ATTORNEY-GENERAL OF BENDEL STATE & 2 ORS. v. P.L.A AIDEYAN

Delivered by

Nnaemeka-Agu,J.S.C.:

This is a further appeal by the Defendants against the judgment of the Court of Appeal, Benin Division, which had dismissed their appeal against the judgment of Moje Bare, J., sitting in a Benin High Court.

The subject-matter of the suit is a four-storey building situate on a plot lying opposite the Specialist Hospital, G.R.A., Benin City. The plaintiff, Mr. Aideyan, had bought it from the government lessee thereof, called OwonoOgbemudiaAsemota, who, with all necessary consents, assigned it to the plaintiff in 1975. The plaintiff erected a four-storey building on the plot. By a notice published in the Bendel State Gazette No.219 of the 29th of April, 1976, the Government of Bendel State purported to acquire the property for public purposes, to wit: office premises. Despite protests by the plaintiff against the acquisition, the Defendants held on to the property. At a point in time the Defendants offered to pay to the plaintiff N400,000.00 as compensation for the purported acquisition, which offer the plaintiff rejected. Then the plaintiff filed a writ. The claim was as follows:

1. Declaration that the purported acquisition of all that piece or parcel of land situate along Benin/Sapele Road, Adjacent to Federal Prisons, Benin City in the Bendel State of Nigeria under the Bendel State Extraordinary Gazette No.24 of 29th April, 1976 is unconstitutional, illegal, null, void and of no effect, on the grounds that:

(a) The purported acquisition was not for one of the purposes for which the land could be acquired.

(b) The purported re-entry and/or acquisition was not made bona fide but maliciously and for consideration other than the best interest of the Government of Bendel State.

(c) The purported acquisition and re-entry was persecutory and oppressive.

……………………………B……………………………

Alternatively.

1 Declaration that the plaintiff is entitled to be paid fair and adequate compensation in accordance with the provisions of the constitution of the Federal Republic of Nigeria.

2. Injunction restraining the Defendants and/or agents from using the said plaintiffs property unlawfully and against his will plus payment of N1,500,000 special and general damages for trespass to the property or in the alternative.

3. Order of the Court that the plaintiff be paid the sum of N1 ,500,000 as compensation for the property.

After hearing, the learned trial Judge, Moje Bare, J., in a well-considered judgment, made important findings of facts, namely:

(i) That the land upon which the plaintiff erected his house and which was purported to have been compulsorily acquired was State Land;

(ii) That the land was purportedly acquired, and so the cause of action accrued, on the 29th of April, 1976, before the Public Lands Acquisition (Miscellaneous Provisions) Decree, of 1976, was promulgated on the 2OthofJuly, 1976;

(iii) That Public Lands Acquisitions Law of Bendel State, Cap. 136, could not have been used to acquire what was already State land; and that once such a land has been leased to a person possession thereof can only be resumed by the State under section 17 of the Law or for one or the other of the limited purposes specified in section 24 of the Law (i.e. for of making roads, railways, canals, tramways, and the

(iv) That even if such a land could be acquired compulsorily, on the evidence before him, a notice of the acquisition was not served upon the plaintiff as provided by law, before it was published in the Gazette, the Nigerian Observer Newspaper and by hand bills placed on Oba’s Palace in Benin: the registered letter dispatched to the plaintiff was returned unclaimed;

(v) That no certificate of title on the government was pleaded or tendered.

……………………………C……………………………

In the end, he concluded:

In the present action the plaintiff is saying and I find as a fact that his property was not compulsorily acquired as required by law and that the purported acquisition is a nullity.

On the question of damages he found that 2 P.W. UcheOtti, an expert of Harriman Epega& Co. who testified as to the rents the plaintiff was offered for the premises was not cross-examined at all and that no contrary evidence was before the court. He therefore believed the evidence. That witness testified that through his firm of Estate Agents and Valuers, the plaintiff had been offered the following rents by willing tenants:-

(i) N42,000.00 per annum for the ground floor

(ii) N26,000.00 per annum for the 1st floor

(iii) N26,000.00 per annum for the 2nd floor

(iv) N4,500.00 per annum for each of the 2 flats on the 3rd floor.

After carefully examining the above against the applicable laws on the points, he entered judgment for the plaintiff. He made the declaration sought, awarded the above sums as mesne profits calculated from the date of the purported acquisition. He, however, struck out the claim for damages for trespass and, upon the information that the Defendants had moved into the premises as an extension for the Specialist Hospital and were negotiating a lease thereof, he declined to make an order of injunction. He also awarded N1,500.00 as costs against the Defendants.

The Defendants appealed to the Court of Appeal, Benin Division, which Court dismissed the appeal with costs of N1,500.00. In the detailed and able lead judgment of Ikwechegh, J.C.A., which was also supported by the concurring judgment of OmoEboh, J.C.A., he examined all the intricate points of law and of facts raised in the appeal and agreed largely with the learned trial Judge. On the question of financial award for mesne profits he said:

The trial Judge found upon the evidence he received what the total value of the letting to the Respondent would have been and he awarded this sum as mesne profits. It’s only the appellation or terminology that is wrong here. The sum awarded on principle is correct, as it represents the amount of loss that appellants had forced upon the Respondent, or the cost that it would have cost the appellant to hire and use the Respondent’s property with his licence and blessing. It is now only to designate this amount awarded as “damages for trespass”, instead of terming it mesne profits.

Musdapher, J.C.A., in his concurring judgment, agreed with the conclusion in the lead judgment. He, however, expressed the opinion that the learned trial Judge was in error when he stated that a state land cannot be compulsorily acquired. He held that it can only be acquired through the provisions in section 17 and 24 of the State Land Law. As I have stated, the learned Justices unanimously dismissed the appeal.

……………………………D……………………………

The Defendants, hereinafter called the appellants, have appealed further to this Court. Arising from the grounds of appeal filed, counsel on both sides agreed upon and argued the following issues for determination, as framed by the learned Counsel for the appellants:

(1) Whether state land can be acquired by Public Lands Acquisition Law.

(2) Whether the property de facto without technicalities of the law, was acquired.

(3) Since the plaintiff claimed a specific amount in his evidence in court and on the statement of account, could he have been properly awarded an amount higher than that specifically claimed?

(4) Where a trial Judge in his judgment struck out a particular head of claim, should a Respondent who wants that claim restored, cross-appeal or even come by way of Respondent’s notice or is the scope of the power of the Court of Appeal so extensive to enable the court restore the claim without a cross-appeal?

(5) Can a claim not made in the Writ of Summons be raised in the statement of claim without the Writ of Summons being amended to include that claim?

(6) After the trial Judge had struck out the claim for special and general damages, could the Court of Appeal have proceeded to assess the damage on the basis of what the trial Judge held to be mesne profits but which was only claimed in the statement of claim and not in the Writ of Summons.

(7) Were the “damages” of N949,000.00 awarded to the Respondent not excessive in view of his claim for N1,500,000.00 as fair and adequate compensation for the building.”

Before I proceed to examine the above issues, I would like to make one observation. Many of the above issues have been framed in the abstract, that is without proper regard to the facts of this case. This has led to unnecessary theorizing and examination of circumstances which are far from the facts of the case. As I warned in Buriamoh V. Bamgbose (1989) 3 N.W.L.R. (Pt.109) 352 at p.361, issues framed in the abstract may be attractive in a purely academic exercise, but are of little practical forensic value. I shall however examine them the best I can. The plaintiff shall hereinafter be referred to as the Respondent. Because of the number and weight of the issues raised, I believe it will make for clarity if I break them into different point headings and deal with them accordingly.

