GBADAMASI & ORS v. JULIUS BERGER (NIG) LTD & ANOR (2021)

GBADAMASI & ORS v. JULIUS BERGER (NIG) LTD & ANOR

(2021)LCN/15012(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, February 09, 2021

CA/L/183/15

RATIO

LAND LAW: RELEVANT LAWS REGULATING COMPULSORY ACQUISITION OF LAND FOR PUBLIC PURPOSES IN LAGOS STATE AS AT 1972

The Appellants have correctly stated and relied on the relevant laws regulating compulsory acquisition of land for public purposes in Lagos State as at 1972, that is the Public Lands Acquisition Law, CAP. 113 Laws of Lagos State, 1973, as amended by the Public Lands Acquisition Edict, 1976. It was pursuant to this law that the Respondents claimed the notices of compulsory acquisition were published in the Lagos State Government official gazettes and served on the Appellants. The said law, particularly, the provisions of Sections 5, 8, 9 and 25 thereof, have been subject of interpretation by this Court and the Apex Court. The judicial consensus is that while the Government is empowered to compulsorily acquire lands for public purposes, the requirement of the said provisions regarding issuance of notice of compulsory acquisition to the owners of the land, publication of the said acquisition in the Government official gazettes are the procedure which must be strictly adhered to for the acquisition to be legally valid. Failure to give the required notice of the compulsory acquisition of lands to the owners will invalidate any such compulsory acquisition.
In the case of CITY PROPERTY LTD VS. A. G. LAGOS STATE (1976) LPELR-869, the Apex Court interpreted and explained the purpose of the provisions of Section 5 of the said Cap. 113 was to make the interested parties/owners of the lands be aware of the resolution of the Government to compulsorily acquire their land. It needs to added here that, there is no question of whether or not the owners/interested parties agree to the acquisition. Once the acquisition of the land is for public purpose as defined by Section 2 of the Law, the Lagos State Government’s right of acquisition is unfettered. The second notice to be issued to the owners or interested parties, as provided by Section 8 was for them to vacate the land within six weeks after which the acquisition would be published in the government gazettes. The land does not legally or validly vest in the government unless the required notice is properly served on the owners of the land. This is trite. However, it needs to be emphasized that service of notice of compulsory acquisition of land on the owners/interested party as prescribed by law is a matter of fact that requires to be proved by sufficient and credible evidence and the circumstances of the case under consideration. See also GOLDMARK (NIG.) LTD & ORS. VS. IBAFON CO. LTD & ORS. (supra), BELLO VS. DIOCESAN SYNOD OF LAGOS & ORS. (1973) LPELR-768 (SC), PROVOST OF LAGOS COLLEGE OF EDUCATION VS. EDUN (supra), AGBON & ANOR. VS. LEKKI WORLDWIDE INVESTMENT CO. LTD (2019) LPELR-47315 (CA), and ADEGUNLE VS. GOV. OF LAGOS STATE & ORS. (2019) LPELR-48013 (CA). PER BALKISU BELLO ALIYU, J.C.A.

EVIDENCE: ON WHOM LIES THE BURDEN OF PROOF WHEN AN ALLEGATION IS MADE

But the law is trite that the burden of proof always rests on the party who asserts the affirmative of the issue in controversy not on the party that asserts the negative. This principle of law is captured by the Latin maxims ei qui affirmat non ei qui negat incumbit probation or incumbit probation qui dicit, non qui negat. The burden of proof lies on the one who alleges and not on him who denies. See OMISORE & ANOR. VS. AREGBESOLA & ORS. (2015) LPELR-24803 (SC), ADELEKE VS. IYANDA (2001) 13 NWLR (PT. 729) 1 (SC) and ARUM V. NWOBODO (2004) 9 NWLR (PT. 878) 411 (CA). PER BALKISU BELLO ALIYU, J.C.A.
EVIDENCE: BURDEN OF PROOF IN CIVIL CASES

However, being a civil case, the burden is not static, but swings from one party to other until the end of proceedings when the issue in contention must be decided on the balance of probabilities. This is the purport of Section 136 of the Evidence Act 2011. See DURU VS. NWOSU (1989) 4 NWLR (PT. 113) 24 AT 35 (SC). PER BALKISU BELLO ALIYU, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

MR. TAJUDEEN ABDULLAHI GBADAMASI (THE BAALE OF OGOYO VILLAGE) 2. ALHAJI YUSUF WAHEED 3. MR. FATAI ABIONA (FOR THEMSELVES AND ON BEHALF OF OGOYO VILLAGE) APPELANT(S)

And

1. JULIUS BERGER (NIG) LTD 2. ATTORNEY-GENERAL OF LAGOS STATE RESPONDENT(S)

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Lagos State High Court, (lower Court) said to be delivered (there is no date on the judgment) on the 24th June, 2013 (as per amended the notice of appeal) by Hon. Justice O.A. Dabiri in respect of Suit NO: LD/259/92. The Appellants were the claimants in the suit, which they initially filed against the 1st Respondent only. However, upon the application of the 1st Respondent, the 2nd Respondent was joined as the 2nd Defendant to the suit. The facts that gave rise to the suit are contained in the Appellants’ Fifth amended statement of claim filed on the 5th January, 2011, copied in pages 3 to 7 of the record of appeal. They filed the suit for themselves and on behalf of the people of Ogoyo Village located in Victoria Island, Eti Osa Local Government Area of Lagos State, their ancestral home. Their case before the lower Court was summarily contained in paragraph 16 of their statement of claim wherein they averred:
The Plaintiffs further aver that sometimes between February and March 1992, the 1st Defendant without any permission, consent, prior

knowledge, acquiescence or just cause entered upon the Plaintiffs’ land and bull-dozed or destroyed several crops, and/or farm products, buildings and other valuables of the Plaintiffs’ community and thereby caused damage to the Plaintiffs.

Upon that fact and others, they claimed the following reliefs against the Respondents:
1. A DECLARATION that the Claimants are entitled to statutory and customary right of occupancy in respect of the Ogoyo Communal Land situate, lying and being at Ogoyo Village, Eti-Osa Local Government Area, Lagos State.
2. A DECLARATION that the Ogoyo Communal Land was never acquired by the Lagos State Government and that any purported acquisition of Ogoyo Village/Community land by the 1st and 2nd Defendants is null, void and of no effect whatsoever.
3. AN INJUNCTION restraining the Defendants by themselves, their servants, agents, privies, officers or otherwise howsoever from further trespassing on the Ogoyo Communal/Village land, and from alienating or assigning same and from interfering with the Claimants’ Community peaceful possession, occupation and use of same.

