A.G ANAMBRA STATE v. ANUEYIAGU & ORS
(2022)LCN/15929(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Friday, June 03, 2022
CA/AW/677/2018
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
ATTORNEY GENERAL ANAMBRA STATE APPELANT(S)
And
1. MADUKA ANUEYIAGU 2. CHARLES NWANYA 3. ANTHONY NGENE (For Themselves And On Behalf Of All Members Of Amudo, Umuayom, Umunoke, Umuoramma, Ifite, Amachalla And Umuzocha Villages, Awka) RESPONDENT(S)
RATIO
THE POSITION OF LAW IN DETERIMINING WHETHER OR NOT A COURT HAS JURISDICTION TO ENTERTAIN A SUBJECT MATTER
The law is trite that in determining whether a Court has jurisdiction to entertain the subject matter of any dispute submitted to it for adjudication, the Court will only look at the plaintiff’s claim and not the statement of defence. In BAKARE V AJOSE-ADEOGUN [2014) 6 NWLR, PT 1403, 320 AT 351, this Court held that:
“It is now trite that in the determination of locus standi the plaintiff’s statement of claim should be the only process that should be considered or should receive the attention of the Court. The Court has maintained this stand. In Adesokan v. Prince Adegorolu (1997) 3 NWLR (Pt.493) 261 this Court held that in order to determine whether or not a plaintiff has locus standi it is the statement of claim that must be considered. Hence, the well established principle of law that a defendant who challenges the locus standi of the plaintiff in limine is deemed to accept as correct all the averments contained in the statement of claim.” PER MAHMOUD, J.C.A.
WHETHER OR NOT AN ESTOPPEL IS A DEFENCE WHICH MUST BE SPECIFICALLY PLEADED
It is trite law that estoppel is a defence which must be specifically pleaded and particularised in the statement of defence. When successfully pleaded, it operates not only against the parties but also the Court itself and deprives it of its jurisdiction to entertain the same cause of action on the same issue previously determined between the same parties by a Court of competent jurisdiction.
However, there are several conditions which a party relying on the plea of estoppel per rem judicata must fulfil to entitle him to the fruit of the plea. These conditions have been well settled by decisions of this Court and the Supreme Court in a long list of reported and unreported decisions. The conditions are that the party relying on the plea must:
a. plead estoppel with relevant facts;
b. produce certified true copy of the previous judgment;
c. establish that the parties or their privies are the same;
d. establish that the Court that delivered the judgment in the previous case is competent;
e. establish that the judgment in the previous suit is final and subsisting;
f. establish that the subject matter of the previous suit is the same with the suit under consideration;
See OGBOLOSINGHA & ANOR V B.S.I.E.C. & 11 ORS [2015] 6 NWLR, PT 1455, 311.
A party relying on the plea of estoppel per rem judicata must fulfil all the conditions set out above to succeed. The plea of estoppel per rem judicata will fail if the party relying on it fails to establish any of the conditions set out above. PER MAHMOUD, JC.A.
THE EFFECT OF A SUCCESSFUL PLEA OF ESTOPPEL PER REM JUDICATA
The effect of a successful plea of estoppel per rem judicata is that it strips the Court seized of the new suit of its jurisdiction to entertain it. See BOLAJI AKINKUNMI V RASAQ OLANREWAJU SADIQ [1997] 8 NWLR, 277 AT 288.
As it relates to estoppel by conduct, a party relying on it must plead same in his defence and it is not just enough to plead the actual conduct of the defendant which the plaintiff relies upon as constituting the representations made by the defendant to the plaintiff, the plaintiff is expected to further plead the acts of detriment of the plaintiff which the plaintiff did in reliance on the defendant’s representations. See BAFFA V ODILI [2001] 15 NWLR, PT 737, 709 AT 741–742. PER MAHMOUD, J.C.A.
THE POSITION OF LAW WHERE A LAND IS COMPULSORILY ACQUIRED FOR PUBLIC PURPOSE
The law is trite that where a land is compulsorily acquired for public purpose, the land cannot be used other for any other purpose other than for public purpose. Where at any point in time the land is used for any purpose other than for public purpose the acquisition would fail and the land would automatically revert to the original owners. In OLATUNJI V MILITARY GOVERNOR OF OYO STATE [1995] 5 NWLR, PT 397, 586 AT 602, PARAS F-G, this Court followed the decisions in A.O. OSHO V FOREIGN FINANCE CORPORATION [1991] 4 NWLR, PT 184, 157; CHIEF A.O. LAWSON V CHIEF A A. AJIBULU [1991] 6 NWLR, PT 195, 44 AND CHIEF EREKU V THE MILITARY GOVERNOR, MID-WESTERN STATE OF NIGERIA [1974] 10 SC 59; (1974) 1 ALL NLR (PT.2) 163 and reiterated that:
“If a property is ostensibly acquired for public purpose and it is subsequently discovered that it has directly or indirectly been diverted to serve private need the acquisition can be vitiated. The acquiring authority cannot rob Peter to pay Paul by divesting one citizen of his interest in a property by vesting same in another: Dzungwe v. Gbishe (Supra). If the acquiring authority can no longer find a public purpose for the land so acquired the only avenue open to it is to deacquire it and let the same revert to the person in whom it was already vested. And in all cases where public purpose failed, the land reverted to original owner: Ajad & Another v. Sole Administrator for Ibadan City Council (1971) 1 NMLR 74.” PER MAHMOUD, J.C.A.