I must confess that I do not understand why the learned Counsel for the appellants, after framing the above issues, went back to base her arguments in her brief on the grounds of appeal. This is in error. This Court has stated a number of times that once issues for determination have been framed from the grounds of appeal filed, argument should be based not on the grounds of appeal, but on the issues for determination. Apart from these procedural errors, I must commend counsel on both sides for the able way in which they martialled their arguments both in their briefs and in oral argument.

……………………………E……………………………

Jurisdiction of the Court of Trial

One obvious result of the wrong approach of the learned Counsel for the appellants in going back to argue the appeal on the grounds of appeal after framing the issues for determination rears its ugly head with respect to ground 5 of the Grounds of Appeal. In that Ground, the appellants complain as follows:

The learned Justices of Appeal erred in Law when they held that the trial Judge had jurisdiction to entertain Suit No.4/263/79 filed by the Respondent despite the provisions of Public Lands Acquisition (Miscellaneous Provisions) Decree No.33 of 1976.

Particulars of error

(1) There is undisputed evidence that the Bendel State Government had actually entered the land in accordance with the provisions of the State Land Law and which at the worst amounts to notice of Intention under the Public Land Acquisition Law.

(2) The combined effect of Sections 1, 13 and 20 of Decree No. 33 of 1976 ousts the jurisdiction of the Court.

Surprisingly, none of the issues for determination set out above takes care of, or incorporates, the complaint in this ground of appeal. Counsel will do well to remember that one result of the introduction of brief-writing in this Court and the Court of Appeal is that in the brief, issues for determination should comprehend and supercede the grounds of appeal. They ought to arise from the grounds of appeal filed. Where, as has happened in this case, a ground of appeal filed is not covered or taken into account by the issues for determination, as framed, the appellate court may, rightly in my judgment, take the view that such a ground has been abandoned. I shall, however, consider ground 5 in this appeal for two reasons.

First it raises an issue of jurisdiction. If, in fact, the court of trial had no jurisdiction to entertain the suit, it cannot acquire the jurisdiction by acquiescence or submission: the issue of jurisdiction is most fundamental. See Onyema & Ors. v. Oputa& Anor.(1%7) 3 N.W.L.R. (Pt.60) 259

Secondly: that ground was fully argued by counsel on both sides.

By that ground, the learned Counsel for the appellants is saying that the High Court of Bendel State had no jurisdiction to hear and determine the suit because it was a matter cognizable by a Land Tribunal constituted under the Public Lands Acquisition (Miscellaneous Provisions) Act, No.33 of 1976. In her submission, the substance of the claim was the quantum of compensation payable to the Respondent.

In his reply, the learned Senior Advocate for the Respondent pointed out that the main action of the Respondent was one seeking for a declaration that the acquisition was null, void and of no effect and claiming damages for trespass, the claim for mesne profits being only in the alternative. As the Act is a law which merely regulates the payment of compensation, it is not appropriate for the claim in this suit, he submitted.

For a proper appreciation of the intendment and scope of the Act (No.33) of 1976, 1 shall quote in full section 13, which inter alia learned Counsel for the appellants relied upon in her argument. This section provides as follows:

13. Notwithstanding anything to the contrary in any law a Lands Tribunal shall to the exclusion of any other court have power to hear and determine –

(a) any question relating to or concerning the ownership, whether beneficial or otherwise, of any land to be compulsorily acquired by the Government for the public purposes of the Federation or of a State; and

(b) any question relating to or concerning the amount of compensation payable in respect of such acquisition and the persons entitled to such compensation.

……………………………F……………………………

Sections 1 and 20 have nothing to do with jurisdiction as such. It appears to me that section 13 clearly vests in the Land Tribunal established under Section 12 of the Act, the jurisdiction to hear and determine cases in which all questions relating to or concerning:

(i) the ownership of all lands to be compulsorily acquired by Government for public purposes, of the Federation or of a State;

(ii) the amount of compensation payable in respect of such acquisition and the person entitled to such compensation.

Clearly, the Land Tribunal was thus created as one of limited jurisdiction. Its jurisdiction took it for granted that there had been a valid act of acquisition, leaving the live issues to be questions of the quantum of the compensation for the acquisition and the person or persons entitled thereto. It has not conferred general jurisdiction of dealing with all questions relating to acquisition of such lands, which could have left it arguable whether or not dispute as to whether or not a particular land has been acquired by Government is within the jurisdiction of the Tribunal. The two subject matters of the jurisdiction, to wit: ownership of the land and the quantum of compensation payable to such owners are specifically mentioned in section 13 of the Act which deals with jurisdiction. The Tribunal is therefore one of limited jurisdiction. It must be regarded as perfectly settled, in this country at least, that when a court or tribunal is created as one of limited jurisdiction, it can only exercise judicial powers within the confines of the jurisdiction so conferred. See on this:

Bronik Motors Ltd. V. Wema Bank Ltd. Bronik Motors Ltd. V. Wema Bank Ltd. (1983)1 S.C.N.R. 396; AihajiZannerBukarMandara V.The Attorney-General of the Federation (1984) 4 S.C. 8.

It is the foundation of the vires of the particular court or tribunal to entertain the issue in litigation in the subject matter in the suit. As my learned brother, Obaseki, J.S.C., stated at page 46 of the report in Mandara’s Case?

Jurisdiction is never conferred in obscurity. The language of the law must be clear and positive and I find this to be so in all our laws including all the previous Constitutions of this country. Jurisdiction is a power clearly visible to all the beholders of the Constitution and the law that confers it. Microscopic eyes are not required in order to unearth it.

It is my view that as the jurisdiction conferred by section 13 of the Public Lands Acquisition Act, No.33 of 1976 is confined to determination of issues of ownership and quantum of compensation to be paid to such owners as the Tribunal may ascertain, it has no jurisdiction to decide a case, such as this, in which the gist of the action is that the land in question is not capable of being acquired at all and that, in any event, even if it could properly be acquired, the purported acquisition was null, void and of no effect. It does not matter, in my view, that there was an alternative claim for mesne profits. Such matters as form the subject-matter of the claim are properly for determination by the regular courts of unlimited jurisdiction, in this case the High Court of Bendel State. I therefore agree with the learned Counsel for the Respondent that objection to the jurisdiction of that court to hear and determine the matter is misconceived. The High Court of Bendel State was, therefore, properly seised of the matter in litigation and rightly exercised its judicial powers thereon. In any event, the Decree No.33 of 1976 which came into effect on the 1st of July, 1976, and had no retroactive effect cannot properly be used for the determination of the rights of the parties with respect to an acquisition purported to have been made with effect from the 29th of April, 1976. I therefore hold that ground 5 has no substance.

……………………………G……………………………

De Facto Acquisition

I must next dispose of the second issue, that is: whether the property had been acquired de facto, rather briefly. I do not know what learned counsel means by de facto acquisition. I say so on the usual connotation that de facto is used in contradistinction to de jure. Something exists de facto but not de jure when the factual situation of its existence does not qualify for recognition in law. I doubt whether this situation of de facto acquisition is possible at all. In Nigeria, one’s right to one’s property was an entrenched constitutional right under section 31 of the 1963 Constitution as indeed, it is under section 40 of the 1979 Constitution. That right is inviolate. In the ipsissimisverbis of the Constitution itself, such a property or any right attendant thereto can only be taken possession of or compulsorily acquired by or under the provisions of a law. Furthermore, such a law must provide for the payment of adequate compensation therefore to him and must give the owner the right of access to a High Court for the determination of his interest in the property and the amount of compensation due to him. It follows therefore that any purported acquisition which is not according to a law containing the above provisions is no acquisition at all in the eyes of the Constitution. I therefore agree with the learned Senior Advocate for the Respondent that there can be nothing like a de facto acquisition: any such purported acquisition outside, or not in complete compliance with, the provisions of a law with the above safeguards, is completely null and void. Any entry pursuant to such a void acquisition is trespass which will sound in damages. It would be an abuse of language to call an entry by a trespasser an acquisition.