N977,000.00 being special damages for the act of nuisance and trespass committed by the Defendants against the Plaintiffs’ community.
5. N40,000,000.00 being general damages for the nuisance and trespass committed by the Defendants on the Claimants’ land.

During the trial at the lower Court, the Appellants called four witnesses and tendered documents namely; Survey Plan of the community land in dispute, judgment of the trial Court in Suit NO: M/132/1998-BAALE JUBRILA GBADAMOSI (BAALE OF OGOYO) & ORS. VS. MILITARY ADMINISTRATOR, LAGOS STATE & ORS. and the Lagos State Ministry of Environment and Physical Planning Demolition Notice dated 20th January, 2004 to support their claims.

The Respondents denied the claims of the Appellant and asserted that the village of Ogoyo together with the neighboring villages were compulsorily acquired by the Lagos State Government in line with its developmental program for the purpose of construction of Lagos-Epe Express way and Housing Scheme of the Government Housing Policy. In that regard, notices for the acquisition of the land were duly served on the communities affected and duly published in the

State Official Gazettes. That, upon the acquisition of all the affected villages including the Appellants’ Ogoyo Village, structure enumeration was conducted by the New Town Development Authority to ascertain the value of the structures on the acquired lands in order to determine the compensation to be paid and the land area to serve as re-settlement scheme to the inhabitants of the affected areas.

Subsequently, compensation was paid to the Ogoyo Community and they were resettled at Ikota Re-Settlement Scheme. But upon the persistent appeal of the Ogoya villagers to the 2nd Respondent to be re-settled elsewhere, they were re-settled in another parcel of land and issued with the certificate of occupancy for same through their Baale. As such, the Ogoya village has moved to the re-settlement and no longer on the land that is the subject-matter of this suit, which now forms part of the 2nd Respondent’s Lekki Peninsular Housing Scheme. Consequently, the 2nd Respondent employed the services of the 1st Respondent to carry out the sand filling of the land at a cost of over N1billion. The evacuations of the Ogoyo village and the sand filling of the land have long been completed peacefully.

At the conclusion of the trial, the trial Court found and held that the 2nd Respondent’s acquisition of the Ogoyo land was proper and valid and has extinguished the customary right of occupancy of the Appellants. The lower Court also found that compensation has been paid and the Appellants re-settled, and they failed to prove their entitlement to special and/or general damages they claimed. Their case was dismissed.

Aggrieved with the dismissal of their case, the Appellant filed the extant amended notice of appeal on the 29th June, 2020 relying on seven grounds of appeal to pray that the appeal be allowed and the judgment of the lower Court set aside. The Appellant’s brief of argument was filed on the 15th March, 2016 and deemed properly filed on the 17th November, 2020 in view of the amendment of the Notice of Appeal. In the Appellant’s brief, settled by Oluwole Kehinde Esq. the following five issues were identified for the determination of this appeal:
1. Whether the trial Court was right when it held that the 2nd Respondent’s witness’ statement on oath was regular and

valid. (Ground seven)
2. Whether the trial Court was right in holding that the Appellant’s land was compulsorily acquired. (Ground one)
3. Whether, having regard to admissible evidence, the trial Court was right in holding that compensation was duly paid to the Appellants in respect of the land in dispute. (Grounds two and three).
4. Whether the trial Court was right for not awarding damages in favour of the Appellants and for not assessing damages at all. (Grounds four and five).
5. Whether the trial Court properly evaluated the evidence and attached appropriate weight thereto. (Ground six).

In opposing the appeal, the 1st Respondent filed its brief of argument, settled by Abumere A. Osara Esq., on the 22nd December, 2016, deemed properly filed on the 17th November, 2020. In paragraphs 4.01 to 4.10, pages 4 to 7 of the brief, the 1st Respondent raised and argued a preliminary objection against the Appellants’ issues 1 and 5, said to have been couched from grounds 6 and 7 of appeal. The ground of the objection is that the said issues 1 and 5 are not related and did not arise from grounds 6 and 7 of appeal, as such the said

issues are irrelevant and should be struck out. He submitted that it is trite law that every issue must be based on a ground of appeal otherwise it will become irrelevant to the appeal. He relied on the cases of ABDULLAHI VS. BANI (2014) LPELR-22833 (CA), IBATOR VS. BARAKURO (2007) 9 NWLR (PT. 1040) 475 AND BHOJSONS PLC V. DAVID-KALIO (2006) 5 NWLR (PT. 973) 330 for support.

He further submitted that the Appellants formulated five issues for determination but abandoned them all and proceeded to raise other sub-issues, fresh captions, sub-titles and sub-headings under each issue that are totally unrelated to the issues that was formulated. He drew the attention of the Court to issue one, under which the Appellants raised a sub-issue titled “Absence of Evidence by the 2nd Respondent” and proceeded to argue this sub-issue and abandoned issue one totally. Further that the Appellants jettisoned their issue two and proceeded to raise new heading/sub-issues from paragraphs 5.1 to 5. 18 of the briefs, namely; “compulsory acquisition”, “Identity of land”, “presumption of withholding evidence”; “failure to link

evidence with Pleadings”; “requirements for valid acquisition”; “vesting order” and “Consequences of Non-Compliance”. The Appellants issue 3 was also argued under other different issues and headings so also was issue 4 argued under two headings. It was submitted that the procedure adopted by the Appellants in arguing the appeal under fresh headings and titles or sub-issues is not only strange and alien to the tenets of brief writing but runs against the provisions of Order 18 Rule 3 of this Courts Rules 2016. He placed reliance of the case of OMOZEGHIAN VS. ADJARHO (2006) 4 NWLR (PT. 969) 33, where this Court held that it is unacceptable for an issue to raise in it several other issues. He further argued that it is settled law that appeal is argued on the issues formulated and it is on the basis of the issue that parties found their contention; and that argument should be based on the issues and not on other sub-issues and sub-headings, failing which the brief is liable to be struck out and the appeal dismissed for non-compliance with the Rules of Court. It was the counsel submission that failure of the Appellants to

argue the issues raised in their brief renders the brief irredeemably bad and liable to be struck out and the appeal to be dismissed, since it is not the duty of this Court to try salvage a defective brief, as was held in the case of IDIKA VS. UZOUKWU (2008) 9 NWLR (PT. 1091) 34.