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): This appeal originated from the judgment of T.U. Oguji of the High Court of Anambra State sitting in Awka delivered on 7th March 2018. By Paragraph 18 of the Further Amended Statement of Claim, the Plaintiffs sought a number of reliefs against the Defendant. The gist of the Plaintiffs’ case at the lower Court is that the land now in dispute comprising the site of the College of Education at Awka, more particularly described in the Deed of Conveyance dated 28th day of September 1979 and executed between Chukwuma Anueyiagu and others including all the Plaintiffs herein on the one part and Colonel Datti Sadiq Abubakar, Military Administrator of Anambra State for and on behalf of the said Anambra State Government of the other part. The land now in dispute originally belonged to the Plaintiffs but was by a Deed of Conveyance transferred to the Defendant for the development and management of the Awka College of Education.
The Plaintiffs argued that the Government of Anambra State has since abandoned the purpose of developing and managing the aforesaid land as and for Awka College of Education.
In defence of the suit, the Defendant pleaded that following the creation of the present Anambra State in 1991 and Awka becoming the State Capital, there arose the need for proper planning of the State Capital. Consequently, the College of Education was moved to Nsugbe so as to secure land for development in the State Capital. The assets of the College both moveable and immovable were left in the hands of the State Government. The governor of Anambra State further issued a Revocation Notice revoking the rights of occupancy of the Plaintiffs.
At the conclusion of trial, the trial Court entered judgment for the Plaintiffs, awarded damages and costs against the Defendant.
Dissatisfied with the above judgment of the learned trial Judge, the Defendant (now Appellant) appealed to this Court via her Notice of Appeal which was later amended with leave of this Court and deemed properly filed and served on 12th October 2020. The Plaintiffs (now Respondents) filed a Respondents’ Notice seeking variation of the judgment of the trial Court.
In compliance with the Rules of Court, the Appellant filed her Brief of Argument on 14th January 2021 but deemed properly filed and served on 18th January 2021. The Appellant distilled 3 (three) distinct issues for determination, to wit:
1. Whether the learned trial Court rightly determined that the Respondents have any cause of action to maintain the instant suit. [distilled from Grounds 1, 2, 5 & 6]
2. Whether the Respondents having absolutely divested themselves of any interest in the land in dispute vide Exhibit P1 (Deed of Conveyance dated 28th September 1979) and in the light of Edict No. 1 of 1991, the learned trial Court rightly determined that the Appellant compulsorily acquired the land without any Notice of Revocation [distilled from Grounds 3, 4 & 8]
3. Whether the award of damages made against the Appellant by the learned trial Court is correct [distilled from Ground 7]
The Respondents on the other hand filed their Respondents’ Brief of Argument which was deemed properly filed and served on 9th March 2021. The Respondents also distilled 3 (three) issues for determination, to wit;
1. Whether the Court below had the jurisdiction to determine the substantive suit [distilled from Grounds 1, 2, 5 and 6]
2. Whether, in the light of the evidence adduced by the parties at the Court below, the learned trial Judge rightly granted reliefs a, d, h and i of the Respondents’ Grounds 3, 4 and 8]
3. Whether the learned trial Judge rightly awarded the Appellant and in favour of the Respondents [distilled from Ground 7].
The Appellant also filed a Reply Brief on 15th June 2021 which was deemed properly filed and served on 23rd September 2021.
It is important to note that this Court on 12th October 2020 granted leave to the Appellant to adduce additional documentary evidence. Further to the leave, this Court admitted the additional documents and marked them as Exhibits “B1” – “B15” respectively.
The issues submitted by the respective counsel are similar. In deciding this appeal, I shall adopt the issues for determination formulated by the Appellant in his Appellant’s Brief of Argument.
Issue No. 1
“Whether the learned trial Court rightly determined that the Respondents have any cause of action to maintain the instant suit?”
Mr. Ikwueto, SAN submitted that by virtue of the Deed of Conveyance dated 28th September 1979 and registered as No. 1 at page 1 in Volume 595 in the Lands Registry, the Respondents as owners absolute in possession donated all that parcel of land measuring approximately 762.926 Hectares and 46.631 Hectares situate and lying in Awka to the then Military Administrator of Anambra State to hold same in absolute title for the Government of Anambra State of Nigeria forever.
