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Goldmark Nigeria Limited & Ors. v. Ibafon Company Limited & Ors. (2012) – SC

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➥ CASE SUMMARY OF:
Goldmark Nigeria Limited & Ors. v. Ibafon Company Limited & Ors. (2012) – SC

by “PipAr” Branham-Paul C. Chima.

➥ COURT:
Supreme Court – SC.421/2001

➥ JUDGEMENT DELIVERED ON:
Friday, the 23rd day of March, 2012

➥ AREA(S) OF LAW
Jurisdiction;
Statute bar;
Revocation.

➥ PRINCIPLES OF LAW
⦿ MEANING AND IMPORTANCE OF JURISDICTION
Jurisdiction is defined broadly as the limits imposed on the power of a validly constituted court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues or to the persons between whom the issues are founded or to the kind of relief sought. The question of jurisdiction of a court is a radical and crucial question of competence because if a court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be, because a defect in competence is not intrinsic but extrinsic to the process of adjudication. It is trite law that jurisdiction of a court is determined by the plaintiffs’ claim as endorsed in the writ of summons and statement of claim even where a Federal Government Agency is involved. — O.O. Adekeye, JSC.

⦿ SITUATIONS WHERE ISSUE OF JURISDICTION MAY BE RAISED
Any objection to the jurisdiction of a court can be raised in any of the following situations – a. On the basis of the statement of claim, b. On the basis of evidence received, c. By motion supported by affidavit setting out facts relied on, d. On the face of writ of summons. Where appropriate as to the capacity in which the action was brought or against whom the action was brought. — O.O. Adekeye, JSC.

⦿ WHERE TWO EQUITIES ARE EQUAL, FIRST IN TIME PREVAILS
The maxim is where two equities are equal the first in time prevails. Where the 2nd respondent and the 4th appellant both traced the ownership of the land to Oluwa family the question arises as to who first acquired the property. The Deed of lease of the 2nd respondent was in January 1976 whereas the 4th appellant purchased the land in August 1976. The two lower courts rightly decided that the right and proper persons to be served with the notice of acquisition was the 2nd respondent. Where a person pays for land, obtains receipts of payment, followed by his going into possession and remaining in possession equitable interest is created for him in the land. The equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. Nsiegbe v. Mgbemena (2007) 10 NWLR (Pt.1042) pg.364. Kachalla v. Banki (2006) 8 NWLR (Pt.982) pg.364. Ogunbambi v. Abowaba (1951) 13 WACA pg. 222. — O.O. Adekeye, JSC.

⦿ NOTICE OF REVOCATION MUST BE SERVED ON OCCUPIER OF LAND
A person who is not the proven owner or occupier of land in respect of which notice of acquisition or revocation is issued has no locus standi in law to seek nullification of the acquisition. Elegushi v. Oseni (2005) 14 NWLR (Pt.945) pg.348. It would amount to sufficient service of a notice of acquisition of a piece of land or of revocation of grant in respect of the land if service of the notice is effected on the occupier of the land. Elegushi v. Oseni (2005) 14 NWLR (pt.945) pg.348. Obikoya & Sons Ltd. v. Gov. Lagos State (1987) 1 NWLR (pt.50) pg.385. — O.O. Adekeye, JSC.

⦿ REVOCATION & ACQUISITION MUST BE FOR PUBLIC PURPOSE
If the forgoing is not complied with, such acquisition shall be illegal, unlawful null and void. The law equally empowers such acquisition when it is required for public purpose. What is public purpose is not defined in the Act but have been identified by the courts in numerous cases. The acquisition must be for bonafide public purpose. It is suggested that for a particular purpose to qualify as public purpose or public interest it must not be vague and the way it benefits the public at large must be capable of proof. The test is whether or not the purpose is meant to benefit the public and not just to aid the commercial transaction of a company or a group of people for their own selfish or financial purposes. — O.O. Adekeye, JSC.

⦿ SERVICE OF NOTICE MUST BE EFFECTED ON LAND OWNER FOR REVOCATION TO BE VALID
One cannot but continue to emphasize that where a statute specifically provides for a particular way in which Government or any party can obtain title, the Government or the party can only acquire title by strict compliance with the statute, unless the statute or its wording is against the constitution of the Land. Another way of stating it is that there should be strict compliance with the issue of serving notice on land owners or interested persons in compulsory acquisition of land in accordance with the provisions of the law aforesaid. See Provost Lagos State College of Education & Ors v  Dr. Kolawole Edun & Ors (2004) 6 NWLR (Pt.870) 476 at 506; Okeowo v Attorney-General Ogun State (2010) 16 NWLR (Pt.1219) 327. — M. Peter-Odili, JSC.