The 1st Respondent further objected to the Appellants’ ground 3 and issue 3 distilled therefrom on the ground that the Appellants are out of time to appeal against the interlocutory ruling delivered by the trial Court on the 27th March, 2012 upon which it raised the said ground. Learned counsel submitted that there was no appeal against the interlocutory ruling of the lower Court in which the objection to the admissibility of exhibits JB16, JB18 and JB19 was overruled and the documents admitted. He submitted that, although, a ground of appeal in respect of interlocutory ruling could be raised in the appeal against the final judgment, such appeal however should be a competent and valid appeal filed with the leave of Court within the 14 days stipulated by Section 25 of the Court of Appeal Act. He relied on the case of TIAMIYA VS. OLAOGUN (2008) 17 NWLR (PT. 1115) 66 and

KOTUN VS. OLASEWERE (2010) 1 NWLR (PT. 1175) 411 in urging the Court to hold that ground 3 of this appeal and issue 3 formulated therefrom are incompetent and invalid having not been raised within time and without leave of this Court.

Similarly, the 2nd Respondent also opposed the appeal and filed its brief of argument on the 1st June, 2017, but consequentially deemed properly filed and served on the 17th November, 2020. Learned State Counsel Akin Idris Esq. (Assistant Director, Ministry of Justice Lagos State) settled the brief, wherein he raised a preliminary objection for and on behalf of the 2nd Respondent to the appeal and enjoined the Court to strike out Ground 3 of the Notice of appeal and discountenance Appellants’ issue 3 couched from it, on the ground that the said ground 3 and issue 3 emanated from an interlocutory ruling delivered by the lower Court on the 27th March, 2012, in respect of the admissibility of Exhibits JB16, JB18 and JB19.

The 2nd Respondent’s argument in support of the preliminary objection is contained in paragraphs 4.0 to 4.10, pages 5 to 7 of the 2nd Respondent’s brief of argument same as the argument of the 1st Respondent against ground 3 and issue 3 of the Appellants’ grounds of appeal, already stated supra.

In response to the objections of the Respondents, the Appellants filed a reply brief in which he replied to the objections raised by the Respondents supra. In Response to the argument against the Appellants’ issues 1 and 5, learned counsel conceded that there are no existing grounds six and seven in the extant Notice of Appeal (at the time of filing the said brief) to which they related. The said issues were formulated in anticipation of amendment of the said Notice of Appeal and the argument canvassed under those issues 1 and 5 is covered by Appellants’ issue 3 in the extant Notice of Appeal, as well as in 1st and 2nd Respondents’ issues one.

In response to the ground of objection against the fragmentation of the Appellants’ issues under different sub-headings, the Appellants urged us to disregard that ground of objection because all the argument under the sub-headings was within the ambit of issues two and three formulated for determination. He submitted that it is an acceptable practice in brief writing to

sub-divide the points of argument under the respective issues. Further argued that, there is a clear link between all the sub-heads with the main issues under which they were argued, which were also derived from the grounds of appeal. He relied on the case of KLM ROYAL DUTCH AIRLINES VS. ALOMA (2018) 1 NWLR (PT. 1601) 473 AT 499, to submit that the mere fact the Appellants proffer argument on sub-issues in their brief would not amount to abandoning the issues, except if the so-called sub-issues are completely unrelated to the issues formulated and the grounds of appeal. Further argued that, assuming but not conceding that the approach adopted in the Appellants’ brief was inelegant, the position of the law is that faulty or inelegant brief per se, is not a ground for rejecting it. He relied on the cases of ETAJATA VS. OLOGBO (2007) 16 NWLR PT. 1061) 554 and TUKUR VS. GOV. OF TARABA STATE (1997) 6 NWLR (PT. 510) 549 for support.

With regards to the objection against the Appellants’ ground three of appeal, against the ruling of the lower Court on the admission in evidence of exhibits during the trial, the Appellants’ learned counsel submitted

that a ground of appeal which deals with interlocutory ruling on admissibility of documents does not require leave of Court in an appeal against the final judgment. This is because a decision made by a trial Court on wrongful admission of evidence is part of the main trial and not an interlocutory decision and a party appealing against the final judgment can allege in a ground of appeal that inadmissible evidence had been admitted during trial or admissible evidence had been rejected. As such, the failure of the Appellants to seek and obtain leave to appeal on the admissibility of exhibits JB16, JB18 and JB19 in raising ground 3 is not fatal, and the said ground is competent, on the authority of the cases of ONWE VS. OKE (2001) 3 NWLR (PT. 700) 406 at 418 and OKOBIA V. AJANYA (1998) 6 NWLR (PT. 554) 348 in support and he urged us to dismiss the objections of the Respondents.

DETERMINATION OF THE PRELIMINARY OBJECTIONS
With regards to the objection of the 1st Respondent against Appellants’ issues 1 and 5, which it argued were not related to any ground of appeal; the record of this Court on this appeal shows that the Appellants filed a motion

on notice us on the 13th February, 2020, by which they sought four (4) orders namely; (1) an order substituting the then Appellant Baale Jubrila Gbadamosi who has died with the present Appellants, (2) an order granting leave to amend the notice of appeal in the manner shown on the attached proposed amended notice of appeal, (3) an order deeming the amended notice of appeal already filed and served as duty filed and served and (4) an order “deeming the argument already contained in the Appellant’s brief of argument on the amended grounds of appeal as proper and valid.”

The grounds of that application clearly stated on the motion the purpose for the amendment was simply to substitute the deceased Appellant with the present Appellants and no more. There was no mention of need/leave to raise additional grounds of appeal. Indeed, the proposed amended notice of appeal attached to the application as exhibit ‘B’ has no grounds 6 and 7 but contained only five grounds of appeal as in the original notice of appeal in pages 227 to 230 of the record of appeal, with only the substituted Appellants being the amendment sought.

On the 16th June, 2020, the application was called for hearing and learned Appellants’ counsel, Mr. Oluwole Kehinde withdrew prayer 4. In this Court’s ruling on the motion, only prayers 1 and 2 were granted and prayers 3 and 4 were struck out. We ordered the Appellants to file the amended notice of appeal substituting the Appellants with the deceased Appellant only in terms of their prayers 1 and 2.

Consequently, this Court never granted the Appellants leave to raise and argue additional grounds of appeal, because there was no such prayer on their motion papers. All that this Court allowed the Appellants to do vide that motion was to file an amended notice of appeal reflecting the substitution of the deceased Appellant with the present Appellants and nothing more.
However, the Appellants in apparent disregard of that ruling of 16th June, 2020, proceeded to file an amended notice of appeal on the 29th June, 2020 and surreptitiously raised two additional grounds 6 and 7 of appeal without leave of this Court to do so, and in clear contravention of Order 7 Rule 4 of the Court of Appeal Rules 2016 which provides that:

The Appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the Appellant to amend the grounds of appeal upon payment of fees prescribed for making such amendment and upon such terms as the Court may deem just.
In the circumstance, the objection of the 1st Respondent against the smuggled grounds 6 and 7 in the amended notice of appeal without leave has merit and it is sustained. The said grounds 6 and 7 together with issues 1 and 5 raised therefrom and the argument canvassed on them are hereby struck out for being incompetent.

