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IBAFON COMPANY LTD
NIGERIAN PORTS PLC
COURT OF APPEAL
LAGOS JUDICIAL DIVISION
30TH MARCH 2000
17 WRN 56
BEFORE THEIR LORDSHIPS
GEORGE ADESOLA OGUNTADE
PIUS OLAYIWOLA ADEREMI
IBAFON COMPANY LTD.
KOLAWOLE ABAYOMI BALOGUN
Mr. A.O. Olomola with him, Mr. B.O. Ayorinde and Miss. M. Akintan – for the appellants
Mr. J.J. Ndupu, Senior Legal Officer with him, Mr. S.O.Ajayi – for the 2nd, 3rd and 4th Respondents
Mr. Seyi Sowemimo S.A.N. with him, Mr. M.O. Sowemimio and Mr. M.A. Adewope – for the 7th Respondent/Cross-Appellant
Mr. Emeka Ngige with him, Mr. A.O. Egwuatu – for the 9th Defendant/Respondent/Cross-Appellant
PRACTICE AND PROCEDURE – COURT – Federal High Court – whether has exclusive jurisdiction to adjudicate on action invoking the scope of the powers of the Ports Authority and the delimitation of ports area – Federal High Court (Amendment) Decree No. 60 of 1991 and ss.7 & 19 of Federal High Court (Amendment) Decree of 1993 considered.
PIUS OLAYIWOLA ADEREMI, JCA (delivering the leading judgment)
In the court below (High Court of Lagos Sitting in Lagos) the appellants as plaintiffs claimed against the respondents as defendants the following reliefs:
(1) A declaration that alienation by the 1st defendant to the 5th, 6th, 7th, 8th and 9th defendants and/or other private business concerns for private business/commercial use of lands acquired by the Federal Government, from the plaintiffs, on the ground of “public purpose” and the use of these lands by the said defendants and/or other private concerns for their own profit making business/commercial ventures is not a “public purpose” under the Public Lands Acquisition Act Cap 167 and consequently, such alienations are illegal, unlawful, null and void and of no legal effect whatsoever.
(2) A declaration that the two parcels of land measuring 2.835 and 1.333 hectares originally belonging to the 1st and 2nd defendants respectively before the purported compulsory acquisition of the same in June 1976 by the Federal military Government of Nigeria have ceased to be under any valid legal acquisition and should automatically revert to the 1st and 2nd plaintiffs, the same having not being used for any public purposes.
(3) An order of inquiry/account into the total sum of rents collected so far from the alienation of the said parcels of land, by the 1st defendant since June 1976 to the date of judgment and a direction that the said total sum be paid over to the 1st and 2nd plaintiffs in proportion to their respective lands.
(4) An order of perpetual injunction restraining all the defendants either by themselves, their servants, agents and/or privies from further trespassing upon, alienating, transacting business or doing anything whatsoever in respect, or on the said parcels of land forming the subject-matter of this suit.
(5) IN THE ALTERNATIVE ONLY
A declaration that the plaintiffs are entitled to compensation for the said acquisition (should this Honourable Court find same to be legal) and an enquiry as to the amount of compensation payable to the plaintiffs by the 2nd to 4th defendants.
Pleadings were exchanged between the parties. Evidence was led in, proof of the averments in their different pleadings. After taking the addresses of counsel, the trial judge in a reserved judgment delivered on 31st March 1994 found for the plaintiffs that they were the parties vested with title to the property on or before June 1976, he also held that no Notice of Acquisition was served on the plaintiff and consequently declared the purported acquisition illegal and the entry upon the land by the defendants therefore constituted trespass for which damages ought to be awarded. It was also his judgment that the use of which the land was put, as established by the evidence before him, did not constitute use for public purpose under the Public Lands Acquisition Act Cap 167 and to that extent, the acquisition was again illegal. He again, consequently, held that the plaintiffs having proved their case were entitled to an order of perpetual injunction to ward-off further trespass on the property. But he declined to make an order against the defendant as the 1st, 2nd and 4th defendants had already leased the said land to other persons.
Being dissatisfied with the part of the judgment wherein the trial judge declined to make an order of perpetual injunction on the defendants, the plaintiff filed a Notice of Appeal dated 3rd May 1994 incorporating two grounds of appeal which are in the following terms:
(1) The learned trial judge erred in law and on the facts in holding as follows:
“to restrain the defendants perpetually on the use of the parcels of land is to legislate for the present Executive as to what use to make of a particular scheme. The defendants are not averse to the plaintiffs using the land but there is, no parcel of land available to be leased out.”
