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BEFORE THEIR LORDSHIPS:
SIR LIONEL BRETT, F.J. (Presided)
JOHN IDOWU CONRAD TAYLOR, F.J. (Dissented)
SIR VAHE BAIRAMIAN, F.J. (Read the Lead Judgment)
(For himself and as representing the Esin Family of Eyo Abasi)
LAND LAW – Compulsory acquisition – Public Lands Acquisition Ordinance – Conflicting claims to parcel of land – How resolved.
PRACTICE AND PROCEDURE – JURISDICTION – Public Lands Acquisition Ordinance, Cap 185, 1948 – Claims arising therefrom – Jurisdiction of court to hear.
Chief M.E.R. Okorodudu, Q.C. (with him, J. Alele) -for the Respondents.
BAIRAMIAN, F.J. (Delivering the Lead Judgment): The defendants complain against the judgment of the High Court, Eastern Region, declaring the plaintiff’s family to be owners of an area of land at Oron which includes the in the compensation case referred to.”
Thus it is clear that the parties had conflicting claims, and the proper course for the Esins was to prosecute their claim of title upon the summons in the compensation proceedings. Chief Ekpo Esin was present at that hearing, but the Judge’s notes do not show that he advanced any claim. Dr. Esin was absent; and paragraph 7 of his Statement of claim shows that he and his people decided to establish by Court action their title to the land acquired by Government. He sued Atang Edem Abasi and two others in the Native Court of Oren (the proceedings are Exhibit M) stating that –
“The Plaintiff claim right of title and ownership for the land on which the customs site is situated on Esin Ufot, Eyo Abasi, Oren, as being his hereditary landed property, the land in question having been bought and used for over 40 years by the following ancestors of his” etc.
The judgment was “For defendants Case dismissed”. Below that there are notes of review by an Assistant District Officer, who, in the absence of the parties, at the request of the plaintiff, made an order on 31st January, 1955, under section 28(1) (b) of the Native Courts Ordinance, that the Native Court suit be retried before the Supreme Court of Nigeria. In the former Supreme Court the suit number is C/2/1955; eventually it was heard in the High Court of the Eastern Region, and judgment was given for the plaintiffs for the land shown on plan No. ISH. 3 verged red – plaintiff’s exhibit A – an area which includes the land acquired by Government (verged yellow on the plan) plus some land to the west and south of it.
The defendants in their appeal against the judgment have objected that the suit in the Native Court related to the land acquired by Government; that the Native Court could not have entertained such a suit; that, consequently, the Assistant District Officer could not validly have ordered a retrial; and that therefore the proceedings in the former Supreme Court and its successor, the High Court, were a nullity.
The plaintiff argues that the suit in the Native Court was not about compensation, and, in any case, it related to a larger area than that acquired by Government. The first argument has no substance: both Dr. Esin and Atang Edem Abasi, not to mention Chief Ekpo Esin, were respondents to the compensation summons, and the dispute on title to the land acquired should have been litigated upon the summons in the former Supreme Court and could not have been litigated in the Native Court in a suit between Dr. Esin and Atang Edem Abasi. Did the suit in the Native Court relate to a larger area?
The terms of the claim in the Native Court are not clear, but when one reads the inspection note and the Finding below it (page 175 of the typed record) one sees that the Native Court understood the dispute to relate to the “Customs Site”, that is to say the land acquired by Government. The inspection note suggests that the perambulation asked for by the parties went no further south than the road which is the southern boundary of the land acquired by Government. The finding relates to that land only. If the inspection note is not absolutely clear, it is not unreasonable to read it in the light of the Finding. In my view the Native Court suit related to the land acquired by Government. (There is no need to consider whether the Native Court could have entertained a claim to a larger area including that land).
In my judgment, therefore, the defendants’ objection succeeds. I have to add that the matter is not so simple as it might appear: although it is the High Court which adjudicated on title, it did so in proceedings which it could not have entertained. Section 10 of the Public Lands Acquisition Ordinance confers jurisdiction in these terms – (as in the original text) –
“The amount of compensation due, if any, and every such case of disputed interest or title shall be settled by the Supreme Court, which court shall have jurisdiction to hear and determine in all cases mentioned in this section upon a summons taken out by the Chief Commissioner or, if the lands are situated in the Colony, the Chief Secretary, 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 ordinance to sell and convey the same.”
A summons was taken out by the Lieutenant-Governor (the successor of the Chief Commissioner); there was already a dispute between Dr. Esin and Atang Edem Abasi, and both were respondents to the summons. The Supreme Court had jurisdiction to hear and determine their dispute upon a summons taken out under that Ordinance; it had no jurisdiction to hear it in a suit between Dr. Esin and Abasi brought in the Native Court contrary to law and invalidly ordered to be retried in the Supreme Court.
I propose making an order as follows – The appeal from the judgment of the High Court, Eastern Region, dated 30th October. 1959, be and is hereby allowed, and the proceedings in the Calabar Suit No. C/2/1955 be and are hereby set aside as a nullity, with costs of appeal to the Appellants/Defendants assessed at ninety guineas, and in the court below at sixty guineas.
BRETT, F.J.: I concur.