I now turn to the Respondents’ objection against ground 3 of appeal, and issue 3 couched therefrom. In the said ground 3 of the Notice of Appeal, the Appellants asserted that:
The trial Court erred in law when it admitted pieces of inadmissible evidence namely; Exhibits JB16, 18 and 19 as admissible evidence on the ground of doing substantial justice, when the said exhibits were in law not admissible at all.

The ground of objection against the supra ground 3 was that it emanated from the ruling of the trial Court overruling the objection to the admissibility of exhibits tendered by the Respondents. However, the issue of the admissibility and relevance of the said documents was again raised by the Appellants in their final address before the trial Court and responded to by the Respondents in their respective final addresses as well. Thus, putting the admissibility and relevancy of the exhibits JB16, JB18 and JB19 in issue before the trial Court. The trial Court therefore correctly considered the issue in the final judgment and made a pronouncement on it in pages 220 to 221 of the record of appeal thus:
… the Court is not unmindful that the learned claimant’s counsel contended that these exhibits are supposed to be CTC since they came from the Government archive, and should be discountenance (sic), this Court want to state that the documents or exhibits (JB18 and JB19) are piece (sic) of evidence that would allow the Court to do justice in the matter between the parties irrespective of the technical objection from the claimant counsel. It is the view of this Court that these documents is (sic) not only admissible but relevant, it is a document that will assist the Court in navigating the dark alley in this suit.

Ground 3 of appeal is against the above decision contained in the final judgment of the trial Court rather than the ruling admitting the exhibits in issue during the proceedings. The Appellants are therefore entitled to raise the said ground 3 and issue three distilled from it for the determination of this Court. Leave of this Court is not required for the ground to be raised having arisen from the final judgment. That leg of objection has no merit and it is hereby overruled and dismissed.

On the objection against arguing issues for determination under sub-issues, I examined the issues and the argument canvassed in the sub-headings under them. I found that the argument therein, though made under sub-headings, but it relates to the main issues raised and, in that regard, they are competent. That leg of objection is also unmeritorious and it is hereby dismissed. In the final analysis, the preliminary objection succeeds in part, that is only as to grounds 6 and 7 of appeal and the issues 1 and 5 raised therefrom without leave of Court. The said grounds 6 and 7 and issues 1 and 5 are struck out.

MAIN APPEAL
The 1st Respondent identified the following issues for the determination of the appeal as follows:
1. Whether the trial Court was right to hold that the land was compulsorily acquired and compensation paid by the Lagos State Government. (Grounds 1 and 2).
2. Whether the trial Court was right to admit exhibits JB16, 18 and 19 in evidence. (Ground 3)
3. Whether the claimants proved special and general damages and nuisance in the manner required by law. (Grounds 4 and 5).

On its part, the 2nd Respondent at page 5 of its brief also raised almost the exact same three issues for determination as raised by the 1st Respondent thus:
1. Whether the trial Court was right to hold that the land was compulsorily acquired and compensation paid by the Lagos State Government over the land in dispute. (Grounds 1 and 2).
2. Whether the trial Court was right to admit exhibits JB16, JB18 and JB19 in evidence (Ground 3).
3. Whether the Appellants at the trial Court proved their entitlement for the award of special and general damages for nuisance and trespass against the Respondents. (Grounds 4 and 5).

The Appellants deemed it necessary to file reply brief, which was also deemed properly filed on the 11th November, 2020.

It is observed that the Appellants issues 2, 3 and 4 are the same with the Respondents’ proposed three issues, only couched in different language style. I therefore adopt the Appellants issues 2, 3 and 4 re-numbered issues 1, 2 and 3 respectively for the determination of this appeal. For clarity, this appeal will be determined on the following re-numbered three issues:
1. Whether the trial Court was right in holding that the Appellants’ land was compulsorily acquired. (Ground one of appeal.)
2. Whether having regard to the admissible evidence, the trial Court was right in holding that compensation was duly paid to the Appellants in respect of the land in dispute. (Grounds two and three of appeal.)
3. Whether the trial Court was right for not awarding damages in favour of the Appellants and for not assessing damages at all. (Grounds four and five of appeal).

Issues one and two supra are interrelated and will be determined together for brevity and to avoid unnecessary repetition. The parties’ submissions in respect of the issues are considered below.

APPELLANTS’ SUBMISSIONS
The Appellants argued their issue 2 same as Respondents’ issue 1 from paragraph 5.0 to 5.29, pages 4 to 8 of their brief of argument. The learned counsel argued that the defence of the Respondents at the trial Court was that the Appellants’ Ogoyo village was compulsorily acquired by the Lagos State Government through the notices of acquisition issued in 1972 and 1976, admitted in evidence as exhibits JB14 and JB15 respectively. These notices were published in the Lagos State Official Gazettes No. 20, Volume 5 of 1972 and No. 31 Volume 9 of 1976 respectively, and issued pursuant to the Public Lands Acquisition Law, CAP. 113 Laws of Lagos State, 1973, as amended by the Public Lands Acquisition Edict, 1976 applicable then before the Land Use Act was promulgated. The Appellants’ contention is that none of the Notices of acquisition specifically stated that the Appellants’ Ogoyo land was acquired. Their learned counsel quoted from the said exhibits and submitted that the procedure of compulsory acquisition of land under the relevant laws requires more

than guess work, but there must be certainty as to the particular land that was acquired. He relied on the cases of PROVOST OF LACOED VS. EDUN (2004) 6 NWLR (PT. 870) 472 at 508 paragraphs E-F, ONONUJU V. A. G. ANAMBRA STATE (2009) 10 NWLR (PT. 1148) 182 at 208 to submit that mere publication in official gazettes does not make acquisition valid and that non-service of notice of acquisition renders the acquisition invalid. That the DW2 merely tendered exhibits JB14 and JB15 without any evidence to establish that they were served on the community other than bare assertions. He referred to the case of L.S.D.P.C VS. BANIRE (1992) 5 NWLR (PT. 243) 620, where the Apex Court stated the requirements for a valid acquisition of land under the Public Lands Acquisition Law of Lagos State.