He argued that the grant of the aforesaid lands by the Respondents to the Appellant completely extinguished and divested in perpetuity the Respondents of any interest in the said parcels of land. He referred this Court to the recital of the Deed of Conveyance. He further submitted that upon the creation of the new Anambra State in 1991, the entire parcel of land contained in the Deed of Conveyance became vested in the new Anambra State. And by Edict No. 1 of 1991, the then Military Administrator acquired “all assets, funds, resources and other moveable and immovable property vested in the Awka College (College of Education Awka) shall by virtue of this Edict and without further assurance, be vested in the Government of Anambra State to be used or applied in such manner and for such purposes as the Military Administrator, shall, in writing direct.”
Mr. Ikweto SAN submitted that the lower Court did not seriously pay any attention or cognizance to the provisions of Edict No. 1 of 1991 in the evaluation of the case. He argued that if the lower Court had properly evaluated the said Edict it would have rightly come to the conclusion that with the cessation of Awka College of Education and transfer of same to Nsugbe, the government of Anambra State acquired the assets of the former College of Education and utilized same inter alia for the purpose of the present Nnamdi Azikiwe University. He conceded that part of the land was deployed for use as Government House and Government Reserved Areas. He however, submitted that with the enactment of Edict No. 1 of 1991 the land in dispute was acquired by Anambra State and validly vested in the State Government; the original land owning families no longer have any cognizable interest in the said land. He submitted that the decision in CHIEF DAN OGBUEFI V A.S.E.C. [2011] All FWLR PT 603, 173 relied on by the lower Court did not support the finding of the Court.
Arguing on locus, the Appellant submitted that not having any legitimate rights over the land now in dispute, the Respondents have no locus standi to maintain this suit by operation of law; to wit the Edict No. 1 of 1991. Had the lower Court taken a hard look at the pleadings of the Respondents and considered the legal effect of the disposition in the Deed of Conveyance through which the Respondents’ community willingly and voluntarily donated the land in dispute, it would have been obvious that the Respondents had no subsisting title or interest to maintain over the land in dispute. The following decisions were also relied on by the Appellant: SANYAOLU V COKER [1983] 3 SC (REPRINT) 80 AT 98, THOMAS V OLUFOSOYE [1986] NWLR, PT 18, 669 AT 682, CHINWO V CHINWO [2010] LPELR-9113 (CA), B.B. APUGO & SONS LTD V OHMB [2016] LPELR-40598 (SC) 84–86, DADA V OGUNSANYA [1992] LPELR-908 (SC), inter alia.
The Respondents on the other hand submitted in their Issue 1 which is similar to the Appellant’s Issue No. 1 that the Appellant in its Further Amended Statement of Defence raised the jurisdictional issue of limitation of action and the Respondents joined issues on it. The lower Court duly considered the issue of limitation of action in its judgment and came to the conclusion that the Respondents’ substantive suit was not caught up by limitation and thus not statute-barred. Despite challenging the judgment of the lower Court on limitation in Grounds 1, 2 and 6 of their Amended Notice of Appeal no issue or argument of this was proffered by the Appellant in his Brief of Argument. In a rather U-turn, the Appellant raised and argued the issue of locus standi in her Brief of Argument; the issue was neither raised nor pronounced upon by the lower Court. The Respondents then urged the Court to strike out Grounds 1, 2 and 6 of the Amended Notice of Appeal which they allege challenged the decision of the lower Court on limitation. They cited PURIFICATION TECHNIQUE NIG. LTD & ORS V JUBRIL & ORS [2012] 18 NWLR, PT 1331, 109 AT 129.
The Respondents further argued that the Appellant’s issue 1 was incompetent for 2 (two) broad reasons:
a. That it was distilled from Grounds 1, 2 and 6 which are complaints on the part of the judgment of the trial Court on limitation of action and not locus standi. Grounds 1, 2 and 6 which are deemed abandoned were lumped with Ground 5;
b. That the issue of locus standi raised and argued under issue 1 was neither raised nor decided at the trial Court.
The Respondents argued that what the Appellant has done is equivalent to lumping an incompetent ground of appeal with a competent one and any issue distilled from such grounds of appeal will be incompetent as it is not the duty of the Court to sever them. He cited AKUCHIE V NWAMAD [1992] 8 NWLR, PT 258, 214 AT 233.
In the alternative, the Respondents submitted that should this Court hold that the Appellant’s Issue 1 is competent then the Court should declare the arguments proffered by the Appellant in support of the issue as misconceived. The Respondents quoted relevant parts of the Deed of Conveyance between the parties and submitted that it is clear that the disputed land was donated to the Anambra State Government on the condition that it shall be used for the development and management of Awka College of Education and not for any other purpose. Title to the donated land would only vest in the Anambra State Government if and only if it develops the donated land as and for Awka College of Education. The Respondents as indigenes would derive certain benefits if the Awka College of Education is sited and developed on their land and that it was in consideration of those benefits that they donated their land. Indeed, parties are bound by their agreement and where a contract is made subject to the fulfilment of certain conditions, the contract is not formed and binding until the conditions are met. They cited BEST (NIG) LTD V B.H. (NIG) LTD [2011] 15 NWLR, PT 1239, 95 AT 117; INTELS NIG LTD V BASSY [2013] ALL FWLR, PT 675, 376 AT 384, inter alia. They contended that the Appellant having failed to use the land for the purpose for which it was donated, the agreement fails and title automatically reverts to the Respondents.
