ALHAJI (CHIEF) S.D. AKERE & ORS V. THE GOVERNOR OF OYO STATE & ORS(2002)

ALHAJI (CHIEF) S.D. AKERE & ORS V. THE GOVERNOR OF OYO STATE & ORS

(2002)LCN/1126(CA)

In The Court of Appeal of Nigeria

On Thursday, the 11th day of April, 2002

CA/I/162/96

 

JUSTICES

SUNDAY AKINOLA AKINTAN   Justice of The Court of Appeal of Nigeria

MORONKEJI OMOTAYO ONALAJA   Justice of The Court of Appeal of Nigeria

FRANCIS FEDODE TABAI   Justice of The Court of Appeal of Nigeria

Between

 

  1. ALHAJI (CHIEF) S.D. AKERE
    2. ALHAJI KARIMU OLAPADE AKERE
    3. MRS. FUNKE LAOSUN
    4. MR. DEJO GBENRO
    5. ALHAJI M. O. OLAGUNJU
    6. MR. RAIMI ALAMU
    7. MR. OLADEJO AJANI
    8. ALHAJI RAJI OLASUPO
    9. MR. KARIMU AGBERI AGUNLOFI
    10. MR. KARIMU BAOLADALE
    11. ALHAJI RAMONI AMOHAN OYATERU
    12. TIJANI ABIOSE
    13. MR. MUDASIRU ALAO
    14. CHIEF A. A. AKINYEMI
    (For themselves and on behalf of Association of Landowners whose land was acquired along Araromi Akufo in 1963) Appellant(s)

AND

  1. THE GOVERNOR OF OYO STATE
    2. THE ATTORNEY-GENERAL OF OYO STATE
    3. COMMISSIONER FOR LANDS, HOUSING AND PHYSICAL PLANNING
    4. COMMISSIONER FOR AGRICULTURE AND NATURAL RESOURCES Respondent(s)

 