He also submitted that in this case, the notices did not specifically mention “Ogoyo” as one of the villages which land was acquired and there was no evidence before the trial Court showing the boundaries of the land covered by the notices of acquisition (exhibits JB14 and JB15), and no single survey plan was tendered in evidence by the 2nd Respondent in respect of the

land. These facts are too grave to be ignored according to the Appellants. It was further submitted that, though the 2nd Respondent pleaded that it will rely on composite plan No. 1521 of 14th January, 1994, to confirm that the Ogoyo village was within the acquisition covered by exhibits JB14 and JB15, no such plan was tendered in evidence and the Surveyor General who allegedly prepared it was not called to testify. The Appellants submitted that this is a proper case in which the Court can invoke the provisions of Section 167 of the Evidence Act, 2011 against the Respondents to presume that such plan if produced would be unfavourable to their case.

With regards to exhibits JB16, 18 and 19, the Appellants submitted that these documents were merely dumbed on the trial Court by the 2nd Respondent’s witness without proffering any explanation on the link between them and the oral evidence to show their relevance to the case. It was further argued that it is the duty of a party relying on documents in proof of his case to relate such documents to the specific area that documents supports because it is not the duty of the Court to conduct a search on the

documents and come out with a result of its research. Learned Appellant’s counsel referred us to the cases of ALAO VS. AKANO (2005) 11 NWLR (PT. 935) 160 at 178, TERAB VS. LAWAN (1992) 3 NWLR (PT. 231) 569 at 590 and JIMOH VS. AKANDE (2009) 5 NWLR (PT. 1135) 549 at 585.

In concluding argument on issue 1 (Appellants’ issue II), learned counsel submitted that the consequences of the 2nd Respondent’s failure to comply with the procedure of acquiring the Appellants’ land provided by the relevant laws is that any action taken on the land amount to a nullity as was held in the case of GOLDMARK NIG. LTD VS. IBAFON CO. LTD (2012) 10 NWLR (PT. 1308) 305. He urged the Court to so hold.

In arguing issue 2 (Appellants’ issue 3) on the admissibility of exhibits JB16, 18 and 19 by which the 2nd Respondent sought to establish the payment of compensation for the acquired Ogoyo land, learned counsel relied on Sections 89, 90 and 102 of the Evidence Act 2011 to submit that these documents are inadmissible evidence, being secondary evidence produced from the official records of Lagos State by the 2nd Respondent. He submitted that even

though the 2nd Respondent did in fact give the Appellants notice to produce those documents, the only admissible copies of the documents the Court can admit for the failure of the Appellants to produce the original are the certified true copies of the documents, (just as it did with the certificate of occupancy, JB17) and not the photocopies tendered by the Respondents. He submitted that the trial Court ought to have expunged these documents in the final judgment, because legally inadmissible evidence cannot be acted upon even if admitted by consent of parties. He relied on the cases of OMISORE VS. AREGBESOLA (2015) 15 NWLR (PT.1482) 205, BOB-MANUEL VS. WOJI (2010) NWLR (PT.1196) 260 at 272, AROMOLARAN VS. AGORO (2014) 18 NWLR (PT. 1438) 153 and SHANU VS. AFRIBANK (2002) 7 NWLR (PT. 795) 185 at 222 paras D-E in support.

On the alleged admission of the Appellants to the fact that their land has been acquired by the Lagos State Government and compensation paid, learned counsel submitted that acquisition of land being strictly a matter of law cannot be admitted by the Appellants. That, having pleaded and proved their title to the land in issue, the burden

shifts to the 2nd Respondent to establish the defence of compulsory acquisition. The Court’s attention was brought to the fact that no bona fide representative of the Appellants’ community received the alleged compensation for the acquisition and one Ejalonibo who acknowledged the receipt of the said compensation did not have the authority of the community to do so. Further submitted that, the trial Court having declared the Appellants’ right to the land, it was required to grant the appropriate consequential relief to protect the right so declared particularly by an order of injunction. He relied on the cases of ADIEBO VS. SAKI ESTATE LTD (1999) 7 NWLR (PT. 612) 525 AT 534 and BAMIGBOYE VS. OLUSOGA (1996) 4 NWLR (PT. 444) 520 in support.

With regards to issue 3 (Appellants’ issue 4), on the trial Court’s refusal to assess and award damages to the Appellants, learned counsel submitted that if this Court upholds the Appellants’ argument under issue 1 (Appellants’ issue II) supra, then we would hold that they are entitled to award of general damages for the denial of the enjoyment of their land for over 22 years. He

further argued that assuming the trial Court was right to hold that the Appellants were not entitled to compensation, but it still fell into error by failing to assess the quantum of damages it would have otherwise awarded in their favour in order for this Court to have a glimpse of the opinion of the trial Court on the award of damages. Nevertheless, we were urged to exercise our powers under Section 16 of the Court of Appeal Act to reverse the decision of the trial Court and award damages on the authority in the cases of UBN VS. ODUSOTE BOOKSTORES LTD (1995) 9 NWLR (PT. 421) 558 AND IYERE VS. B. F. F. M. LTD (2008) 18 NWLR (PT. 1119) 300 cited in support.

1ST RESPONDENT’S SUBMISSIONS
In arguing issue one, the 1st Respondent’s learned counsel referred to relief 2 claimed by the Appellants, vide its 5th amended statement of claim, for declaration that the Ogoyo community land was never acquired by the Lagos State Government and that any such purported acquisition was null and void. He submitted that the Appellants as the claimants had the onus of proving this assertion because the law presumes that the compulsory acquisition of land by

Government is regular. See the case of INTERGRATED RUBBER PRODUCTS LTD VS. OVIAWE (1992) 5 NWLR (PT. 243) 572 at 585-586 and Section 131 of the Evidence Act 2011 in support of the submissions.

We were referred to a further counter affidavit of Mukaila Adio Ejalonibu sworn on the 21st October, 1993 wherein he averred in paragraphs 5 and 6 that his father, the then Baale of Ogoyo village was served with a notice of revocation of their land in 1972, and he and other members of his community attended the ceremony at the Lagos State Secretariat for the presentation of the certificate of occupancy for land at Ikota for the re-settlement of Ogoyo community. He also averred that, he signed and collected a cheque of the sum of N114,120.00 for the Baale and the people of Ogoyo Community. The learned counsel urged us to hold that from the facts and evidence led before the trial Court, it was right to hold that the Ogoyo land was properly acquired and compensation paid to the Appellants. That the 1st Respondent was a contractor who was employed by the Lagos State Government to sand fill the acquired land and has since completed the job and it did not cause any nuisance against the Appellants. Having completed the job it was contracted to do, it has since left the area.