The Respondents argued that the submissions of the Appellant with respect to Edict No. 1 of 1991 were misconceptions. They argued that the disputed land was never granted to Awka College of Education but to Anambra State Government on the condition that it will develop and manage the school on the land. Section 5(1)(c) of the Edict relates to those properties acquired by the school upon being established and does not include the disputed land. They urged the Court to give the literal meaning of the words in Section 5(1)(c) of the Edict. In conclusion, the Respondents submitted that they being the original owners of the land are imbued with locus standi to commence the substantive action.
In its Reply Brief, the Appellant urged this Court to discountenance the argument in Paragraphs 2.8, 4.22 and 4.23 of their Respondents’ Brief of Argument where they argued that the additional documentary evidence which were allowed to be adduced by an order of this Court made on 12th October 2020 were not part of the evidence before the learned trial Court. The Appellant reasoned that not having challenged nor opposed the grant of the application, the Respondents are estopped from contending that the additional record already deemed as part of the Record of Appeal are not to be used for the hearing and determination of this appeal.
The Appellant further argued that the submission in Paragraph 4.22 of the Respondents’ Brief of Argument that the Appellant did not provide any evidence in proof of the claim that 20% compensatory plots were released to the Respondents was misconceived. The Appellant referred this Court to Exhibits B4–B14 which were deemed by this Court as part of the Record of Appeal and are all documentary evidence relating to the release of portions of the land in dispute to some of the constituent families of the Respondents. Specifically, Exhibits B6 and B7 refer to the release of 20% compensatory plots on the application of the original land owning families.
Similarly, the Appellant submitted that the argument that its Brief of Argument neither raised any issue of limitation nor proffered any argument on limitation is misconceived and that a calm and dispassionate reading of its argument in Paragraphs 4.5 to 4.15 of its Brief would show that they centre on the Respondents’ lack of either legitimate or legal interest to maintain the suit. The Appellant submitted that having divested their title in the land in dispute, the Respondents lack the locus standi to commence the instant suit. This Court was urged to reject the argument of the Respondents on the competence of Grounds 1, 2, 5 and 6 of their Amended Notice of Appeal. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
It is important to first determine the competence of this issue in view of the Respondents’ challenge of Grounds 1, 2, 5 and 6 of the Appellant’s Notice of Appeal. I have carefully reviewed the arguments for and against the competence of the said grounds of appeal vis-à-vis the Notice of Appeal. I am of the firm view that the said Grounds 1, 2, 5 and 6 of the Notice of Appeal are competent. I further hold that issue 1 formulated from the said Grounds 1, 2, 5 and 6 of the Appellant’s Notice of Appeal is competent.
The gravamen of the Appellant’s contention in this issue is that the Respondents having divested themselves of their interest over the subject matter of this appeal vide the Deed of Conveyance dated 28th September 1979, they no longer have any interest in the land and thus lack the locus standi to institute this action. In addition, that by virtue of Section 5(1) of the College of Education, Awka Law (Repeal) Edict 1991, the donated land became vested in the Appellant and the Respondents lack the locus standi to sue for its recovery.
It is not disputed that the Respondents and their respective villages were the original owners of the land in dispute. It is also not disputed that the Respondents donated the land in dispute to the Government of Anambra State for the development and management of the Awka College of Education. It is thus not correct to hold as the Appellant has argued that by the mere fact of this divestment and the subsequent promulgation of Edict No. 1 the Respondents no longer have locus standi to ventilate any grievance over what they perceive to be a violation of the agreement they entered into vide the Deed of Conveyance.
The Respondents as parties to the Deed of Conveyance have the requisite interest to clothe them with locus standi to commence this action. Similarly, the provisions of Section 5(1)(c) of Edict No. 1 cannot operate to deny the Respondents of their locus standi over the subject matter of the Deed of Conveyance.
The law is trite that in determining whether a Court has jurisdiction to entertain the subject matter of any dispute submitted to it for adjudication, the Court will only look at the plaintiff’s claim and not the statement of defence. In BAKARE V AJOSE-ADEOGUN [2014) 6 NWLR, PT 1403, 320 AT 351, this Court held that:
“It is now trite that in the determination of locus standi the plaintiff’s statement of claim should be the only process that should be considered or should receive the attention of the Court. The Court has maintained this stand. In Adesokan v. Prince Adegorolu (1997) 3 NWLR (Pt.493) 261 this Court held that in order to determine whether or not a plaintiff has locus standi it is the statement of claim that must be considered. Hence, the well established principle of law that a defendant who challenges the locus standi of the plaintiff in limine is deemed to accept as correct all the averments contained in the statement of claim.”