Having said so, the two main issues on the question of liability are:

(i) whether a state land can be lawfully acquired compulsorily in Bendel State otherwise than under sections 17 and 24 of the State Land Law of Bendel State; and

(ii) whether, assuming that it could be so acquired, the Respondent’s leasehold property, the subject of this suit was, in fact and according to law, duly acquired.

Can A State Land be Acquired Compulsorily?

It is the contention of the learned counsel for the appellant that any land, including State land, can be acquired for public purpose under the Public Lands Acquisition Law, Cap. 136, Laws of Bendel State, 1976. She pointed out that ‘lands” have been defined in that Law as ‘any estate or interest in lands.” In her submission the word “any” in section 3 includes both private and public land as well as land already acquired by Government. She conceded it that the lease in question here is a building lease. She also conceded it that the size of the land in dispute in this case is far less than the 200 acres specified in section 24 of the State Land Law and that the published purpose of the acquisition is not one of those specified in that section. Yet, she submitted that because of the wide definition of ~land” in section 2 of the Public Lands Acquisition Law (Cap. 136), Laws of Bendel State, 1976, to include “any Land”, State land leased to a person is included and therefore can be acquired compulsorily by Government for any public purposes defined in section 2.

……………………………H……………………………

In his brief and oral argument, Mr. KehindeSofola, S.A.N., for the Respondent submitted that the object of the Public Lands Acquisition Law is to wrest title compulsorily from the owner except where he agrees to vest it in the Government. Once Government has title to the land, there is nothing left to be compulsorily acquired, he submitted. He pointed out that a lessee of a state land is put into possession for a limited period and for a particular purpose. In his submission it is wrong to use the general definition of ~’land” to mean ~’any land” in the statute to come to the conclusion that any land, including state land which has been leased to certain persons, can be compulsorily acquired. That approach by Musdapher, J.C.A., was in error in that it does not take into consideration the specific provisions relating to the subject and which should have governed the general definition of “land” in the statute. There are four types of leases under the State Lands Law, namely Agricultural, Building, Railway Site, and Non-European Occupation Lease. The State Lands (Leases) Regulations made clear distinctions between them, separate Regulations applying to separate types of leases. As this was admittedly a Building Lease, the learned Justice of Appeal was in error to have applied Regulation 15(B)(b) which applies to Non-European Occupation Leases to this which was a Building Lease, he submitted.

I wish to begin my consideration of this important issue in this appeal by agreeing with the learned Counsel for the appellants that ”lands” is defined in section 2 of the Public Lands Acquisition Law (Cap. 136) Laws of Bendel State, 1976, in general terms. It simply means ”any estate or interest in land.” But that general word cannot be decisive of the issue. For, ”lands” goes together with ”acquisition”: and by accepted rules of construction, both words must be construed together. An important aspect of my inquiry is therefore what the intendment of the two words, construed together, is. I must state straightaway that the correct procedure is not to take the word “land” in isolation, construe it, and use the construction for the ascertainment of the intendment of the legislation. In other words, the true meaning of the general word ‘lands” in the particular context may be confirmed, restricted or extended when read together with ”acquisition”. Maxwell: On Interpretation of Statutes (12th Edn.) at p.86 put this approach to construction succinctly thus:

However wide in the abstract, general words and phrases are more or less elastic, or admit of restriction or extension to suit the legislation in question. The object or policy of this legislation often affords the answer to problems arising from ambiguities which it contains. For it is a canon of interpretation that all words, if they be general and not precise, are to be restricted to the fitness of the matter, that is, to be construed as particular, if the intention be particular.

See on this: Cox v. Hakes (1890)15 App. Cas 506; Stradling v. Morgan (1560) 1 Plowd. 199. Hence in Wandsworth Board of Works v. United Telephone Co. Ltd. (1884)13 Q.B.D. 904, the English Court of Appeal applied the principle of interpretation to ascertain the meaning of the word “street” in section 12 of the Telegraph Act 1863 to include the area of ordinary user of a portion of the ground of a street as well as the areas below and above the surface of the street, notwithstanding what the result might have been in the conveyance of a “street” at common law. Therefore, as in the case in hand the word “land” is general in meaning, that meaning may be confirmed, extended or restricted by the word “acquisition” which must be read and construed together with it.

……………………………I……………………………

This brings me to the question: what is the meaning of the word “acquisition”, under the Public Lands Acquisition Law (Cap. 136) Laws of Bendel State? Now, the ordinary dictionary meaning of the “acquire” is ..to gain or get as one’s own by one’s own exertions or qualities”. This implies getting or gaining what was not one’s own (see The Shorter Oxford English Dictionary: Vol.1 p.18) See also Webster’s New Twentieth Century Dictionary (2nd Edn.) p.18. This is the sense in which it has been used in different aspects of law. It is in the sense that we talk of a wife’s “after acquired property” after her desertion: See Nicholson v. Drury Building Co. 7 Ch. D. 48; Hill v. Cooper (1893) 2 Q.B. 85. Similarly in relation to strict settlements: R v. Cluer, 67 L.J.Q.B. 36. So it is also in relation to patents and trade marks: See Starey V. Graham (1899)1 Q.B. 406, p.411. More relevantly, it is its connotation under the Acquisition of Land (Assessment of Compensation) Act of 1919: Blackpool Corporation V. Starr Estate Co. Ltd (1922) A.C. 27. See also the opinion of the Court of Sessions in M’Corkindale v. Caledonian Railway, 31 S.C.L.R. 563. From all these judicial opinions and more, and from the ordinary meaning of the words “to acquire”, I am of the clear view that a person cannot acquire property which is already his own. So, “lands acquisition” under the Public Lands Acquisition Law (Cap. 136) Laws of Bendel State, 1976, relates to acquisition by the Government of lands over which the Government had no title before the act of acquisition. Under section 3, it involves, in the absence of a voluntary agreement, invocation of the compulsive and expropriatory power of Government to wrest title from an owner of land in accordance with law which guarantees payment of adequate compensation to the owner and right of access of such an owner to court to assert his right to the property and claims such compensation. It is therefore a contradiction in terms to say that Government can thereunder acquire a state of land, title to which is already in the Government. The Court of Appeal, Lagos Division came to the same conclusion in L. S.D. P.C. v. Foreign Finance Corporation (1987)1 N.W.L.R. (Part 50) 413, at p.448. From what I have just said, it follows that although the word “lands” in section 2 is general in meaning and wide enough to include any land or any estate in land, its true meaning in the context of that legislation is influenced and cut down by the word “acquisition”.

Besides, I also agree with the learned Senior Advocate for the Respondent that the express provisions of the statute itself do not support the inference that all leasehold interests in state lands could be compulsorily acquired by Government. There is a specific provision in section 17 of the Law for forfeiture of the lease only for arrears of rent or breach of any other covenant in the lease. Forfeiture in all such cases can be ordered by a court of law, subject to the usual relief against forfeiture, if upon notice of the arrears of rent or other breaches the state lessee fails to remedy the breach or pay the arrears of rent, as the case may be. Another provision in the Law itself, in section 24, is for resumption of part of up to 4% of a state land measuring more than 200 acres for specified undertakings – roads, railways, tramways, canals, water channels or trigometrical sections, and similar objects. It is conceded that this section is not directly relevant in this case as the land in question is only one plot and the published object of the acquisition, to wit: office block is different from those specified in section 24. But the question raised by the provisions in sections 17 and 24 is this: it was intended that leasehold interests in state lands could be freely acquired compulsorily, would there have been any need for making those specific provisions? The maxim is expressiouniusexclusioalterius: those specific provisions in sections 17 and 24 of the State Land Law exclude the intendment of a general power of compulsory acquisition of leases of state lands. See on this: Aldrich v. Attorney General (1968) 2 W.L.R. 413, at p. 42021, where the maxim was used to resolve the issue whether or not the court had power to make a declaration of legitimacy under Order 15 rule 17 (now 16) of the R.S.C. It came to the conclusion that it had not.

