiffs themselves have won on part of the appeal concerning the challenge to their ownership of the lands, we think the appeal is one in which no order should be made for the payment of costs of appeal in favour of either side and the parties should bear their own costs in this Court. We direct that the costs of the hearing should abide the event and should take cognizance of the fact that costs of 500 guineas have already been awarded in favour of the plaintiffs.
Appeal allowed in part: case sent back to High Court for issue of assessment to be properly determined.