In the instant case, the Respondents’ amended statement of claim sufficiently discloses the Respondents’ interest in the subject matter. More so, the Respondents’ claim as gleaned from the amended statement of claim centred on the Deed of Conveyance and not Edict No. 1 which was obviously relied upon by the Appellant in its defence to the suit at the lower Court. On the strength of the foregoing, I hereby find that the Respondents have sufficient interest to institute this action and the lower Court rightly assumed jurisdiction. This issue is hereby resolved in favour of the Respondents and against the Appellant.
Issue No. 2
“Whether the Respondents having absolutely divested themselves of any interest in the land in dispute vide Exhibit P1 (Deed of Conveyance dated 28th September 1979) and in the light of Edict No. 1 of 1991, the learned trial Court rightly determined that the Appellant compulsorily acquired the land without any Notice of Revocation”
The Appellant submitted that the finding of the lower Court that the grant of the parcels of land has partly failed runs contrary to the evidence and the law in the suit thus making it perverse. He cited the cases of IWUOHA V NIGERIA POSTAL SERVICES LTD [2003] LPELR–1569 (SC) AT 39–40; FIXITY INVESTMENT LTD V GUMEL [2016] LPELR–41549 (CA) 12–13, among others, and urged this Court to set aside the finding of the lower Court. He further submitted that had the lower Court not come to the perverse finding that the grant of the land in dispute has partly failed, it would have on the strength of the documentary evidence before the Court held the Respondents’ case of abandonment of the disputed land against the Anambra State Government as frivolous and contrary to uncontested facts and circumstances of the case. He urged this Court to set aside the finding of abandonment of land by the Anambra State Government and hold that on the basis of the documentary evidence, particularly Edict No. 1 of 1991, the land in dispute was never abandoned. The Appellant further submitted that in construing a written document the Court will not read into it what is not contained therein and that different parts of the document must be interpreted in the light of the whole document not otherwise. He cited the case of OGAH V IKPEAZU & ORS [2017] LPELR–42372 (SC) AT 63 AND AKINLADE V AYINDE [2020] LPELR–49592 (CA) AT 29–30. He then referred the Court to the Deed of Conveyance between the parties and submitted that nothing on the face of the document that suggests that where the land donated to the Anambra State Government ceases to be used solely by/for Awka College of Education, the land will revert back to the original grantors. He argued that the earlier grant or donation created absolute title forever in favour of the Anambra State Government. He maintained that the oral evidence of PW1 claiming that they told the Government that they will retake the land if it was no longer to be used for Awka College of Education is illegal, inadmissible and goes to no issue. The Appellant submitted that the validity of Edict No. 1 of 1991 has not been challenged by anyone and that the trial Court ought to have asked if the legitimacy of the Edict can be challenged after a period of 20 years.
The Appellant drew the attention of this Court to the various letters written by the Respondents’ family to the Anambra State Government requesting release of some portions out of the land in dispute and the response of the Government releasing some portions to them – Exhibits B7 & B9 and Exhibits B6, B8, B10, B11, B12, B13 and B14 respectively. He then submitted that the request for release and actual release of portions of the land in dispute by the Anambra State Government to the original land-owning families, the Respondents are estopped from contending that the Appellant abandoned the land and has not been using it. The decision of the Anambra State High Court in Suit No: A/11/2002 Nwachukwu V Onuoha delivered on 5th February 2007 where the Court held, inter alia, that “[T]his donation effectively extinguished the right of the Original Owners” was also relied on by the Appellant. The Appellant added that the suit was instituted by a part of the present Respondents. He concluded that the trial Court was not imbued with power to sit on appeal over the decision of his brother delivered in Suit No: A/11/2002 Nwachukwu V Onuoha. He cited AZUH V UNION BANK [2014] LPELR-22913 (SC) 33–34; SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED V EDAMKUE [2009] 14 NWLR, PT 1160, 1 AT 28F–29F, WITT & BUSCH LTD V DALE POWER SYSTEMS PLC [2007] 17 NWLR, PT 1062, 1 AT 25, YUSUF V ADEGOKE [2007] 11 NWLR, PT 1045, 332 AT 361H–362A. In concluding his argument, the Appellant submitted that had the lower Court rightly appreciated that by the overriding provisions of Edict No. 1 of 1991 read together with the Deed of Conveyance the title in the land in dispute remained in the Anambra State Government, the Court would not have fallen into the erroneous conclusion that the Respondents established the case of trespass. He urged this Court to set aside the finding of the lower Court.