……………………………J……………………………

Finally, it is a common g round by counsel on both sides that the regulation titled “State Land (Leases Regulations” made the Executive Council, under powers conferred on it by section 37 of the Law, is a guide to the interpretation of the law. They however, differ, as to the effect of its application to this particular case. The learned counsel for the appellants argues that although it does not expressly authorize compulsory acquisition of leases of state lands, never-the-less Regulation 15(B)(b) shows that compulsory acquisition thereof is possible. On the other hand, learned Senior Advocate for the Respondent submitted that such an interpretation should be rejected. This is because, he contended, Regulation 15(B)(b) deals with Non-European Occupation Leases and now with Building Leases, such as the instant.

No doubt, in spite of some judicial op inions to the contrary (for which see, for example, Carter V. Butcher (1966) 1 Q.B. 526; Stephens v. Cockfield R.D. C. (1960) 2 Q.B. 373), in my judgment, such regulations can in appropriate cases, be resorted to as an aid to the interpretation of the statute itself. In this respect, I believe that Sachs, J., stated the law correctly in Neil V. Glacier Metal Co. Ltd. (1965)1 Q.B. 16 where he stated at p.27

When interpreting the provisions of a streamlined statute (i.e. one which contains only the general principles of the subject) it is, to my mind, permissible to look at those initial regulations made under it which must have been in preparation contemporaneously and the broad potential effect of which was likely to have been the subject of parliamentary discussion during the passage of the bill. (parenthesis mine for explanation)

See also the decision of the English Court of Appeal in Britt V. Buckinghamshire County Council (1964)1 Q.B. 77. in the Law under construction, it is clear that the Regulations were passed by the Executive Council under the powers conferred upon in section 37 of the Law. I can’t take notice of the fact that in 1976, the Executive Council of Bendel State had legislative power in the State. So, it was the same body that passed the law that also passed the Regulations, obviously contemporaneously. The Regulation can therefore be restored to for the ascertainment of the legislative intention in the Law which it was designed to complement. So, Musdapher, J.C.A., was right in resorting to the Regulations as an aid to the construction of the law.

But it is in the application of the Regulations that, with greatest respects, I am of the view that the learned Justice of the Court of Appeal committed a slip. Now it is, I believe, correct to say that when construing any constitution or other stature – Act, Decree, Law, Edict, Regulation or Rules due regard must be had to the scheme of the legislation. See on this: Attorney-General of Ontario V. Comptroller-General of Patents (1912) A.C. 571; also Obikoya& Sons Ltd. v. The Governor of Lagos State & Anor (1987)1 N.W. L. R. (Part 50) 385, at p.408. A close view of the Regulations shows that they deal with four different leases of State lands, namely; Agricultural Leases. Building Lease, Railway Site Lease, and Non-European Occupation Lease, each with its appropriate point headings. Regulations 1 and 2 are general to the four types of leases, Regulations 3-6 deal with Agricultural Leases; Regulations 7-9 deal with Building Lease; 10-12 with Railway Site Lease; 13-16 with Non-European Occupation Lease. It is under the last category of leases that it is provided in Regulation 15B(b) as follows:-

……………………………K……………………………

Except as provided by section 17 of the State Lands Law, the Governor shall not during the term of the lease recover possession of the land demised otherwise than by voluntary surrender of the lease, or by proceedings under the Public Lands Acquisition Law.

It was the last phrase “or by proceedings under the Public Lands Acquisition Law” that the learned Justice of the Court of Appeal relied upon and this was reiterated and relied upon by the learned Counsel for the appellant in this Court – for his conclusion that a state land demised under a lease can be acquired compulsorily by Government. I see no authority or precedent for transportation of the provisions with respect to Non-European Occupation Leases to a Building Lease such as this. It is not the law. I am therefore satisfied that neither by ordinary meaning and implication of the word ‘acquisition” nor by any rational interpretation of the provisions of the State Land Law (Leases) Regulations made under the law can it be held that, apart from the provisions of sections 17 and 24 of the State Lands Law (Cap. 156), leases of state lands or any estate or interest therein comprised can be compulsorily acquired by government. Our founding fathers and our powers – that – be have opted for the rule of law in preference for the rule of force and absolute totalitarianism. Under the system, we have elected that the otherwise omnipotent power of Government must be exercised under the authority of law. Any act of governance which is not covered under the umbrella of an enabling law is a nullity. In the instant case, the purported act of acquisition of the leasehold property of the Respondent by the Government of Bendel State which act was not authorized by any law is a complete nullity. Their wresting possession of the said property from him in a manner not provided for by law is a tortious trespass.

Was the Acquisition, if permissible, done according to the Law?

Then to the second major issue: assuming, but not agreeing, that the property in question could have been acquired compulsorily, was it acquired as provided by law? The gist of the complaint of the Respondent in this respect is the court of trial was that no personal or any due notice as prescribed by law was served on him before the appellants wrested the possession of his property from him. The case of the appellants is that they sent a registered letter to him and then published notices of the acquisition in the Observer newspaper and the Government Gazette. Nothing was served before the publications. The Respondent denied receipt of the letter or seeing any notice of the acquisition. The learned trial Judge found that the registered letter was returned unclaimed and that no certificate of title was tendered. The courts below held that there was no proper notice of the acquisition according to law.

Before us, the learned Counsel for the appellants has submitted:-

(i) that formalities of service of notice should not be allowed to defeat justice and public good;

(ii) that the decisive factor should be whether the acquisition was for a public purpose;

(iii) that publication in the Gazette was notice to the whole world;

(iv) that issue be made of service of notice only where a claimant is refused compensation on the ground that his claim is statute – barred; and

(v) that service of notice is a mere technicality and that there is now, relying on English authorities, a movement away from using such technicalities to defeat public good.

……………………………L………………………….

She cited the case of Munich v. Godstime R.D.C. (1966) 1 W.L.R. 427. at p.435 where Denning, L.J. stated that the courts now move away from the rigid adherence to technicalities as advocated and applied in East Riding Council V. Park Estate (Bridlington) Ltd. (1957) A.C. 223, where an insistence on compliance will cause a defeat of public good. The Respondent has not been prejudiced by the mere fact that notice of the intention to ac quire his property has not been personally served on him: In re Bowman (1932)2K.B.621. She therefore sought to distinguish the case of Alhaji Bello V. Diocesan Synod of Lagos &Ors. (1973)3 S.C. 103.

In sum, learned Senior Advocate for the Respondent submitted that on the facts summarized by me above, the Respondent was not served with any notice of acquisition. This made the alleged acquisition invalid, null and void.

The first question I must ask myself on this issue is this: was a proper notice of intention to acquire the Respondent’s developed property served on him. The answer to the question turns on the intention of the provisions in sections

5 and 9 of the Public Lands Acquisition Law (Cap. 136) Laws of the Bendel State, 1976 as applied to the facts of this case. They provide as follows:

5. If the appropriate authority resolved that any lands required for a public purpose of the Bendel State shall be compulsorily acquired, the Permanent Secretary shall give notice to the persons interested or claiming to be interested in such lands or to the persons entitled by this enactment to sell or convey the same or to such of them as shall after reasonable inquiry be known to him (which notice may be as in Form A in the Schedule or to the like effect).