Available:  The Attorney-General, Ogun State v. Alhaja Ayinke Aberuagba (1985)

➥ LEAD JUDGEMENT DELIVERED BY:
Olufunlola Oyelola Adekeye, J.S.C.

➥ APPEARANCES
⦿ FOR THE APPELLANT
O. J. Fagbemi;
Emeka Okpoko;
O.F. Ayeni;
C.V.C. Ihekweazu.

⦿ FOR THE RESPONDENT
F.R.A. Williams;
Kolapo Adabale.

➥ CASE FACT/HISTORY
The Federal Government of Nigeria now represented by the Attorney-General of the Federation, the 3rd respondent in this appeal acquired a large tract of land at Ibafon off Apapa-Oshodi Expressway, Lagos through its agencies the Ministry of Transport, Ministry of Works and Housing, the 4th and 5th respondents, in July 1976 by the Public Notice 901 of 22nd of June 1976. The 1st and 2nd respondents, Ibafon Company Limited and Kolawole Abayomi Balogun took a Writ of Summons on the 14th day of August 1990 challenging the acquisition of their land by Public Notice No. 901 of the 22nd of June 1976. The beneficiary of the acquisition was the Nigeria Ports Authority now the 3rd appellant in this appeal.

By the amended statement of claim, the 1st and 2nd respondents claimed before the Lagos State High Court as follows, inter alia, – “A declaration that alienation by the 1st defendant to the 5th, 6th, 7th, 8th and 9th defendants and 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.”

The 3rd appellant as 1st defendant, the Nigerian Ports Authority brought a motion on Notice under Order 22 rules 2 and 3 of the Civil Procedure Rules 1972 to dismiss the suit. The grounds for the application were that the 1st and 2nd respondents did not commence the action in compliance with the provisions of Sections 97 and 98 of the Ports Act 1990. The action against the Nigerian Ports Authority was statute-barred not having been instituted within twelve months of the act of acquisition. The statutory pre-action notices prescribed in Section 97 of the Ports Act were not served on the Nigerian Ports Authority prior to the institution of the action. The court took argument and a considered ruling was delivered on the 22nd of March 1991 in which the court struck out the case against the 3rd appellant. The matter went on to trial without the 3rd appellant.

Trial ended on 26th of May 1993. On the 31st of March 1994, the court entered judgment in favour of the 1st and 2nd respondents. The learned trial judge declared that the compulsory acquisition effected by the Federal Government on behalf of the Nigerian Ports Authority was null and void. Too 1st and 2nd respondents were the parties vested with title to the property on or before June 1976 when the Notice of acquisition was purportedly issued. There was no evidence that acquisition notice was served on the 1st and 2nd respondents by the Federal Government agencies; the 4th and 5th respondents. The learned trial judge went further to pronounce that the use of the land as proved before the court does not constitute use for public purpose under the Public Acquisition Act Cap 167. In view of the fact that the act of the appellants constitutes actionable trespass for which damages are payable, trial court then ordered an account of how much had been collected on the land which should be paid over to the 1st and 2nd respondents in proportion of their holdings.

Though the learned trial judge found that the 1st and 2nd respondents had proved their case and were entitled to an order of perpetual injunction restraining further trespass onto the “property but declined to make an order against the appellants and 3rd and 4th respondents so as not to compel the government to legislate on its behalf more so as the lands have been leased out to other people by the appellants. The 1st and 2nd respondents being dissatisfied with that part of the judgment by which the court declined to make an order of perpetual injunction against the appellants, filed an appeal to the Court of Appeal. The 7th defendant now 1st appellant filed a cross-appeal on the ground that the High court was in error in entering judgment for the plaintiff/1st – 2nd respondents when the claim against the 1st appellant and its predecessor-in-title had been dismissed on the ground that the action was incompetent.

The Court of Appeal delivered its judgment on the 30th of March 2000 whereby the appeal of the 1st and 2nd respondents was allowed and the cross-appeals of the 1st and 2nd appellants dismissed. The Court of Appeal held that a dismissal of the action against the 3rd appellant was not a bar to the continuation of the case against the other appellants who derived their title from the 3rd appellant.