PARTICULARS OF ERROR
iii. Once the acquisition is declared to be illegal, the ability of the defendant to lease or otherwise grant the plaintiff the use of the property becomes irrelevant as the defendant and its assigns or agents become trespassers, liable to damages for their continued use of the property.
“From the evidence adduced by the defendants especially the 1st defendant witness, it was obvious that the 1st defendant had no parcel of land available to give the plaintiffs, Exhibit N. refers to recompensate them for the land acquired for public purposes but being leased out to private business concerns …………………..
Consequently, the plaintiffs are hereby ordered to lead evidence on their alternative claims.”
PARTICULARS OF ERROR
Distilled from the said grounds of appeal and, detailed in the appellants’ brief of argument are two issues which are in the following terms:
(i) In view of the evidence before the court, and their earlier findings of the trial judge in the suit whether the trial judge was right to have declined to make the order of perpetual injunction restraining the defendants from continuing their acts of trespass into the properties in dispute and in the circumstances, whether the said trial judge was right to order the plaintiffs to lead evidence on their alternative claims.”
(ii) The interest of the plaintiffs in the properties subject-matter of this suit vis-a-vis the interest of the 9th defendant therein.
The 7th defendant/respondent/cross/appellant cross-appealed by the Notice dated 5th February 1998 but filed on 26th February 1998 on the aspect of the decision of the court below whereby it (court below) declined to grant the injunction sought by the plaintiffs. Four grounds of appeal were filed and they are as follows:
PARTICULARS OF ERROR
(i) The claim against the 7th defendant was filed to the 1st defendant who was its predecessor-in-title.
(ii) 1st defendant was necessary party to the suit for the action to be properly constituted.
(iii) The benefit arising out of the plea of time bar ought also to have availed the 7th defendant.
(iv) The entire cause of action concerning the compulsory acquisition had become extinguished.
PARTICULARS OF ERROR
(i) By the terms of Decree No 60 of 1991 as Amended (Date of Commencement) Order 1993 s.19 of 1993 jurisdiction over matters pertaining to the powers and duties of the Ports Authority and matters with respect to which the Federal Government could make laws were vested in the Federal High Court.
PARTICULARS OF ERROR
(i) The plaintiff/company was incorporated only in 1980.
(ii) The public acquisition was effected in July 1976.
(iii) The transaction was not capable of being ratified.
PARTICULARS OF ERROR
(i) The Notice of Acquisition was duly served.
(ii) The land in dispute was being used for port related activities.
Distilled from the grounds of appeal of the 9th (sic) [7th] defendant/respondent/ cross-appellant are five issues which I set out here under:
The 9th defendant/respondent/cross-appellant also cross/appealed against the whole decision, two grounds of appeal are incorporated into the Notice of Appeal and they are in the following terms:
(1) The learned trial judge erred in law and on the facts when he held that the plaintiff had proved that the acquisition of the land, the subject-matter of the action was illegal, null and void.
PARTICULARS OF ERROR
Failing to hold that the acquisition was within the legal competence of the 1st to 4th defendants having regard to the provisions of Public Lands Acquisition Act Cap 167 Laws of the Federation of Nigeria 1958 which was in force at the time of the acquisition.
(2) The learned trial judge erred in law and on the facts when having held that the acquisition of the land in dispute was wrongful he held that the said land including the 9th defendant’s land had reverted to the plaintiffs.
(i) Failing to hold that the acquisition remains valid by virtue of Sections 3 and 5 of the Public Lands Acquisition Act Cap 167 Laws of the Federation of Nigeria, 1958 notwithstanding any finding by the trial judge that the purpose of the acquisition had failed, which, in any event, would be wrong in law and on the facts.
(ii) Failing to hold having regard to Exhibits E and E that the 1st plaintiff, Ibafon Company Limited came into legal existence in 1980, when the name of Ibafon Hotels Limited was changed to that name and could neither have changed to that name and could neither have purchased the land comprised in Exhibit A in 1976 nor, by Exhibit D ratified the purchase in 1978 when the 1st plaintiff had not come into legal existence.
(iii) Failing to hold that since at the time of the execution of the document in 1978, the purported grantors, Oluwa family, had lost their right to grant the land by virtue of the acquisition of the same in 1976 and the purported grantee, the 1st plaintiff having not come into existence at the time Exhibit D was executed, the Exhibit was null, void and of no effect whatsoever and neither the 1st plaintiff nor the 2nd plaintiff could derive any interest therefrom.