With regards of issue 2 (1st Respondent’s issue 2), on the admissibility of exhibits JD16, 18 and 19, learned counsel submitted that the trial Judge was right to admit and use the said documents in the final decision because they do not qualify as ‘public documents’ requiring certification under Section 105 of the Evidence Act 2011 as contended by the Appellants. The documents were letters of protest written to the Lagos State Government by the lawyers of the Appellants protesting the demolition of the Ogoyo village in 1985 and requesting for compensation and alternative land and monetary compensation. Learned counsel is of the view that these are not public documents relying on the cases of ABUUL VS. BENSU (2003) 16 NWLR (PT. 845) 59 AND GOVERNOR OF KWARA STATE VS. LAWAL (2007) 13 NWLR (PT. 1051) 343 AND SHYLON VS. UNIVERSITY OF IBADAN (2007) 1 NWLR (PT. 1014) 1 for support and to submit that the exhibits emanating from the Appellants’ solicitor requesting for compensation and re-settlement cannot by any stretch of imagination be said to be a matter of concern or interest to the general public.

On issue three, it was argued that the Appellants did not strictly prove their claim of special damages as required by law relying on several cases including the case of IMANA VS. ROBINSON (1979) 3 & 4 SC 1 at 23 in support. We were also referred to the evidence of CW1 and CW2 which evidence did not provide an assistance to the trial Court to assess and calculate the alleged special damages claimed, because the witnesses claimed they did not know the number of crops destroyed by the 1st Respondent and did not state who owns the crops and the buildings or their values or specify how they arrived at the values attached to the buildings and crops stated in the pleadings as special damages. This Court was therefore urged to hold that the Appellants having been compensated by Lagos State Government when it issued their lawyer with a cheque to the value of N114,120.00 and re-settled the community at Ikoto as shown in exhibits JB19 vide certificate of occupancy (exhibit JB17) dated 13th August, 2003, they are not entitled to any award of special or general damages. That, it

will amount to double compensation for the Appellants to be awarded any further special or general damages having been duly compensated and re-settled. See SPDC VS. KATAD (2006) 1 NWLR (pt. 960) 198 among others. The Court was urged to dismiss this appeal and to affirm the judgment of the lower Court.

2ND RESPONDENT’S SUBMISSIONS.
The submissions of the learned counsel on issue one are the same with that of the 1st Respondent. He however added on the identity of the Ogoyo Land that, in view of the fact that an exercise for the crop enumeration was undertaken by the Appellants and the 2nd Respondent’s officers as testified by CW2, means that the identity of the land in dispute was not in contention. Our attention was also drawn to the testimony of CW4 (page 129 of the record of appeal) who admitted that the lane in question is now an expressway, which he thinks was constructed by the Lagos State Government.

In arguing issue 2 on the admissibility of exhibits JB16, 18 and 19, the 2nd Respondents referred to paragraphs 6, 14 and 15 of the statement of defence of the 2nd Respondent wherein these documents were pleaded and attached

and the Appellants joined issues on them by their amended statement of claim, they become relevant and admissible as evidence. The purport of the exhibits was to show that the Appellants were aware of the acquisition of their land and asked for compensation and re-settlement. He argued that relevancy determines admissibility of evidence relying on Sections 6 to 8 of the Evidence Act and the case of Abubakar Vs. Chuks (2007) 12 SC 1 at 12 among others.
He made similar argument as the 1st Respondent that the said documents are not public documents within the contemplation of Section 102 of the Evidence Act.

On issue 3, regarding complaint of the Appellants against the failure of the lower Court to assess and award damages, he made similar submissions as the 1st Respondent to the effect that the Appellants failed to prove their entitlement to either special and/or general damages, especially as they have been compensated and re-settled. And that by exhibits JB18 and JB19, the Appellants have been shown to have accepted and acquiesced the acquisition of their Ogoyo land, have been duly compensated and therefore it will be improper to award them damages

in respect of the same injury complained of. We were referred to the case of TSOKWA MOTORS (NIG.) LTD VS. U. B. A. PLC (2008) 2 NWLR (PT. 1071) 347, in support of the argument canvasses and, in urging us to dismiss this appeal.

APPELLANTS’ REPLY BRIEF
In response to the 1st Respondent’s argument under issue one, the Appellants submitted that they have established that their land was not acquired by Lagos State Government and thus discharge the onus of proof placed on them by Section 131 of the Evidence Act. He argued that exhibits JB16 to JB19 relied upon have no probative value, being inadmissible evidence, as such, they cannot establish the acquisition of the land in issue.

On the reliance of the 1st Respondent to the counter affidavit of one Mukaila Adio Ejalonibu sworn on the 21st October, 1993, learned Appellants’ counsel submitted that although a Court is look at the processed in its file in relation to the proceedings before it, that cannot be license for the Court to extract evidence from the record that was not adduced before it. That, in this case no counter affidavit was admitted as evidence before the trial Court

by the Respondents to justify the 1st Respondent relying on it in its argument in paragraph 4.12 and 4.13 of its brief. That, since the 1st Respondent neither called the deponent of the said counter affidavit to tender same nor cross-examine the Appellants’ witnesses on it during the trial, it amounts for replacement of the record of appeal to raise and rely on it in the 1st Respondent’s brief. He urged the Court to hold that the land in issue was not validly acquired by the Lagos State Government.

As reply to the Respondents’ submissions on issue two, the Appellants argued that relevancy alone is not the basis of admissibility of a document relying on the case of JACOB VS. A. G. AKWA IBOM STATE (2002) 7 NWLR (PT. 765) 18 @ 35 to the effect that after satisfying relevancy, the document must still satisfy other provisions of the Evidence Act regarding certification etc. That, on the strength of Section 102(b) which the Respondents skipped in their argument, “public records kept in Nigeria of private documents” are public documents. See ONWUZURUIKE VS. EDOZIEM (2016) 6 NWLR (PT. 1508) 215 and TABIK INVESTMENT LTD VS. GTBANK PLC

(2011) 17 NWLR (PT. 1276) 240, in support, where the Apex Court held inter alia that the authorship of a document is not the determinative of its status as a public document.

The Appellants adopted their argument under issue one supra as their reply on points of law to the 2nd Respondent’s submissions and on the whole urged the Court to discountenance their submissions and allow this appeal.