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]

I. Whether the learned justices of the Court of Appeal were right in holding that the Lagos State High Court had jurisdiction to adjudicate over the matter after August 26th 1993? 2

Available:  Rickett v. Bank Of West Africa (1960)

RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE LATTER PROMULGATED FEDERAL HIGH COURT AMENDMENT ACT NO. 60 of 1991 CANNOT OUST THE HIGH COURT JURISDICTION
“Section 6(1)(e) of the Interpretation Act Cap 123 Laws of the Federation of Nigeria 2004 makes provision for the effect of repealed enactments which reads: ‘e. Affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the enactment had not been repealed. It is clear from the foregoing provision that legal proceedings may be continued as if the enactment has not been repealed. This is strongly in support of the stand of the 1st and 2nd respondents in this case.’”

“In short, a right in existence at the time a new law is passed transferring jurisdiction of one court to another will not be lost. Decree NO. 107 of 1993 has ‘no retrospective effect as it was a constitutional amendment which was not declared to take effect retrospectively; neither did it contain any abatement provision. It would not affect pending legal proceedings so as to deprive the State High Court jurisdiction to conclude such proceedings. This court (Orthopeadic Hospitals Management Board v. Garba & Ors. (2002) 14 NWLR (pt.788) pg.538 (2002) 7 SC (pt. 11) pg.138) went further to clarify the issue of jurisdiction that the law in force or existing at the time the cause of action arose governs the determination of the suit while the law in force at the time of trial based on the cause of action determines the court vested with  jurisdiction to try the case.”
.
.
II. Whether the action against the 1st appellant was maintainable in view of the dismissal of the claim against the 1st respondent/3rd appellant (i.e. NPA) for reasons of the claim being statute-barred?

RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE BENEFIT OF THE STATUTE BARREDNESS APPLIED ONLY TO THE 3RD APPELLANT
“On the 22nd of March 1991 the trial court made an order dismissing the 3rd appellant the Nigerian ports Authority from the suit. The court granted that order on the provisions of Section 97 (1) and (2) of the ports Act Cap 155 Laws of the Federation of Nigeria and Lagos 1958. That provision of the Ports Act made it mandatory that an action must be commenced against it within twelve months limitation period and that pre-action notice must be served on the Ports Authority. That provision of the Act is exclusively for the benefit of the 3rd appellant. The Act did not apply to the 1st, 2nd and 4th appellants as it cannot confer any benefits on them.”

B. THAT THE ACTION AGAINST THE 3RD APPELLANT IS DIFFERENT FROM THAT AGAINST 1ST, 2ND, & 4TH APPELLANTS
“As observed by the 3rd – 5th respondents the cause of action against these appellants and their predecessor-in-title are quite different. While the cause of action against the 3rd appellant was for alienating government acquired land to private companies for their private enterprises, the cause of action against the 1st, 2nd – 4th appellants was for trespass on improperly acquired land forming the subject matter of the suit. It follows without any shadow of doubt that the dismissal of the 1st and 2nd respondents action against the Nigerian Ports Authority cannot avail the other appellants as the action which took them to court are entirely distinct from that of NPA. ”
.
.
III. Whether the learned justices of the Court of Appeal were right in upholding the declaration granted in favour of the plaintiffs/1st-2nd respondents in the face of the incontrovertible evidence that the 1st respondent’s company was not inexistence i.e. had not been incorporated at the time the land was purportedly conveyed to it by Oluwa chieftaincy family?

RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE 1ST RESPONDENT RATIFIED THE EARLIER CONTRACT BY ENTERING A FRESH CONTRACT, HENCE VALID
“The position is clear that when the 2nd respondent purchased the two plots of land from Oluwa family, he contemplated keeping the smaller plot for his own use and the larger portion for his company – the Ibafon Hotels Ltd – which now transformed as Ibafon Company Limited. The 1st respondent was not yet registered as a corporate entity in January 1976 when the 2nd respondent purchased the lands. On the payment of the appropriate amount of money the Oluwa family the original owners of the land released the plot to him after issuing him the requisite receipts. The 2nd respondent took physical possession of the plots by erecting fence on the land. He collected two receipts Exhibits A and B. In 1978 the 2nd respondent entered into a fresh contract, a Deed of lease, Exhibit D so as to enable the 1st respondent to take benefits of the land. The 1st respondent was then registered as Ibafon Company Limited. The recital of the deed of lease indicates that the date of commencement was 6.1.76. The certificate of incorporation of 1st respondent was tendered as Exhibit K. the recital of Exhibit D reads- “And whereas the lessee hath earlier negotiated for and the lessor had duly earlier leased out the said hereditament hereinafter intended to be claimed to the lessee subject to the undermentioned terms and conditions but at that time no proper deed of lease was ready for execution both by parties.” The foregoing ratified the contract of the 1st respondent with entering into a fresh contract by the Deed of lease Exhibit D. The germane question is whether by the lease Exhibit D can now adopt or ratify the incorporation contract. Section 72 of the Company and Allied Matters Act which condones this view did not come into operation until 1990. There was no known law prior to 1990 – to cover the period the 1st respondent entered into the contract in 1976. The trial court confirmed that with the ratification in Exhibit D – the 1st respondent had established a proprietary interest in the parcel of land.”
.
.
IV. Whether the learned justices of the Court of Appeal were right in granting an order of perpetual injunction against the appellants in substitution for the direction by the learned trial judge that evidence should be adduced on the said issue of compensation?

Available:  Ngozi Anyafulu v. Vincent Agazie (2005)

RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE GRANT OF PERPETUAL INJUNCTION WAS PROPER
“The trial court found in favour of the 1st and 2nd respondents and declared the acquisition of their properties by Public Notice 901 of 1978 illegal, null and void for reasons of fundamental breach of the provisions of Public Acquisition Act Cap 167 of the law of the Federation of Nigeria and Lagos 1958. These are for failure to serve the requisite notice on the occupiers of the property and to acquire for public purpose. The appellants were declared trespassers on the properties and liable to render accounts to the 1st and 2nd respondents of the profits made on the use of the properties. The learned trial judge ought to have granted perpetual injunction restraining the appellants their servants and privies from further trespassing upon, alienating or doing anything whatsoever on the parcel of land subject matter of the suit. It was wrong of the trial court not to make the order in the circumstance and to order the claimants to lead evidence on their claim for ‘compensation after declaring the compensation illegal, null and void. The order contradicted his findings in the suit.”
.
.
V. Whether the lower court was correct to have allowed the 1st and 2nd respondents appeal on the grounds of non service of notice of acquisition contrary to the case put forward by them at the trial court which was based on the allegation of use of land for a purpose other than public purpose and whether same did not amount to formulating a case for a party different from that put forward by it?

RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE GOVERNMENT MUST COMPLY WITH PROVISIONS AS TO REVOCATION
“This court had always emphasized that government has the right to compulsorily acquire property on payment of compensation. There is no argument about such Constitutional power. There are statutes which provide for the procedure of acquiring property by the government. Government is expected to comply with those statutes which it has enacted. Where government disobeys its own statutes by not complying with this the laid down procedure for acquisition of property it is the duty of the courts to intervene between the government and the private citizen. The trial court found in favour of the 1st and 2nd respondents. The Court of Appeal held that based on the testimony of the parties there was nothing to controvert the findings of the trial judge that notice of acquisition was not served. Both courts declared the public acquisition of the properties of the 1st and 2nd respondents invalid, null and void.”
.
.
.
✓ DECISION:
“In sum the appeals lacks merit and I accordingly dismiss them. The costs of the appeal is assessed at N50,000.00 in favour of the 1st – 2nd respondent.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)
Section 6(1) of the Interpretation Act Cap 123 Laws of the Federation of Nigeria 2004;

➥ REFERENCED (CASE)
⦿ WHEN ACTION ALREADY FILED, NEW STATUTE ENACTED REMOVING JURISDICTION FROM COURT WILL NOT AFFECT
In the case of Obiuweubi v. CBN (2011) 7 NWLR (pt.1247) pg. 465. this court held that – “For the State High Court to have jurisdiction under Decree 107 of 1993 the cause of action must arise before the 17th of November 1993 and the trial must also be in progress before the said date. That is to say all part-heard cases in the State High Court before the 17th November 1993 can continue after 17th November 1993 in the State High Court because Decree NO.107 of 1993 does not have retrospective operation and in view of Section 6 (1) “of the Interpretation Act Cap 192 Laws of the Federation of Nigeria 1990.”

➥ REFERENCED (OTHERS)

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