(iv) Failing to hold that since neither the 1st nor the 2nd plaintiff could establish that the land claimed by each from the 9th plaintiff fell within its/his own purported holding and there being no composite plan, the plaintiffs’ claim must fail against the 9th defendant even if the acquisition had failed as the plaintiffs claimed separate pieces of land neither adjoining nor contiguous.
Distilled from the grounds of appeal of the 9th defendant/cross-appellant are four issues which I hereunder set-out:
When this matter came before us on 25th January 2000 for argument, having satisfied ourselves that the 5th, 6th and 8th respondents were served with the hearing notices, counsel present were called upon to argue the appeal. Mr. Ndupu, the Senior Legal Officer representing the 2nd, 3rd and 4th respondents informed the court that he did not file any brief on behalf of his clients. Mr. Oluwole, learned counsel for the appellants adopted the appellants brief filed on 14th/8/95 and urged this court to allow the appeal and dismiss the cross-appeal.
Mr. Sowemimo learned S.A.N. and counsel for the 7th respondent adopted the brief filed on behalf of his client on 1/6/99; he urged that the main appeal be dismissed and the cross-appeal be allowed while calling in aid the decision in Crownstan & Co. Ltd. v. The Vessel MV Vali (2000) 1 NWLR (Pt. 639) 37 on the issue of jurisdiction.
Mr. Ngige, learned counsel for the 9th defendant/respondent/cross-appellant also adopted the cross-appellant’s brief filed on 10/12/96. While urging that the main appeal be dismissed he urged that the cross-appeal be allowed.
I shall start the consideration of this appeal with issue 4 raised in the 7th Respondent/Cross-Appellant’s brief which challenges the jurisdiction of the court below to proceed with the case after 26th August 1993. This is because issue of jurisdiction is so fundamental to adjudication. It is of such importance that it could be raised at any stage of the proceedings, even at the appellate level. Indeed, jurisdiction is the legal authority by which a court has to decide matter that are litigated before it. Since a court is invariably a creation of the statute its authority to enter into adjudication is necessarily controlled by statute. The control or limitation may be either as to the kind and nature of the actions and matters that may be brought before the court or as to the area over which the jurisdiction extends. A court is said to have original jurisdiction in a particular matter when that matter can be properly initiated before it, in law. And where a court takes it upon itself to exercise jurisdictional power where none exists, its decision amounts to nothing. The jurisdiction of the court should be examined not when it is invoked but when the cause of action arose. See Uwaifo v. A-G. Bendel State & Ors. (1982) 7 S.C. 124. It is the law and it is sacrosanct that it is the claim of the plaintiff which determines the jurisdiction of the court entertaining it. See Adeyemi & Ors. v. Opeyori (1976) 9 & 10 S.C. 31. I have examined the statutory provisions the likes of the Federal High Court (Amendment) Decree No. 60 of 1991. Section 7 thereof and Section 19 of 1993 Federal High Court (Amendment) Decree that came into force from 26th August, 1993 and I do agree that to the extent to which an action may invoke the scope of the powers of the Ports’ Authority and the delimitation of the Ports area, the power to adjudicate on it is exclusively that of the Federal High Court. But, as I have said above it is the claim of the plaintiffs that determines the jurisdiction of the court. But a cursory reading of the reliefs sought together with the amended statement of claim leaves me in no doubt that it is the acquisition of land by the 2nd, 3rd and 4th defendants/respondents that constitutes the substratum of the entire case.
Without the acquisition of the land by the government, there would be nothing to assign to the 1st defendant for its use by the government. And if the acquisition of the land suffers some illegality any subsequent act predicated on an illegally acquired land is null and void. This is so because no one gives what he does not possess; the Maxim is NEMO DAT QUOD NON HABET. He gives nothing who has nothing. In paragraphs 3 and 4 of the amended statement of claim the plaintiffs/appellants aver thus:
The crucial issue for determination is whether the acquisition of 1976 was valid. It is only when the acquisition is adjudged to be valid that the issue as to whether the court could adjudicate in the matter to the extent to which Ports Authority Plc. is affected would arise. This case affords a classical case for the application of the principle that a court may, by statute, lack jurisdiction to deal with a particular matter, but it has jurisdiction to decide whether or not it has jurisdiction to deal with such matters. See Barclays Bank of Nig. Ltd. v. Central Bank of Nigeria (1976) 6 S.C. 175. I shall now examine the records with a view to seeing whether the land was properly acquired according to law. In his judgment the trial judge held inter alia:
“The 2nd plaintiff testified that he surveyed the land and fenced it …….. But the 2nd plaintiff further testified that he was not served with any Notice of the acquisition. Even the 9th defendant witness who claimed that the land was acquired after he had been in occupation did not state that he was served with any notice of acquisition.