RESOLUTION
ISSUES ONE AND TWO
These two issues distilled from grounds one, two and three of appeal questioned the correctness of the trial Court’s holding that the Appellants’ Ogoyo village land was compulsorily acquired by the Lagos State Government and compensation duly paid to the Appellants. The bone of contention and indeed the Appellants’ case at the trial Court and in this appeal discernable from the record of appeal and their briefs of argument is that, their Ogoyo village/land was not acquired by the Lagos State Government mainly because the gazettes/notices of the compulsory acquisition did not specifically mention ‘Ogoye’ village/land as among the land acquired for the Lagos State Lekki express way and

Peninsular Housing Scheme. Contrariwise, the Respondents, particularly the 2nd Respondent representing the Lagos State Government insisted that the Ogoyo land, along with other neighboring villages were validly acquired since 1972 and compensation paid to the community and an alternative land for their resettlement given to the community vide a certificate of occupancy received by their lawyers and Baale representative.

requirement of the said provisions regarding issuance of notice of compulsory acquisition to the owners of the land, publication of the said acquisition in the Government official gazettes are the procedure which must be strictly adhered to for the acquisition to be legally valid. Failure to give the required notice of the compulsory acquisition of lands to the owners will invalidate any such compulsory acquisition.
In the case of CITY PROPERTY LTD VS. A. G. LAGOS STATE (1976) LPELR-869, the Apex Court interpreted and explained the purpose of the provisions of Section 5 of the said Cap. 113 was to make the interested parties/owners of the lands be aware of the resolution of the Government to compulsorily acquire their land. It needs to added here that, there is no question of whether or not the owners/interested parties agree to the acquisition. Once the acquisition of the land is for public purpose as defined by Section 2 of the Law, the Lagos State Government’s right of acquisition is unfettered. The second notice to be issued to the owners or interested parties, as provided by Section 8 was for them to vacate the land within six weeks after

which the acquisition would be published in the government gazettes. The land does not legally or validly vest in the government unless the required notice is properly served on the owners of the land. This is trite. However, it needs to be emphasized that service of notice of compulsory acquisition of land on the owners/interested party as prescribed by law is a matter of fact that requires to be proved by sufficient and credible evidence and the circumstances of the case under consideration. See also GOLDMARK (NIG.) LTD & ORS. VS. IBAFON CO. LTD & ORS. (supra), BELLO VS. DIOCESAN SYNOD OF LAGOS & ORS. (1973) LPELR-768 (SC), PROVOST OF LAGOS COLLEGE OF EDUCATION VS. EDUN (supra), AGBON & ANOR. VS. LEKKI WORLDWIDE INVESTMENT CO. LTD (2019) LPELR-47315 (CA), and ADEGUNLE VS. GOV. OF LAGOS STATE & ORS. (2019) LPELR-48013 (CA).

The Respondents argued that since the Appellants have asserted in their pleadings that Ogoyo land was not compulsorily acquired by the Lagos State Government, they have the burden to prove that assertion. But the law is trite that the burden of proof always rests on the party who asserts the affirmative of the

issue in controversy not on the party that asserts the negative. This principle of law is captured by the Latin maxims ei qui affirmat non ei qui negat incumbit probation or incumbit probation qui dicit, non qui negat. The burden of proof lies on the one who alleges and not on him who denies. See OMISORE & ANOR. VS. AREGBESOLA & ORS. (2015) LPELR-24803 (SC), ADELEKE VS. IYANDA (2001) 13 NWLR (PT. 729) 1 (SC) and ARUM V. NWOBODO (2004) 9 NWLR (PT. 878) 411 (CA).
The Appellants by their pleadings denied that their land was compulsorily acquired by the Lagos State Government because the name of their village was not mentioned in the notices published by the Lagos State Government of the names of the villages so acquired, thus, their claim for trespass and nuisance against the Respondents. Having originated their claim in trespass and seeking injunction against the Respondents, the Appellants put their title to land automatically in issue which they must prove as was held by this Court in ADEGUNLE VS. GOV. OF LAGOS STATE (supra) relying on the Supreme Court’s decision in the case of ONOVO V. MBA (2014) 14 NWLR (PT. 1427) 397.

The gravamen of their case is captured in paragraphs 7 and 26 of the fifth amended statement of claim (page 3 of the record of appeal) the Appellant asserted that:
7. By the native law and custom of the Ogoyo Village, all the lands of Ogoyo village/family are vested in the Baale of Ogoyo who holds same in trust for the Ogoyo community and exercise various acts of possession and ownership thereon for and on behalf of the Ogoyo Village.
26. The plaintiffs state that the Lagos State Government had at no time served Plaintiffs and the Ogoyo Village any notice of acquisition of the Ogoyo Communal land. Neither did the Plaintiffs’ community receive any compensation from the Lagos State Government in any manner whatsoever nor resettle or agreed to be resettled at all.
The trial Court found that indeed the Appellants proved they are the owners of the Ogoyo Village/land and there is no appeal regarding that finding as correctly pointed out by the Appellants’ learned counsel. Therefore, having proved the ownership of the land in dispute, and having asserted the negative in their pleadings supra, regarding the compulsory acquisition of their land, the

burden of proof shifted to the Respondents who asserted the affirmative of the issues namely; that the Appellants’ land has been compulsorily acquired, that, they have been notified of the acquisition, that they have been paid compensation and have been resettled in another land upon which they have been granted a certificate of occupancy.
However, being a civil case, the burden is not static, but swings from one party to other until the end of proceedings when the issue in contention must be decided on the balance of probabilities. This is the purport of Section 136 of the Evidence Act 2011. See DURU VS. NWOSU (1989) 4 NWLR (PT. 113) 24 AT 35 (SC).

The evidence–in-chief of the DW2 (2nd Respondent’s witness) regarding the compulsory acquisition of Appellants’ Ogoyo village/land is contained in pages 58 to 61 of the record of appeal. He stated that, the land from Moroko to Epe including the Appellants village was compulsorily acquired and notices served on them and enumeration was conducted “in order to be able to determine the compensation to be paid and land area to serve as resettlement scheme to the inhabitants of the affected area.”

The Lagos State Commissioner for Works and Transportation delivered a press briefing in respect of all the affected land including Ogoyo. Upon filing this suit, the 2nd Respondent requested the Appellants to provide it with copy of the survey plan of their land that they are claiming not to be among the acquired land, but they failed to do so. The Surveyor General then made his own composite plan of the land, but the Respondents did not tender this in evidence at the trial. In paragraph 10 of the witness evidence, he stated that notices of the acquisition were served on the reigning Baale of the village by which notice the Lagos State Government invited claims for compensation from the original owners of the land and any person claiming to have any right or interest on the land. The 1st Respondent relied on the certificate of occupancy issued for the resettlement of Ogoyo village and the copy of the ECO Bank cheque by which the Appellants community was paid compensation for their acquired land. He testified that the village has been re-settled on a parcel of land called Ogoyo Village Ikota and compensation paid to the community through their solicitor Messrs. Adeyemi Ajiboye & CO.