9 (1) Every notice under sections 5 and 8 shall either be served personally on the persons to be served or left at their last usual place of abode or business, if any such place can after reasonable inquiry be found, and in case such parties shall be absent from Nigeria or if such parties or their last usual place of abode or business after reasonable inquiry cannot be found, such notice shall be left with the occupier of such lands, or if there be no such occupier shall be affixed upon some conspicuous part of such lands. …………………………………………….

9 (3) All notice served under the provisions of this law be published once at least in the Bendel State Gazette, and at least two national daily newspapers circulating in the area.

……………………………M……………………………

It appears to me that those two sections provide:

(i) that before the Respondent’s property could be acquired compulsorily for public purpose, notice of intention so to do must have been served upon him or the occupier or a person interested or upon such persons as were entitled to sell or convey the land, failing both affixed conspicuously on the property;

(ii) that the notice must be by personal service or by being left at his last known place of abode or business;

(iii) the notices served on him must be published once in the Bendel State Gazette, and at least two national daily newspapers circulating in Bendel State.

It is therefore the clear intention of the law that publication of the notice served on him in the Gazette shall after personal service of that or in the manner stated. Much as in certain other situations publication in the Gazette constitutes 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 intention to acquire. So, anything short of that amounts to non-compliance with the express provisions of the law. I therefore, find no difficulty in agreeing with the lower courts that, even if I assume that the property in dispute could have been validly acquired compulsorily by the appellants, it was, in any event, not acquired according to law.

The other submissions of learned Counsel for the appellants raise issues of fundamental nature. She has submitted that no issue should be made of the mode of service in so far as the acquisition was for public purposes because that would cause a defeat of justice and public good. In any event it is a mere technicality and there is a movement away therefrom in Britain, she submitted.

In my judgment, these submissions, particularly the last, seem to lose sight of the fundamental intention and reason for the service of the notice as well as the historical and systemic differences between the concepts of fair hearing in Nigeria and in Britain. In the first place, it is an important canon of construction that provisions in any stature which were designed to protect a section of the public must be constructed with that purpose in view. Sections 5 and 9 of the Public Lands Acquisition Law of Bendel State were designed to protect owners of land to be compulsorily acquired by Government, and not the other way round. Such owners, not the government, deserve protection. It must also be borne in mind that acquiring a person’s property compulsorily is prima facie a breach of his entrenched fundamental right to his property. (See section 31 of the 1963 Constitution and section 40 of the 1979 Constitution). As his right to his property is therefore, his fundamental right, he is entitled to make representations against such a compulsory acquisition, or claim compensation therefore, or appeal or petition against it. So he is entitled to a protection of that right to his property by exercising his right to fair hearing. It is only by exercising it that justice can be assured in the matter: this clearly implies that he can correct or controvert any ground put forward for the acquisition or raise any irregularities in the acquisition procedure. See on this De Verteuli v. Knaggs (1918) A.C. 557, at p.560; Jones V. The Commonwealth (1963)109 C.L.R. 475, at 483; Obikoya& Sons Ltd. v. Governor of Lagos State (1987)1 N.W.L.R. (Pt. 50) 385, at pp 403-404. As no one can defend the unknown, it is only by service of a true and proper notice in the manner prescribed by law that the expectations of the owner’s entrenchment constitutional rights in the matter could be guaranteed and satisfied. Our law reports are replete with cases in which some of such compulsory acquisitions for public purposes” turned out to be mere bogus smokescreens for malefaction. Reference may be made to the following cases, namely:

……………………………N……………………………

1. Chief Commissioner, Eastern Provinces V. S.N. Ononye Chief Commissioner, Eastern Provinces V. S.N. Ononye (1944)17 N.L.R.142.

2. Chief D.O. Ereka V. Military Governor of Mid-Western State of Nigeria &Ors.(1974)1 ALL N.L.R. (Pt.2) 163.

3. Akande v. Kelere(1966) Akande v. Kelere(1966) N.N.L.R. 113.

4. Kodilnye v. Anatogu (1955)1 Kodilnye v. Anatogu (1955)1 W.L.R. 231 and

5. Ajao& Anor. V. Sole Administrator for Ibadan City Council (1971)1 N.M.L.R. 74

From the result of these cases it appears to me that the submission of the learned Counsel for the appellants that personal service of notice upon the owner or occupier of land to be acquired compulsorily is a mere technicality must be rejected as a misconception. Rather, it is a rule of substance, a breach of which is capable of rendering nugatory both a person’s inviolable fundamental right to his property and his cherished fundamental right to fair hearing, each of which was guaranteed by the 1963 Constitution under which the purported acquisition was done. A situation in which an owner of property, such as the Respondent, is expected to leaf through the pages of every news-paper and the official Gazette to know when his plot of land on which he had invested several hundreds of thousands of Naira to develop has been compulsorily acquired by the same Government which had granted the least of the plot to him must be seen as alien to the letters and spirit of the system of rule of law which we have opted to operate.

It is interesting to note that before the opinion of Denning L.J. in Munich v. Godstime R.D. C. (supra) which the learned Counsel for the appellants is relying upon was expressed. several cases decided in that same jurisdiction were in accord with the view I have expressed above. Reference may be made to the following. among others:

1. Cooper v. Wandersworth Board of Works (1863) 14 C.B.N.S. 180

2. Hopkins v. Smethwick Local Board of Health (1890) 24 Q.L.B. 712, at pp.714 -715.

3. Smith v. The Queen (1878) L.R. 3 App. Cas. 614 (P.C.) Queen (1878) L.R. 3 App. Cas. 614 (P.C.)

4. East Riding Country v. Park Estate (Bridlington)Ltd. ( 1957 ) A.C. 223. Park Estate (Bridlington)Ltd. ( 1957 ) A.C. 223.

……………………………O……………………………

This brings me to the contention of the learned Counsel for the appellants that the law has now changed (in England); that the courts no longer act on technicalities; and that we should adopt that trend and pronounce the notice served on the Respondent in this case as valid in the interest of public good.

My first observation is that the opinion of Denning. L.J. , in Munich‘s case (supra) does not go as far as learned Counsel for the appellants has put it. As explained in two subsequent cases namely:

1. Stevens v. London Borough of Bromley (1972)1 All E.R. 712. at pp. 720,721. and 723; and

2. Stevens v. London Borough of Bromley (1971) 2 All L . R. 331. at pp. 338 -340,

those statements of Denning L .J. , were merely obiter. Even the other eminent Justices who participated in the case, namely Danckwerts and Salmon, L.J.J did not go so far. Moreover.the decision in question, even as far as it goes, relates to whether or not caravan dwellers were occupiers who must be served with notices. It never decided as the submission of the learned Counsel for the appellants postulates that there can be a valid compulsory acquisition of land or interest in land without proper service of a notice on the owner or occupier.

The opinion of Denning, L.J. in Munick’s Case (supra) has strikingly not, as far as I can find, been followed in any subsequent case.