TAYLOR, F.J: This appeal was called on Monday, the 6th day of May 1963 on which day two matters were raised by this Court for the consideration of learned Counsel in this appeal. On the 9th day of May, 1963 one of the matters raised was argued and that was as to whether the Native Court of Oron had jurisdiction to entertain Suit No. 563/54 in view of the fact that the area referred to as the Customs Site had been acquired by the Government under a Notice given in 1952. As to the second point it was conceded by Counsel that if the appeal is to be heard on the merits then it will be necessary for the Court to have before it Exhibit “B” – the proceedings in the Magistrates Court – which was formally marked during the hearing in the Court below on the point of the validity of the order of transfer, but which by oversight was not included in the list of exhibits in the proceedings now before us. I shall here confine myself solely to the first point to which I have above referred.
It cannot be disputed that if, at the time the Suit was instituted in the Native Court of Oron, the whole of the land in dispute had been the subject matter of acquisition by the Government, any question relating to compensation and indeed any conflicting claims to title must be determined by the High Court and not the Native Court. The point, and in my view, the sole point for our consideration at this stage of the appeal is whether the land the subject matter of the claim in the Native Court, and here I place emphasis on the words the subject matter of the claim, was land over which the Native Court had jurisdiction. To decide this point one is perforce obliged to look at the Writ in that Court and any other matter in those proceedings which will be of assistance in determining the area of land which was the subject matter of the Writ. The claim reads as follows:
“Plaintiff claims right of ownership and title for the land on which the Customs Site is situated on Esin Ufot Eyo Abasi, Oron, as being his hereditary landed property the land in question having been bought and used over 40 years by the following ancestors of his: this land was bought by my grandfather, Esin Anwana Esin from Chief Anwana Nyeke both of Eyo Abasi; by my grand uncle Bassey Anwana Esin, from Ukpaema both of Eyo Abasi; by Chief John Anwana Esin my father from Chief Nya Umo, both of Eyo Abasi; cost of the land about £14: 10:- and a cow only.”
No plan was filed in the Native Court, but from the claim one sees that the land in dispute consisted of three plots of land purchased:
(1) by Esin Anwana Esin from Chief Anwana Nyeke;
(2) by the plaintiff’s grand uncle Bassey Anwana Esin from Ukpaema; and
(3) by Chief John Anwana Esin, plaintiff’s father from Chief Nya Umo.
Evidence of the purchase of these plots of land was deposed to by the plaintiff in the Suit in the Native Court and judgment was entered for the defendants and plaintiff’s case was dismissed. This dismissal can, in my view, only have reference to the claim as set out by me above. Now in order to determine the area of land in dispute it is necessary to refer to the plaintiff’s plan filed in this Suit on appeal before us for in the order of transfer we have as one of the reasons for transferring the case to the then Supreme Court the following:
“The parties to this case have retained the services of lawyers and wish to submit survey plans of the area in dispute during the proceedings.”
When one looks at the plan filed, Exhibit “A”, and the evidence of the plaintiff explaining the portions A, B, C and D depicted on the plan, it will be seen that the area marked “B” is the same as the first plot purchased from Chief Anwana Nyeke, that the area marked “C” is the same as the second plot purchased from Ukpaema, and the area marked “D” is the third plot purchased from Chief Nya Umo. As to the fourth plot which is marked “A” on the plan and in respect of which the receipt of purchase, exhibit “C”, was tendered it is referred to by the plaintiff in the Native Court case in these words:
“There is a small another piece of land on the old road side to the waterside which my father bought from Eyo Abasi Chiefs for £13 in 1918, 17th January. This piece of land is included on the side where Customs is built.”
There can in my view be not the slightest doubt that the area the subject matter of the Native Court suit was the land shown as edged red in Exhibit “A”. To say that because the claim begins by saying that the area is the one on which the Customs Site is situated, therefore that claim relates and relates only to the area edged yellow on Exhibit “A” is to say that in a claim for title to land on which a certain premises is situate, the area in dispute is just a mere strip of land which houses the four corners of the particular erection. I am fortified in the view I hold by the fact that the area edged brown in Exhibit “A” is not a part and parcel of the land in red claimed by the plaintiff, and part of the Customs Site is included in that area. The Customs Site is contained in an area measuring 10.67 acres whilst the total area of land claimed by the plaintiff is 19.39 acres. Of the 10.67 acres comprising the Customs Site an area of 2.67 acres contained in the area edged brown is outside the area claimed by plaintiff and edged red. The net result being that the area of land remaining after the Customs Site has been excised is larger than the latter. It cannot and has not been contended that the Native Court has no jurisdiction over the larger area of land. Further the area remaining after the Customs Site has been excised is, as shown in Exhibit “A”, a defined area. In my view the proper course to take is to excise the Customs area, the smaller area over which the Native Court had no jurisdiction for the reasons already stated, from the rest of the land in dispute and hold that there was jurisdiction to entertain the suit. The effect is that the evidence relating to Plot C, which is wholly taken up by the Customs Site, will be discountenanced. As for plots A, B and D, only portions have been acquired for the Customs and the evidence relating to the purchase of all the plots would be material. I should say that I am not here guided by what would be the more convenient course to take in view of the sole issue before us as already set out by me. I would therefore hold that there was jurisdiction in the Native Court to that extent.