The record also shows that PW1 in page 107 to 113, admitted under cross-examination that there was indeed structures enumeration carried out by the Ogoyo Community with Lagos State Government officials. Also PW2, who at the time he was giving evidence, was the current Baale of Ogoyo also admitted under cross-examination (pages 114 to 116 of the record) that Mukaila Sumola also known as “Ejalonibu”, the person who accepted the cheque for compensation on behalf of the Baale and villagers of Ogoyo was his main secretary, and the secretary of the Baale before him. He also said there was a dispute between him and Ejalonibu whom he said is now in Ikota, the place where the Respondents said Ogoya village was re-settled. It was also his evidence that the Baale before him died in 1983 and he became Baale in 1984. He also stated that though he was not aware that Ejalonibu and Ogoyo Lawyers collected compensation and certificate of occupancy of the land where the village was resettled, but he said he sued Ejalonibu:
Because of the letters he wrote to LASG, the entire community disagree (sic) with him

when he collected on behalf of the community between 1972 to 1975. I was not the Baale between 1973 and 1976, but was among the committee of Baales.

He also agreed that the Baale would be the 1st person to know if the Ogoyo village was acquired by the Government and the secretary, whom was Ejalonibu would be the second person to know. And finally, upon being suggested to him that he would not know whether between 1972 to 1976 notice of acquisition was served on the Ogoye, his answer on the record in page 116 is; “As at the time, there was no Ogoyo when the gazette came out. I don’t know whether there is an acquisition.”

It is also noteworthy that, the Appellants’ PW3 who said he was in primary school as at 1972 to 1976, testified under cross-examination that Mukaila Ejalonibu “has no position in Ogoyo community” which evidence directly contradicted that of PW2 who categorically said Mukaila Ejalonibu was not only his main secretary but was secretary of the late Baale before him. I also note that PW3 said that Ogoyo village was demolished by the 1st Respondent, and yet the witnesses claimed that they still live

there. I examined the evidence of PW4, the surveyor who drew the survey plan of the land in issue. He admitted under cross-examination that he saw road being constructed on the land he was shown by the PW2 and he still drew a survey plan of the land where he saw a road being constructed which he assumed was by the Government.

What is discernible from the evidence of the Appellants’ witnesses particularly, the Baale is that the Baale of Ogoyo’s secretary wrote letters to the Lagos State Government regarding the acquisition of the land and sought for compensation and resettlement. Pursuant to the said letters, the Government paid the compensation vide the cheque accepted by the lawyers of the Appellants community and a certificate of occupancy of the resettlement land was also issued and collected by the still secretary of the Baale of Ogoyo. However, for some reasons, the Appellants disagreed with the acquisition and/or compensation paid and thus, this suit. As stated earlier, disagreement with the compulsory acquisition per se does not render such acquisition invalid.

With regards to the objection of exhibits JB16, JB18 and JB19, which were not certified true copies. The said exhibits JB16 is the text of the press briefing made by the Commissioner for Works and Transport on 11th October, 1985. Exhibits JB18 are two letters written by the Appellants dated 4th October, 1988 and 11th June, 1989 to the Lagos State Government requesting for payment of compensation and to be relocated. Exhibit JB19 are letters of re-allocation of dater 14th May, 1993 and receipt of N114,120 dated 16th September, 1993. These documents are copied at pages 64 to 79 of the record of appeal. The two letters are the letters that the PW2 in whose name they were signed that he accused his secretary Mukaila aka ‘Ejalonibu’ wrote and which he said he sued him for. While the photocopies of the Eko International Bank cheque in the sum of N113,120 and acknowledgment of the receipt of same by Mr. Adeyemi Aiboye & Co. and Chief Mukaila Ejalonibu on the 16th September, 1993, all seek to establish the fact that compensation was paid to the community for the compulsory acquisition of the Ogoyo land. There is no doubt that these are public documents coming from government custody and they need to be certified vide the provisions of Section 102(b) of the Evidence Act for them to admissible evidence as correctly relied upon by the Appellants.

However, there was evidence from both parties regarding the compensation paid for the acquisition of the land and the re-settlement of the village evidenced by certificate of occupancy, JB17. The question is, in the circumstances, whether the Appellants can still validly claim that the Ogoyo land was not acquired or, that they are not aware of such acquisition. I am of the firm view that the answer must be in the negative, in view of the evidence on record. As I stated earlier, the fact of disagreeing with the acquisition by an interested party of the land to be acquired, which is the Appellants’ case through the testimonies of their witnesses, will not invalidate the acquisition. The owners did not have to agree with the acquisition for were it to be so; it will be difficult if not impossible for any land to be acquired for public purposes thus rendering the law impotent. That is why it is called “compulsory acquisition” for the overriding public interest.

On the balance of probabilities, I hold that the trial Court was right to hold that in view of the evidence led before it, the Ogoyo land has been compulsory acquired and the village has been re-settled at the Ikota. I totally agree. Issues 1 and 2 are resolved against the Appellants.

ISSUE THREE
By this issue, the Appellants complained that the trial Court was wrong not to award damages to the Appellants for the compulsory acquisition of their land. The learned trial Judge having found that the Ogoyo villagers were compensated and given alternative land vide certificate of occupancy (exhibit JB17), they are not entitled to further award of damages, which according to the Respondents would amount to bonus.

Again, I examined the pleadings of the Appellants and their witnesses evidence-in-chief and under cross-examination. It is in evidence that there was structuring enumeration carried out on the land in issue before the entry of the 1st Respondent to dredge and sand fill the land. Though, the Appellants claimed special damages they did not call any evidence to strictly prove same as correctly found by the trial Court. Moreover, their case of trespass fails in view of the correct finding

that their land was compulsorily acquired by the Lagos State Government for public purposes and they were compensated, which finding I uphold in my determination of issues one and two supra. I agree with the Respondents that an award of damages whether special or general would amount to double compensation. I resolve this issue against the Appellants.

Consequent to the resolution of the three issues against the Appellant, I find no iota of merit in this appeal and I dismiss it. I affirm the judgment of the High Court of Lagos State delivered on the 24th June, 2013, in suit NO: LD/259/92. Parties shall bear their costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brethren, BALKISU BELLO ALIYU, J.C.A.

EBIOWEI TOBI, J.C.A.: My learned brother BALKISU BELLO ALIYU, J.C.A. has afforded me the opportunity of reading in draft the lead judgment just delivered. I agree with the reasoning and conclusions reached therein. I also dismiss the appeal as lacking in merit.

Appearances:

OLUWA KEHINDE, ESQ. For Appellant(s)

A. OSARO, ESQ. – FOR 1ST RESPONDENT
OYELADE OLAYINKA, ESQ. – FOR 2ND RESPONDENT For Respondent(s)