Although the Respondents couched their Issue 2 differently from how the Appellant couched his, both issues are related and distilled from the same Grounds of Appeal (3, 4 & 8 respectively). In arguing this issue, the Respondents incorporated their arguments in Paragraphs 4.11, 4.12, 4.13, 4.14, 4.15 and 4.16 of their Brief of Argument to their argument in Issue 2. In addition, the Respondents submitted that the Appellant did not join issues with the Respondents on the facts pleaded in Paragraphs 13, 14 and 15 of the Further Amended Statement of Claim. In the aforesaid paragraphs, the Respondents pleaded the identity, delineation, features and dimension of the donated land and the portion in dispute and tendered Survey Plan No. JSS/D10/2015 admitted in evidence as Exhibit P1. In his judgment, the lower Court found that the Appellant did not join issues with the averments in Paragraphs 11, 12, 13, 14, 15, 16 and 17 of the Respondents’ Further Amended Statement of Claim. The part of the donated land verged red which the lower Court found as being used for private and commercial purposes is deemed to have been abandoned for the purpose it was donated for in Exhibit P1. The Respondents submitted that failure of the Appellant to join issues with the Respondents on the aforesaid facts ought to be deemed as acceptance. Thus the finding of the trial Court on the features, location and identity of the donated land remains impeccable. The decision in AIYEOLA V PEDRO [2014] 13 NWLR, PT 1424, 409 AT 461 was cited in support.
The Respondents further submitted that the Appellant failed to lead any credible evidence showing that the notice of revocation was served on the Respondents as prescribed by law neither was the Appellant able to lead any credible evidence showing compulsory acquisition and subsequent release of 20% of the land compulsorily acquired. They submitted that unless a notice of revocation is personally served or served as prescribed by law, the purported revocation is null and void. ONONUJU & ANOR V ATTORNEY GENERAL, ANAMBRA STATE & ORS [2009] 10 NWLR, PT 1148, 183 AT 211 was relied on.
The Respondents queried the rationale behind the revocation and compulsory acquisition of land in 2000 after alleging that Exhibit P1 vested title on Anambra State Government in perpetuity.
The Respondents submitted that estoppel by conduct and estoppel per rem judicata are inapplicable in this case because the Appellant neither pleaded the defence nor averred any facts that constitute estoppel. The following decisions were relied on CBN V ARIBO [2018] 4 NWLR, PT 1608, 130 AT 162 AND ALECHENU V UNIVERSITY OF JOS [2015] 1 NWLR, PT 1440, 333 AT 364. Assuming the defence of estoppel was pleaded, the Respondents argued that the conditions to establish it were not satisfied. The parties, subject matter, reliefs and issues determined in the previous case and the instant case are not the same. The Respondents urged this Court to strike out the issue of estoppel. The following cases were also relied on ILOEGBUNAM V OBIORA [2012] 4 NWLR, PT 1291, 405 AT 430 AND COLE V JIBUNOH [2016] 4 NWLR, PT 1503, 499 AT 439.
Concluding their argument on this issue, the Respondents submitted that the lower Court properly evaluated the evidence before it and rightly held that the purpose for which the land in dispute was donated has been abandoned by the Anambra State Government and that the land automatically reverted to the Respondents. UKWA & ORS V AWKA LOCAL COUNCIL & ORS [1965] ALL NLR 364 AT 368 and OBIKOYA & SONS LTD V GOVERNOR OF LAGOS.
Before delving into the main kernel of this issue let me first and foremost resolve the issue of estoppel by conduct and estoppel per rem judicata raised by the Appellant.
It is trite law that estoppel is a defence which must be specifically pleaded and particularised in the statement of defence. When successfully pleaded, it operates not only against the parties but also the Court itself and deprives it of its jurisdiction to entertain the same cause of action on the same issue previously determined between the same parties by a Court of competent jurisdiction.
However, there are several conditions which a party relying on the plea of estoppel per rem judicata must fulfil to entitle him to the fruit of the plea. These conditions have been well settled by decisions of this Court and the Supreme Court in a long list of reported and unreported decisions. The conditions are that the party relying on the plea must:
a. plead estoppel with relevant facts;
b. produce certified true copy of the previous judgment;
c. establish that the parties or their privies are the same;
d. establish that the Court that delivered the judgment in the previous case is competent;
e. establish that the judgment in the previous suit is final and subsisting;
f. establish that the subject matter of the previous suit is the same with the suit under consideration;
See OGBOLOSINGHA & ANOR V B.S.I.E.C. & 11 ORS [2015] 6 NWLR, PT 1455, 311.
A party relying on the plea of estoppel per rem judicata must fulfil all the conditions set out above to succeed. The plea of estoppel per rem judicata will fail if the party relying on it fails to establish any of the conditions set out above.
The effect of a successful plea of estoppel per rem judicata is that it strips the Court seized of the new suit of its jurisdiction to entertain it. See BOLAJI AKINKUNMI V RASAQ OLANREWAJU SADIQ [1997] 8 NWLR, 277 AT 288.
As it relates to estoppel by conduct, a party relying on it must plead same in his defence and it is not just enough to plead the actual conduct of the defendant which the plaintiff relies upon as constituting the representations made by the defendant to the plaintiff, the plaintiff is expected to further plead the acts of detriment of the plaintiff which the plaintiff did in reliance on the defendant’s representations. See BAFFA V ODILI [2001] 15 NWLR, PT 737, 709 AT 741–742.
In the instant case, not only did the Appellant fail to plead estoppel in its defence, the conditions for the application of estoppel were not satisfied. I therefore hold that the plea of estoppel by conduct and per rem judicata were not properly raised by the Appellant and thus inapplicable.