Assuming, but not agreeing, that there has been a change of the law in England, that is no authority for saying that the law on the point in Nigeria must change. The two systems are different. Fair hearing and right to property in Britain are developments of the common law. They are, therefore, like any common law rule, more amenable to mutation and change by court decisions. In Nigeria, they are entrenched, secured, and guaranteed by the Constitution. Subject only to the interpretative jurisdictions of the courts, ultimately the Supreme Court, they cannot be changed unless the Constitution is amended. In other words, they cannot be blown away. as it were. by a side wind. I therefore, reject the submission that the law as to service of notice on an owner or occupier of land in Britain before its acquisition has changed; and that, assuming that there has been such a change it can affect the law in Nigeria. I believe that the law is still as stated in the case of Bello v. Diocesan Synod of Lagos &Ors. (1973)1 All N.L.R. (Pt.1) 247, at p.268; and reiterated in Peenok Investments Ltd. v. Hotel Presidential Limited (1983)4 N.C.L.R. 122.at p.165. It is that such expropriatorv statutes which encroach on a person’s proprietary rights must be construed fortissime contra preferences. that is strictly against the acquiring authority but sympathetically in favour of the citizen whose property rights are being deprived. As against the acquiring authority there must be strict adherence to formalities prescribed for the acquisition. See on this: Obikoya& Sons Ltd. v. Governor Of Lagos State (1987) 1 N.W.L.R. (Pt.50) 385. at p. 398. Lagos State Development & Property Corporation &Ors v. Foreign Finance Corp. (1987)1 N.W.L.R. (Pt.50) 413; also Bello’s Case (supra).In the instant case. I am of the view that failure to serve the notice of intention to acquire the Respondent ‘s property upon him personally as contemplated by law before the notice so served was published in the Gazette and the Observer newspaper amounts to a substantial non-compliance with the law. This renders the purported acquisition a nullity. and the appellants occupation of the land a trespass.

……………………………P……………………………

Damages

The several issues which have been raised in relation to damages could best be appreciated from the following factual background. After the Respondent’s claim as set out above, he filed and dulv amended his pleadings. The case went to court on his amended statement of claim dated the 29th day of February. 1984, which was deemed properly filed by order of court dated 26th March, 1984. Because of its relevance to the issues on damages. I shall set out the relevant part of the relief claimed therein. It runs thus:-

N1 ,500.000.00 special and general damages in Trespass

Particulars of Special Damages

Ground Floor

(a) 5050 sq. ft. or 503 sq. m. & N85.00 per sq. metre

N42,800.00 x 8 years

N342,400.00

First and Second Floors

(b) 5050 sq. ft. or 503 sq. m. at N5.30 per sq. ft.

N53,535 x 8 years

N428,240.00

Third Floor

(c) 5050 sq. ft. or 503 sq. m. at N5.30 per sq. ft.

N53,535 x 8 years

N428,240.00

2 self contained 3 bed Room Flats at N4,500 per Flat

N9,000.00 p.a. x 8years

N72,000.00

(a) + (b) + (c) N842,640.00

General damages N657,360.00

N1 ,500,000.00

……………………………Q……………………………

The plaintiff shall found and rely on various valuation and computation documents in proof of the special damages particularised above at the trial of this action.

ALTERNATIVELY:

4. Mesne profits on the property from the date of the purported acquisition to date of judgment.

In his judgment, the learned trial Judge struck out the claim for damages for trespass and, based on commercial rents offered by willing tenants in open market as established by the expert evidence, awarded to the Respondent the sum of N842,640.00 as mesne profit for eight years. This was made up as follows:

For the ground floor N42 ,800 .00 x 8

N342,400.00

For the lst Floor N26,765.00×8

N214,120.00

For the 2nd Floor N26,765.00 x 8

N214,120.00

For the 3rd Floor (2 flats)

N4,500.00 x 2 x 8

N72,000.00

Total

N842, 640.00

On appeal to the Court of Appeal, Benin Division, that Court unanimously dismissed the Appeal, inspite of the dissenting opinion of Musdapher, J.C.A., on the issue as to whether a lease of state land could be compulsorily acquired, Ikwechegh, J.C.A., in his lead judgment to which Omo Eboh, J.C.A., and, subject to the reservation already adverted to, Musdapher, J.C.A., concurred, encapsulated the reasoning of that Court on damages thus:

……………………………R……………………………

In this appeal there is evidence which the trial Judge accepted that the Respondent had by his agents entered into arrangements for the letting of his property to interested establishments, and P.W. 2 gave evidence as to amount of rents that was forthcoming, and he was not challenged on this point. The trial Judge found upon the evidence he received what the total value of letting to the Respondent would have been and he awarded this sum as mesne profits. It’s only the appellation or terminology that is wrong here. The sum awarded on principle is correct, as it represents the amount of loss that appellants had forced upon the Respondent, or the sum that it would have cost the appellant to hire and use the Respondent’s property with his license and blessing. It is now only to designate this amount awarded as “damages for trespass”, instead of terming it “mesne profits”. See, American Braided Wire Coy, vs. Thomson (1980) 4 Ch.D. 274 (C.A.). (Italics mine for emphasis)

It is against these findings and opinions that the appellants have raised issues numbered (3), (4),(5),(6) and (7) above.

Before I consider those issues, I should deal briefly with one point which was not directly raised as an issue but which has arisen in argument and has a bearing on the quantum of the award. The learned Counsel for the appellants is attacking an award of N949,000.00. He referred to page 291 lines 1-6, of the judgment. In truth the figures stated therein amount to N842,640.00 and not N949,000.00 as counsel for the appellants put forward. This is a matter of simple arithmetic. The learned Senior Advocate for the Respondent has, in his submission, rightly I hold, not supported the erroneous higher figure. The question which falls for my decision is, therefore, whether he is entitled to the award of N842,640.00

The third issue is whether the courts below were right to have awarded to the Respondent an amount higher than the amount claimed. Issue number five raises the old question of the relationship between a claim endorsed on the writ and its amendment in a statement of claim or an amendment thereof. From the claim in the amended statement claim, it cannot rightly be stated that the sum of N842,640.00 was higher than the sum of N1,500,00.00 claimed. It is true that no particulars of the mesne profits claimed were given, and none was applied for. But those particulars had been given in the claim for damages and it became clear from the unchallenged and uncontradicted evidence of P.W.2 that the same particulars were being relied upon as those already given in relation to damages for trespass. I must note that the main function of particulars is to give to the other party notice of all necessary particulars in the claim or defence so as to avoid taking that other party by surprise. It may assume one of three forms, namely: better particulars of any claim, defence or other matter pleaded; (ii) a statement of the nature of the case relied upon; (iii) both such particulars and statement. At the root of it all is the fairness of the trial in the need to enable the other side prepare his case and evidence at the trial: see Thorpe V. Holdsworth (1876) 3 Ch. D. 639; Spedding V. Fitzpatrick (1888) 38 Ch. D. 413, at p.414. If a party pleading omits or neglects to give any or such further or better particulars, which ought to have been given, the other party has the right and the duty to apply for such particulars as he deems necessary. If he fails to apply and takes no objection to such particulars as are given in evidence, he cannot later complain on appeal. In the instant case, taking the Respondent’s amended statement of claim as a whole, it cannot be denied that he fully pleaded the bases of his claim as well as the particulars upon which the claim of mesne profit was based. It is now settled beyond dispute that subject to the limitation that a plaintiff will not be permitted to set up a completely different suit or claim in his statement of claim (for which, see Cave V. Crew (1893) 62 L.J. Ch. 530; also Ekpan V. Uyo (1986) 3 N.W.L.R. (Pt.26) 63; the statement of claim supercedes the writ. See J. 0. Fadahunsi V. Shell Co. of Nigeria Ltd. (1969) N.M.L.R. 304; also Mohammed Tajira V. North Brewery Co. Ltd. (1972) N.N.L.R. 27. In Fadahunsi’s Case, which in my respectful opinion was rightly decided by Aguda, J. (as he then was), it was held that a writ for damages is not vitiated by the fact that no specific sum is claimed. So it was a claim for mesne profits. It is, therefore, not true that a higher amount was awarded or that the particulars upon which the court below based its award were not given. I must, therefore, resolve those two issues against the appellants.