It follows therefore that the defendants especially the 4th defendant did not comply with the provisions of Sections 5 and 9 of the Public Land Acquisition Act Cap 167 of 1958 the defendants especially have not established the service of Notice of the said acquisition on the plaintiffs or anybody for that matter in that vicinity. This could only mean that the 4th defendant did not serve the necessary notice. Failure to serve the necessary notices on the owners or occupiers of the land or in a conspicuous place on the land renders the acquisition illegal and I so hold. That, acquisition of the plaintiffs’ land is therefore a nullity.”
I have gone through the testimony of the defendants, there is nothing in it to controvert the finding of the trial judge that Notice of Acquisition was not served on the plaintiffs. The law on the importance of service of Notice of Intention to acquire land was aptly stated by Nnaemeka-Agu J.S.C. in Attorney-General Bendel State & Ors. v. Aideyan (1989) 4 NWLR (Pt. 118) 646 when at page 673 he said and I quote:
“It is therefore the clear intention of the law that publication of the notice served on him in the Gazette shall be after personal service of that or in the manner stated.
Much as in certain other situations publication in the Gazette constitutes constructive notice to the whole world, the combined effect of Sections 5 and 9 of the Bendel State Public Lands Acquisition Law set out above is that constructive notice is not enough. The law insists upon actual notice of the intention to acquire. So, anything short of that amounts to non-compliance with the express provisions of the law.”
Sections 5 and 9 of the Bendel State Public Lands Acquisition Law which turned for consideration in the Aideyan case are in pari materia with the provisions of Sections 5 and 9 of the Public Lands Acquisition Act Cap 167 Laws of Nigeria and Lagos 1958 applicable to this case. Having established that no Notice of Intention to acquire was served on the plaintiffs/appellants. It therefore follows that issues 2 and 3 formulated by the 7th defendant/respondent/cross-appellant in its brief must be answered in the affirmative: and I so do. There was no acquisition known to law as Notice of Intention to acquire land was not served. On the claim for perpetual injunction claimed the trial court held and I quote:
“It follows therefore that perpetual injunction has an everlasting effect which remains continuously and unabated in perpetuity except by an act of interference of an appellate court. Because of its very nature of finality, it can only be granted if the plaintiff can successfully prove his case on the balance of probability or the preponderance of evidence………….. The plaintiffs in this case have successfully proved their case on the preponderance of evidence and are entitled to the perpetual injunction being sought.
If however on grounds of public policy, the defendants especially 1st defendant are unable to satisfy this judgment.
I will consider the alternative claims of the plaintiffs. It is not the duty of the courts to usurp the functions of the Legislature even under a Military Regime. The primary duty of the courts is to adjudicate while the Executive/Legislature legislate for the State……………………………..
Therefore to restrain the defendants perpetually on the use of the parcels of land is to legislate for the present Executive as to what use to make for a particular scheme. The defendants are not averred to the plaintiffs using the land but there is no parcel of land available to be leased out. The alternative is to compensate the plaintiffs.
From the evidence adduced by the defendants especially 1st defendant witness, it was obvious that the 1st defendant had no parcel of land available to give the plaintiffs……………………….. Consequently, the plaintiffs are hereby ordered to lead evidence on their alternative claims.”
Having held that the purported acquisition was null and void, the interest of the 1st defendant in a void acquisition is itself void, it is non sequitur. No parcel of land passed to the 1st defendant from the acquiring authority – the Government particularly the 2nd and 4th respondents.
The court below also held inter alia, in its judgment that the 4th defendants are liable to the plaintiffs for an actionable trespass for which damages are payable. The law is settled that where damages are payable for trespass to land and there is an ancillary claim for injunction the court will grant it. See Obanor v. Obanor (1976) 2 S.C.1. Issue 1 in the appellants’ brief is therefore answered in the negative. The trial judge ought to have granted the order of perpetual injunction sought. For the same reason, issue 1 raised by the 9th defendant/cross-appellant is answered in the affirmative. The learned trial judge having held that the plaintiffs had proved their case and thus entitled to the declaration sought, would be right to have made an order of perpetual injunction in their favour. And I also answer issue 5 in the 7th defendant/respondent/cross-appellants’ brief and issue 4 on the 9th defendant / respondent / cross-appellant’s briefs in similar vein.