A resolution of this issue would turn on the interpretation of the Deed of Conveyance dated 29th September 1979 (Exhibit P1). Interestingly, the parties are ad idem that the purpose of the grant of the land in dispute was for “developing and managing and as/for Awka College of Education.” A holistic read of Exhibit P1 reveals that the purpose for the grant of the land in dispute was for the development of Awka College of Education simpliciter. This being the case, the vital question to ask is whether the land is being used as or for developing and managing the Awka College of Education or public purpose? There is evidence on record that the College of Education was relocated to Nsugbe. Part of the land earlier donated to the Government of Anambra State for the development and management of the Awka College of Education is now occupied by the Nnamdi Azikiwe University, Awka, some other parts are in use as temporary Government House. It is clear that the Respondents are not concerned with those parts of the land being used for temporary Government House and Nnamdi Azikiwe University; perhaps because these are perceived to be for public purpose.
However, the subject matter of this appeal is the part of the land being used for private and commercial purposes.
The law is trite that where a land is compulsorily acquired for public purpose, the land cannot be used other for any other purpose other than for public purpose. Where at any point in time the land is used for any purpose other than for public purpose the acquisition would fail and the land would automatically revert to the original owners. In OLATUNJI V MILITARY GOVERNOR OF OYO STATE [1995] 5 NWLR, PT 397, 586 AT 602, PARAS F-G, this Court followed the decisions in A.O. OSHO V FOREIGN FINANCE CORPORATION [1991] 4 NWLR, PT 184, 157; CHIEF A.O. LAWSON V CHIEF A A. AJIBULU [1991] 6 NWLR, PT 195, 44 AND CHIEF EREKU V THE MILITARY GOVERNOR, MID-WESTERN STATE OF NIGERIA [1974] 10 SC 59; (1974) 1 ALL NLR (PT.2) 163 and reiterated that:
“If a property is ostensibly acquired for public purpose and it is subsequently discovered that it has directly or indirectly been diverted to serve private need the acquisition can be vitiated. The acquiring authority cannot rob Peter to pay Paul by divesting one citizen of his interest in a property by vesting same in another: Dzungwe v. Gbishe (Supra). If the acquiring authority can no longer find a public purpose for the land so acquired the only avenue open to it is to deacquire it and let the same revert to the person in whom it was already vested. And in all cases where public purpose failed, the land reverted to original owner: Ajad & Another v. Sole Administrator for Ibadan City Council (1971) 1 NMLR 74.”
In the instant case, the lower Court was right when it found that the purpose of the said grant has failed partly.
This finding relates to the portion of the land now in use for private and commercial purposes. The lower Court was right to have closed its eyes to the clear and specific provisions of the Edict No. 1 of 1991. The Edict is not the primary instrument of acquisition of the land in dispute. The appropriate document is Exhibit P1.
Assuming Edict No. 1 of 1991 vested in the Government of Anambra State all assets of the then Awka College of Education, the Edict cannot detract from the primary purpose for which the land in dispute was donated to the government.
After hearing this appeal and embarking on the usual conference on this case, we thought it necessary to visit the locus in quo to ascertain the current state of the land in dispute. This visit took place on the 3rd of March, 2022. By this time too, the panel had changed necessitating the new panel to rehear the appeal. This rehearing took place on the 8th of March, 2022.
At the locus in quo, the Court found that the place has been massively developed into private residential and commercial properties. This situation presented us with a dire dilemma: do we follow the strict letters of the law or do we close our eyes to that and be persuaded only by the justice of the situation?
In resolving this dilemma, we are not oblivious to the guiding legal land law principle of “quic quid plantatur solo solo cedit”. This doctrine which is still good law today simply means that whosoever owns the land also owns what is on the land, attached to the land, fixed to the land or found on the land: NEPA V AMUSA & ANOR (1976) 12 SC (REPRINT), 65; IKYAAWAN V AJIVAH (1997) 4 NWLR, PT 499, 365 and ANYI & ORS V AKANDE & ORS (2017) LPELR-41973(CA).
This will be the normal legal effect of dismissing this appeal and affirming the decision of the lower Court. However, being alive to our responsibilities, we realise that this is one instance where we should shed our legal cap for our justice cap. Having visited the locus in quo and seen the level and nature of development on the land in dispute, we have no doubt in our minds as to the kind of monumental problems that will be the fall out of such a decision. It is also difficult to allow the order reverting the disputed land to the original owners because of the manifest untold hardships it would bring upon the innocent parties who have acquired titles to the land and committed huge funds in developing it. It is my firm belief therefore that the interest of justice would better be served if the order of the lower Court is substituted with an order to the Government of Anambra State to acquire an alternative land in the state and allocate same to the Respondents in place of the land in dispute.
On the Respondent’s Notice, the Respondents submitted that the lower Court granted their relief D as Relief B. He highlighted the problem in the relief granted to be the inclusion of the words “the undeveloped part of”. He therefore urged this Court to delete the words “the undeveloped part of.”