I shall now consider the other split issues which the appellants have raised with respect to damages. In sum, learned Counsel on their behalf has submitted:-

……………………………S……………………………

(i) that as the learned trial Judge struck out the claim for damages and made an award for mesne profits, the Court of Appeal was wrong to have retained the award on the basis that is was mesne profits when there was no cross-appeal or even a Respondent’s notice; and

(ii) that the Court of Appeal was wrong to have invoked the powers conferred upon it under Order 3 rule 23 and section 16 of the Court of Appeal Act for confirming the award as mesne profits.

In reply, the learned Counsel for the Respondent submitted that on the true meaning of mesne profits, it is not strictly different from damages for trespass on the facts of this case. As the trial Court found the possession of the property in dispute by the appellants to be wrongful because the purported acquisition was invalid, the Court of Appeal was right to have proceeded to award damages against the appellants. The Court made it clear that it could not send the case back to the court of trial because the learned trial Judge, Moje Bare, J., had retired from the Bendel State Judicial Service and so, even if it was a case in which that Court could have sent the matter back for assessment of damages, it could not do so: it had to invoke its powers and assess the amount that was fair in the circumstances. He further submitted that the Court of Appeal had power to do what they did having due regard to the provisions of section 16 of the Court of Appeal Act of 1976 and Order 3 rule 23 of the Court of Appeal Rules. In any event the objection of the appellants to the award has come in too late.

I wish to begin my consideration of these submissions by making an important observation. Having settled the issues of the disparity between an award of N842,640.00 based on the particulars fully given by the Respondent and proved in evidence and N949,000.00 that has been attacked and settled that the award was not in excess of the claim, all that the appellants’ argument amounts to is that the Court of Appeal was wrong to have held that the amount awarded, which has shown to be correct as undisputed, should not have been called mesne profits instead of damages for trespass. The reason for this stance is that the court of trial had called it damages for trespass and the Court of Appeal mesne profits. The real quarrel is therefore, limited to what the undisputed and unchallenged award should have been called. Put it another way, the gist of the appellants’ contention is that the case should have been remitted to the High Court not for reassessment of damages which have not been shown to have been wrongly quantified, but for the award to be properly christened “mesne profits” instead of “damages for trespass”.

I must state that the whole argument has clearly lost sight of the true meaning of mesne profits and the relationship between “mesne profits” and ‘~dam ages for trespass”. Now the ordinary dictionary meaning of “trespass” is “any actionable wrong committed against the person or property of another” (See The Oxford Universal Dictionary Illustrated: Vol.2 Page 2241). To a lawyer, trespass to land is an actionable wrong to land (or realty) which is the possession of another. Every unlawful and unauthorized entry to land in the possession of another is actionable trespass for which damages should be awarded. Such damages are awarded as monetary compensation for the legal injury which a Defendant has committed to the property of the plaintiff. That compensation in case of trespass is imposed by law and is compensatory. On the other hand, mesne profit is a special type of monetary award i.e. damages which a land owner may recover for his being forced out of or deprived of possession of his land. So mesne profits is a special form of damages. Goddard, L.J., said much the same thing in Brarn well V. Bram well (1942)1 All E.R. 132, where he stated at p. 138:

A claim for mesne profits can be joined with an action for the recovery of the land, and mesne profits is another term for damages for trespass …………………………………..

……………………………T……………………………

In other words, mesne profits is a species of damages for trespass or wrongful taking or keeping occupation or possession of land otherwise rightfully in the possession of another. It is the value or compensation (call it damages) for wrongful use and occupation of another’s land which would have been otherwise rightly in the owner’s possession, and which is sometimes measured in terms of loss of rents by the landlord. It is technically a form of damages for trespass in a relationship that could have been that of landlord and a tenant, save that there is either no agreement for a tenancy or that the formerly subsisting agreement had expired. See on these: Felix 0. Osawaru v. Simeon 0. Ezeruka (1978) 6 & 7 S.C. 135, at p. 139; see also Marine & General Assurance Co. Ltd. v. Rossek & Anor. (1986)2 N.W.L.R. (Pt.25) 751. If I am right, I regard it as a hair-splitting play upon words to complain whether the amount awarded was called by the generic name “damages for trespass” or the specific name “mesne profits”. For the same reason, I believe that the appellants have put the issue too highly by saying that the error, if any, committed by the Court of Appeal was that it, without a cross-appeal or a Respondent’s notice, resurrected a claim which had been struck out by the court of trial and gave judgment on it. They only substituted the specific name for the award for the generic.

I am of the clear view that what the Court of Appeal did in the matter was only consistent with the justice of the case and in accordance with the law and rules under which it operates. The quantum of the award had not been successfully challenged: the appellants had full notice of the particulars and did not even challenge the evidence in support thereof. The appellants’ entry and possession of the Respondent’s land had been found to be wrongful, and the learned trial Judge was obliged to make a monetary award as compensation for the wrongful act. He did so and called it by the generic name damages for trespass. The Court of Appeal saw nothing wrong with the principle and quantum of the award. It only corrected the name, from the generic name of damages to the specific name mesne profits. Even if it thought that the name ‘mesne profits” should have been better given to the undisputed award by the learned Judge of the court of the trial, it noted that, because he had retired from service, he was no longer available to do so. It is noteworthy that while considering what is best in the interest of justice the Court of Appeal should do in the circumstances it would come face to face with two statutory provisions, the underlying spirit of which their Lordships were bound to reflect. The first in Order 3 rule 23 of the Court of Appeal Rules, which provides as follows:

23. The Court shall have power to give any judgment or make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs. These powers may be exercised by the Court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the Respondents or parties may not have appealed from or complained of the decision.

Clearly this enables the Court of Appeal to give any judgment and make any orders as the justice of the case may require, which the trial Judge could have made, whether or not there is an appeal by any of the parties in respect

thereof. I doubt whether the instant case requires a cross-appeal or a Respondent’s notice. However, this provision to my mind recognizes the fact that there could be a situation such as has arisen in this case, in which though a Respondent has not cross-appealed or given a Respondent’s notice, the appellate court can still, as and when the justice of the case so dictates, take the view that a slip by the lower court can be amended by the appellate court. It is significant in this respect to note that the provision in Order 3 rule 23 comes after the provisions for cross-appeal and Respondent’s notice in rules 2 and 14 of the same Order. Reference may also be made to the substantive enabling provision in section 16 of the Court of Appeal Act (No.43) of 1976,inter alia to the same effect. I am in complete agreement with my learned brother, Karibi-Whyte, J.S.C., when he stated of the above provisions in Victoria Okotie-Eboh & Ors V. Adolo Okotie-Eboh & Ors. (1986)1 S.C. 479 at p.484, thus:

It is to achieve this speedy dispensation of justice, and to do substantial justice between the parties that appellate courts have been invested with power (to do things or make orders) which the lower courts could have done without having to send the suits back to those lower courts.

……………………………U……………………………

In my opinion the course taken by the Court of Appeal in the matter of merely changing the nomenclature of the award and confirming it is compelling. Any other course such as allowing the appeal on that ground alone, or remitting it to the court of trial when the learned trial Judge had retired from service, or otherwise depriving the Respondent of the monetary compensation due to him simply because it has been called a wrong name would have been tantamount to a failure of justice. It is clear that even if the Court of Appeal could have opted for any of these alternatives, which I do not think it could have done, such a course would have resulted in gross injustice to the Respondent. Learned Counsel for the appellants will do well to remember that, in such procedural matters, this Court has moved far away from strict adherence to mere technicalities at the expense of substantial justice. It does not now stand akimbo to watch helplessly in a situation where justice will lie prostrate and trampled down simply because mere technical rules must be upheld. It will rather lean on the side of the spirit of the rules where to do so will result in real justice to the parties in litigation. I should therefore not allow the appellants to hang on a tenuous twig of technicality and thereby defeat substantial justice. The Court of Appeal was therefore right to have upheld the spirit of order 2 rule 23 of the Court of Appeal Rules, 1981, and section 16 of the Court of Appeal Act, 1976.1 shall resolve these issues against the appellants.