Flowing from what I have been saying issue 1 formulated by the 7th defendant/respondent/cross-appellant on its brief of argument is answered in the affirmative. Issues 1 and 4 raised up by the said 7th cross-appellant are non sequitur in view of the finding that the acquisition which is the substratum of the case is adjudged to be void. On issue 2 formulated by the appellants, from their pleadings, both the plaintiffs and the 9th defendant claimed to derive their title from the Oluwa Chieftaincy Family, but the title deed of the plaintiffs/appellants was earlier in point of time. The plaintiffs/appellants, therefore, have a better title to that of the 9th defendant/cross-appellant. Therefore in proffering an answer to issue 2 on the appellants brief, I hereby hold that the title of the plaintiffs/appellants to the land is superior to that of the 9th defendant/cross-appellant. Again since, I have adjudged the acquisition to be null and void and therefore no land was validly passed to the 1st defendant issues 2 and 3 raised by the 9th defendant/cross-appellant do not arise. Having regard to all that has been said, the plaintiffs/appellants having proved their substantive claims there was no justification for the court below to want to embark on the consideration of the alternative claims.
In conclusion, the appeal of the plaintiffs/appellants is adjudged to be meritorious. The cross-appeal of the 7th defendant/respondent/cross-appellant and that of the 9th defendant/respondent/cross-appellant are unmeritorious and are hereby dismissed. The third leg of the reliefs sought relates to the 1st defendant whose name has since been struck-out from the suit. It has thus ceased to be a party to the case. Can this court make an order against someone or a body who is not a party to the suit? My answer is no. It is for this reason that I shall not countenance the third leg of the relief.
In conclusion, therefore, judgment is entered in favour of the plaintiffs/appellants in the following terms:
(1) The alienation, if any, by the 1st defendant to the 5th, 6th, 7th, 8th and 9th defendants and/or other private business concerns for private business/commercial use of lands acquired by the Federal Government from the plaintiff on the ground of public purpose and the use of these lands by the said defendants and/or other private concerns for their own profit making business/commercial ventures is not a “public purpose” under the Public Lands Acquisition Act Cap 167 and consequently such alienations are illegal unlawful, null and void of no legal effect whatsoever.
(2) It is hereby declared that the parcels of land measuring 2.835 and 1.333 hectares originally belonging to the 1st and 2nd defendants respectively before the purported compulsory acquisition of the same in June 1976 by the Federal Military Government of Nigeria which have since ceased to be under any legal acquisition shall revert to the 1st and 2nd plaintiffs immediately.
(3) An order of perpetual injunction is hereby made restraining all the defendants either by themselves, their servants, agents and/or privies from further trespassing upon, alienating, transacting business or doing anything whatsoever in respect of or on the said parcels of land forming the subject matter of this suit.
The plaintiffs/appellants are entitled to the costs of this appeal which I assess in their favour at N3,000.00 against the 2nd, 3rd and 4th respondents, N2,000.00 against the 7th respondent/Cross-Appellant and N2,000.00 against the 9th defendant/Respondent/Cross-Appellant.
G.A. OGUNTADE, JCA.
I read before now a copy of the lead judgment by my learned brother Aderemi J.C.A. I agree with his reasoning and judgment. I would also make the same orders as in the lead judgment.
AMIRU SANUSI JCA
The judgment of my learned brother Aderemi J.C.A. was made available to me before now. Having gone through it, I am in entire agreement with reasons and conclusion my Lord reached. I adopt them as mine. I also see merit in the appeal. I abide by all the orders made and the terms upon which the appeal is allowed. I as well endorse the orders on cost made in the said judgment.
Cases referred to in the judgment
Adeyemi & Ors. v. Opeyori (1976) 9 &10 S.C. 31.
Attorney – General Bendel State & Ors. v. Aideyan (1989) 4 NWLR (Pt.118) 646.
Barclays Bank of Nig. Ltd. v. Central Bank of Nigeria (1976) 6 S.C. 175.
Crownstan & Co. Ltd. v. The Vessel MV Vali (2000) 1 NWLR (Pt. 639) 37.
Obanor v. Obanor (1976) 2 S.C. 1.
Uwaifo v. A-G.Bendel State & Ors. (1982) S.C. 124.
Statutes referred to in the judgment
Public Lands Acquisition Law, Bendel State ss. 5 & 9.
Public Lands Acquisition Act, Cap 167, Laws of Nigeria and Lagos 1958 ss.3; 5 & 9.
Federal High Court (Amendment) Decree No. 60 of 1991.
Federal High Court (Amendment) Decree 1993; ss 7:19.