The Appellant on the other hand argued that the law is trite that where a respondent desires a reversal of the decision of the lower Court, he ought to file a cross-appeal and not a respondent’s notice. The Appellant urged the Court to hold that the Respondent’s Notice was incompetent and should be struck out. The decisions of the Supreme Court in ADEKEYE V AKIN-OLUGBADE [1987] LPELR-104 (SC) 19 and OGUMA ASSOCIATED COMPANIES NIG LTD V INTERNATIONAL BANK FOR WEST AFRICA LTD [1988] LPELR-2318 (SC) 44 – 45.
Contrary to the submission of the Appellant’s counsel, the Respondents do not seek a reversal of the decision of the lower Court but a correction of an error in the judgment of the lower Court. I find merit in the Respondent’s Notice and I accordingly delete the words “undeveloped part of” in relief B granted by the lower Court. However, in view of my earlier findings above, this may appear an academic but necessary exercise. Necessary in this instance because as the penultimate Court we are enjoined to determine all matters brought before us to give the parties adequate ammunition to go upstairs on appeal should they so desire.
Issue No. 3
“Whether the award of damages made against the Appellant by the learned trial Court is correct.”
The Appellant submitted that from the judgment of the lower Court there was neither an indication nor a legal justification for the award of N25,000,000 to the Respondents against the Appellant for alleged trespass and continuing trespass and the sum of N500,000.00 as costs. He submitted that this Court is empowered to set aside an award of damages and costs where the award is based on erroneous and perverse findings by the lower Court. He relied on the decisions in MAXIMUM INSURANCE COMPANY LTD V S.A. AWONIYI [1994] 3 NWLR, PT 331, 178 AT 195–196 AND UBN PLC V AJABULE [2011] 18 NWLR, PT 1278 152 AT 181.
In response, the Respondents submitted that general damages are damages which the law presumes to flow naturally from the wrong complained of and need not be proved specifically. He argued that the lower Court was imbued with discretionary power to decide on the appropriate general damages it should award in favour of a successful party. He argued that the lower Court took into account the fact that the trespass has lasted over 41 years and still continuing in arriving at the sum of N25,000,000 as general damages. He concluded that the award of general damages was not in any way perverse and thus should not be disturbed by this Court.
It is clear from the judgment of the lower Court that the Court awarded the sum of N25,000,000.00 as general damages and N500,000.00 as costs against the Appellant. It is trite law that an appellate Court does not make a practice of interfering with an award of damages, unless it is shown that the award was based on a wrong principle of law, or that the amount awarded is too high or too low or that the award was arbitrary or there has been a wrong exercise of discretion in the making the award. See ONWU V NKA [1996] 7 NWLR, PT 458, 1 AT 19 & 27.
The law is that in an action for trespass, the plaintiff is entitled to a nominal or minimal amount as general damages for the act of trespass. See OKEFI V OGU [1996] 2 NWLR, PT 432, 603 AT 616 AND IKYAAWAN V AJIVAH [SUPRA] AT 382. It is equally settled that it is not enough for the Court to simply award damages in an action for trespass to land without giving any reason as to how it arrived at what amounted to reasonable damages. See ONWU V NKA [SUPRA] AT 20, OZURUOKE V OKOLIE [2000] 1 NWLR, PT 642, 569 AT 579.
In the instant case, the Respondents were no doubt entitled to a nominal amount as general damages following the finding of the lower Court that the Appellant trespassed upon the Respondents’ land. In the circumstances, the lower Court was duty bound to give reasons as to how it arrived at the amount awarded as general damages for trespass.
Be that as it may, for the same reasons that we are not able to affirm the judgment of the lower Court in respect of the relief for an order reverting the land to the respondents, we feel that the interest of justice is also to bury all consequential orders of the lower Court as to damages and costs in the instant case. We will therefore refrain from interfering with the award of damages and costs as required by law. Consequently, the award of general damages and costs made in favour of the Respondents by the lower Court is also hereby set aside.
In sum, this appeal fails. The judgment of the lower Court is hereby accordingly substituted with an order that the Government of Anambra State acquires an alternative land in the state and allocate same to the Respondents in place of the land in dispute. In view of the protracted nature of this case and to create and foster an enabling environment for peace, order and good governance to reign, the State Government is enjoined to comply with this order of Court within a reasonable time.
I make no other as to costs in this case.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I read in draft, the leading judgment of my learned brother, P. A. MAHMOUD, J. C. A. just delivered.
I agree entirely with the reasoning and conclusion reached. I agree that the appeal is unmeritorious and is accordingly dismissed by me.
I endorse the order as to costs made by MAHMOUD, JCA in the leading judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA and I am in agreement with the reasoning and conclusions reached in dismissing the appeal as unmeritorious. I abide by the consequential orders made thereto.
Appearances:
MR. REGINALD UZOECHI. For Appellant(s)
MR. A. C. ANAENUGWU, SAN, with him, MR. E. C. OKAFOR. For Respondent(s)