All the issues having been resolved against the appellants, their appeal fails and are hereby dismissed.

I assess and award costs at N500.00 against the appellants.

Judgment delivered by

Eso, J.S.C.

I have had the privilege of a preview of the judgment which has just been delivered by my learned brother Nnaemeka-Agu, J.S.C. and I agree entirely with his reasoning and conclusion.

I would like to add a short piece in regard to the so called acquisition of the Respondent’s property, especially as there was a minority judgment of Musdapher, J.C.A.

On the point, Musdapher, J.C.A. argued in that judgment that a State land could be acquired compulsorily. Section 3 of the Public Lands Acquisition Law Cap. 136 Laws of Bendel State provides in regard to compulsory acquisition:

3. (1) Where any lands are required for a public purpose of the State the appropriate authority may –

(b) compulsorily acquire such land for an estate or interest; or for a term of years absolute, as he may think proper.

(2) Where lands are compulsorily acquired in exercise of the powers conferred by paragraph (b) of subsection (1) of this section, there shall be paid such consideration or compensation as may be agreed upon or determined under the provisions of this enactment and all the succeeding provisions of this enactment shall apply in relation to any such acquisition.

(4) Where any lands are or have been acquired under the provisions of this enactment, such lands shall, to the extent of the estate or interest acquired therein, be and be deemed to have been State lands for the purposes of the enactments relating to State lands from the date of such acquisition, and may be dealt with in accordance with the provisions of those enactments notwithstanding that the purpose for which such lands were acquired has failed or any of such lands are no longer required for the purpose for which they were acquired or being used.”

……………………………V……………………………

Public purpose has been defined in that law as –

(a) for exclusive Government use or for general public use;

(b) for or in connection with sanitary improvements of any kind, including reclamations;

(c) for or in connection with the laying out of any new township or Government station or the extension or improvement of any existing township or Government station

(d) for obtaining control over land contiguous to any port;

(e) for obtaining control over land the value of which will be enhanced by the construction of any railway, road or other public work or convenience about to be undertaken or provided by the Government;

(f) for obtaining control over land required for or in connection with mining purposes; and

(g) for obtaining control over land required for or in connection with planned rural development or settlement;

(h) for or in connection with housing estates, economic, industrial, or agricultural development and for obtaining control over land required for or in connection with such purposes;

(i) for obtaining control over land required by any company or industrialist for industrial purposes.

Section 4 also provides –

(1) Whenever it appears to the appropriate authority that land in any locality is likely to be needed for any public purpose it shall be lawful for any person either generally or specially authorised by the appropriate authority in this behalf and for his servants and workmen to do all or any of the following things –

(a) to enter upon and survey and take levels of any land in such locality;

(b) to dig or bore under the subsoil;

(c) to do all other acts necessary to ascertain whether the land is adapted for such purpose;

(d) to clear, set out and mark the boundaries of the land proposed to be taken and the intended line of work (if any) proposed to be made thereon:

……………………………W……………………………

Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling-house (except with the consent of the occupier thereof) without previously giving such occupier at least seven days’ notice of his intention to do so.

(2) As soon as conveniently may be after any entry made under subsection (1) the person so authorised as aforesaid shall pay for all damage done, and in case of dispute as to the amount to be paid either such person or the person claiming compensation may refer such dispute to the commissioner of the court having jurisdiction in the place, whose decision shall be final.

Section 8 deals with Notice of intention to take and power to take possession of State land. Section 9 requires service of notice.

It would appear to me that the tenor of the provisions of the Public Lands Acquisition law is to acquire land that has not been previously acquired either compulsorily or by agreement by the Government. Land which has been acquired by the Government becomes State land and there should be no need for further acquisition. Such land could be forfeited if there has been a breach of the covenants attached thereto and could be surrendered by the Government after acquisition if there is reason therefor. In short the Public Lands Acquisition Law aims at the acquisition of “virgin land”. By “virgin land”, I mean land, the ownership or possession of which has not been disturbed earlier by the Government with the aim to acquire it.

I agree entirely with all the orders made by my learned brother Nnaemeka-Agu, J.S.C.

Judgment delivered by

Karibi-Whyte.J.S.C.

I have had the privilege of reading the judgment of my learned brother P. Nnaemeka-Agu, J.S.C., in this appeal. I agree entirely with his reasoning and the conclusion that the appeal be dismissed. It is hereby dismissed. I also agree with the consequential orders as to costs of this appeal.

Judgment delivered by

Belgore. J.S.C.:

I read in draft the judgment of Nnaemeka-Agu, J.S.C., in this appeal. I have nothing useful to add to that judgment as I entirely agree with his reasoning and conclusion. For the same reason advanced in the lead judgment, I also dismiss this appeal and make consequential orders as made therein.

Judgment delivered by

Wali. J.S.C.:

I have the privilege of reading in advance, a copy of the lead judgment of my learned brother Nnaemeka-Agu, J.S.C., and with which I agree.

……………………………X……………………………

The main issue in this case is the acquisition of a State land leased to one Mr. Owano Ogbemudia Asemota by the Governor of Bendel State for a period of 99 years for building purpose. Mr Asemota, after obtaining all necessary consent from the Bendel State Government assigned the land to Mr. Aideyan, the Respondent in this appeal. This was in 1975. Mr. Aideyan, after obtaining necessary approval for his building plan, erected a four storey building on the land. In 1976, the Bendel State government purported to acquire the buildings for a public purpose and to that effect a notice was published in the Bendel State Gazette No.219 of 29th April, 1976.

There is no doubt from the facts presented in this case that the type of lease involved, is the one described by the State Lands (Leases) Regulations [Cap. 156J L. B S., 1976, as “Building Lease”. Sections 5, 17 and 24 of the State Lands Law [Cap. 156] of the Laws of Bendel State, state circumstances in which the Governor can repossess the land leased. In the present case not only that none of the sections referred to (supra) is applicable to the purported acquisition, but also the procedure for service of the notice of acquisition as provided for in Section 9 of the Public Lands Acquisition Law [Cap. 136J Laws of Bendel State, 1976 was not complied with even if the acquisition was made under the said Public Lands Acquisition Law. I therefore agree with the decision of the trial court and the Court of Appeal that the purported acquisition is null and void and of no legal effect.

The position taken by Musdapher, J.C.A., that a state land can be compulsorily acquired for any of the purposes stated in Section 3 of the Public Lands Acquisition Law can be right if, as of now, it is proceeded upon under the Land Use Act and the Public Lands Acquisition (Miscellaneous Provisions) Act of 1976 respectively. It is therefore my view that the decision in Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982)12 S.C. 1 cannot now be a general authority, having regard to Land Use Act, 1978 and the Public Lands Acquisition (Miscellaneous Provisions) Act, 1976 that a state land granted for a building purpose and developed, can no longer be reacquired particularly where such land is required for an overriding public interest as stated in section 26 of the Land Act, 1978

The decision in Peenok’s case should be limited to the peculiar circumstances of that case and others similar to it. It is not to be used as a general authority inhibiting the compulsory acquisition of any state land by any appropriate authority for an overriding public interest, whether such land is developed or not.

For the same reasons stated in the lead judgment of my learned brother Nnaemeka-Agu, J.S.C., I too will dismiss this appeal and N500.00 costs to the Respondent against the appellants.

Counsel