  1. A. AKINTAN, J.C.A. (Delivering the leading Judgment): The dispute that led to the institution of this case at Ibadan High Court in Oyo State as Suit No. M/367/92 arose over payment due to the plaintiffs, who are now appellants, for compensation due to them in respect of their parcels of land acquired by the government. The parcels of land were acquired in 1963 by the old Western Region Government for the purpose of establishing a farm settlement at Araromi-Akufo in Ibadan. The acquisition notice was published in the Western Region Gazette No.9 Volume 12 of 7th February 1963. It was given Western Nigeria Notice No. 206 of 1963. The plaintiffs filed their claims for compensation shortly after the publication in the Gazette.
    About three years after the acquisition, the government paid compensation due in respect of crops found on the land. But compensations due in respect of buildings and land were left unpaid. The government then promised to pay them later. The promise was, however, not honoured until the old Western Region was broken into states and the present Oyo State Government inherited the liability to pay the outstanding compensation due on the acquisition. However, between 1984 and 1987, compensations in respect of buildings were paid, thereby leaving unpaid compensation due in respect of the land.
    This was the situation when the appellants as plaintiffs, instituted the present action by originating summons on 25th November 1992. Their claim before the court was as follows:
    “1. Whether the plaintiffs are entitled to be paid compensation including interest for delayed payment for their land compulsorily acquired in 1963 along Araromi-Akufo road, Ibadan.
    If the answer to the above question is in the affirmative, then the plaintiffs claim:
    (i) Declaration that under and by virtue of the provisions of section 31 of the Constitution of the Federation 1963, the plaintiffs are entitled to be paid compensation for their land situate along Araromi-Akufo road, Ibadan compulsorily acquired by the defendants in or about 7th February 1963.
    (ii) Declaration that by the provisions of the Public Land Acquisition (Miscellaneous Provisions) Act 1976 No. 33, the plaintiffs are entitled to be paid interest at bank rate on the said compensation.
    (iii) An order directing the defendants to pay the plaintiffs the sum of N21, 222,348.25 representing principal and interest due to the plaintiffs as compensation.
    (iv) Interest at the rate of 21% per annum on the sum of N21, 222,348.25 from 1st January 1992 until the whole amount is paid.”
    The claim went for trial before Adekola, J. as he then was, and the learned judge delivered his reserved judgment in the case on 20/3/96. He held, inter alia, as follows in the concluding portion of his said judgment:
    “In the circumstance, I hereby declare that the plaintiffs are only entitled to the payment of the sum of N1,233,960 as compensation in respect of 822.64 hectares of land acquired by the defendants in 1963 and that the said amount shall not attract any interest whatsoever.
    I cannot, however, grant the other order for declaration that the plaintiffs are entitled to be granted interest at the bank rate on the compensation due because the provisions of the granting of interest on compensation due will not cover land acquired from original land owners. And even if applicable, the maximum interest payable would have been limited to ten years after the time of purchase up to the time of the notice of acquisition. In the circumstance, that leg of the plaintiffs’ claim fails and it is hereby dismissed.
    I hereby direct the payment of the sum of N1, 233,960 to the plaintiffs as the amount due as compensation to the plaintiffs in respect of the 822.64 hectares of land acquired from them by the defendants… The defendants are to pay N1, 500 costs to the plaintiffs.”
    The plaintiffs were dissatisfied with the verdict and they appealed against it to this court. Seven grounds of appeal were filed and the parties filed their respective brief of argument in this court. The appellants formulated the following three issues as arising for determination in the appeal:
    “(i) Whether the learned trial judge was right in his consideration and application of sections 4, 5, 6 and 8 and Schedule of the Public Lands Acquisition Act and Legal Notice No. OYSLN No. 13 of 1978 to this case.
    (ii) Whether where an issue had been settled by the interlocutory decision of the lower court, it was open to the learned trial judge to reverse such decision in his final judgment.
    (iii) Whether on the evidence before the lower court the decision of the lower court was right.”
    The respondents also formulated three issues as arising for determination in the appeal. The three issues are as follows:
    “(a) Whether by virtue of the provisions of the Public Lands Acquisition (Miscellaneous Provisions) Decree No. 33 of 1976, the trial court has jurisdiction to entertain the claim of the plaintiffs.
    (b) Whether the learned trial judge was right in his finding that the appellants were entitled to N1, 233,960 only as compensation.
    (c) Whether the learned trial judge was right in his finding that the appellants were not entitled to interest on the sum of N1, 233,960 which he found was the compensation payable to the appellants.”
    The second and third issues formulated by the respondents are covered by those formulated by the appellants. The first respondents’ issue, however, raises a novel point and this has prompted the appellants to file a reply brief in which the new point raised in that issue was discussed. The case of each of the parties, as canvassed in their respective brief will now be considered.
    The main grievance of the appellants, as canvassed in issue 1 of their brief, centred around the criteria used by the learned trial judge in arriving at his decision in the matter. It is submitted in this respect that his decision that since the appellants did not acquire the land which formed the subject-matter of the claim by way of purchase and as the land had not been mainly developed for residential purposes, the appellants would not be entitled to interest but to only the existing use value of the land. That view is said to be totally erroneous in that it is not in accordance with the provisions of the applicable laws. Similarly, the principle adopted by the learned trial judge in arriving at the amount of compensation he awarded is also said to be erroneous and not in accordance with the applicable laws.
    The fact that the learned trial judge based his calculation on N1, 500 per hectare as specified in Schedule 1 to the Public Lands Acquisition (Miscellaneous Provisions) Act 1976 for other urban and semi-urban centres instead of N3,750 per hectare is said to be wrong. His reason for arriving at that conclusion was that the land was not within 12 kilometre radius from Mapo Hall. This is said to be erroneous because that stand cannot be justified having regard to the provisions of sections 4, 5 and 6 of the said Public Lands Acquisition Act 1976. It is submitted that the learned Judge read the provisions of each of the said section in isolation. Had he read them together he would have come to the right conclusion.
    It is further argued that sections 7 and 8 of the Act relate to state land and as such the learned judge was wrong to have used the provisions of the two sections of the Act in the instant case which was not state land. It is argued, therefore, that the Chief Lands Officer could only compute compensation in respect of state land. It is also submitted that since no evidence was led to show that the land in question in this case was outside 12 kilometres radius of Mapo Hall, it was wrong of the learned trial judge to speculate that the land was in fact outside the 12 kilometres range.
    The provisions in the Oyo State Legal Notice OYSLN No. 13 of 1978 made for the purpose of the Land Use Act 1978 and by which it is declared that 12 kilometres radius of Mapo Hall was declared as urban area, could not be made to have retrospective effect and be made applicable to the Public Lands Acquisition Act 1976 which was earlier in time than the Land Use Act. The learned judge is therefore said to be in error when he used the rate of N1,500 per hectare prescribed in, the Legal Notice. Rather, the court should have accepted the copious evidence led relating to the practice adopted by the respondents in computing compensation payable in respect of land acquisitions made in the past which is N3,750 per hectare and not N1,500 per hectare. It is also submitted that section 6 of the Act provides for payment of interest on delayed compensation and as such it was wrong of the learned trial Judge to refuse that claim.
    The point raised in the appellants’ Issue 2 is in connection with a portion of an interlocutory ruling made by the court earlier in the course of the hearing. The ruling was made on a preliminary objection raised that the action was statute barred. In reply to the affidavit filed by the applicants in the case, the respondents (now appellants) deposed to a counter-affidavit and among the exhibits attached to the counter-affidavit was a letter (Exh. E) purported to have been written to the applicants by the Commissioner for Lands, Housing and Physical Planning as a reply to the Ministry of Agriculture and Natural Resources which inquired as to how much was due on the land compensation. The said commissioner for Lands, Housing and Physical Planning had given the amount payable as compensation on the land acquired as N21, 221,348.25. The learned Judge, after taking submissions from Counsel in the matter, over-ruled the preliminary objection and held that the claim was not statute barred because there was satisfactory evidence of acknowledgment of the claim by the defendants. The appellants now contend that the learned trial Judge was wrong in not accepting the sum of N21, 222,348.25 mentioned in the document (Exh. E) as the amount due to the appellants. It is argued that the learned Judge was wrong when he failed to adopt the figure as having been proved and that his rejection was unacceptable in law since the court could not over-rule itself on the matter.
    The point raised in the appellants’ issue 3 is the rejection of the sum of N21, 222,348.25 recommended as the compensation payable by the Commissioner for Lands, Housing & Physical Planning and given in evidence at the trial by PW1 and PW2. It is argued that the rejection of the figure was uncalled for as the respondents did not controvert that evidence. This court is therefore urged to set aside the order of the court rejecting the figure and enter judgment for the appellants in the sum of N21, 222,348.25 as the amount of compensation payable to the appellants.
    The gravamen of the respondents’ case as canvassed in their issue 1 is that the trial court had no jurisdiction to entertain the claim. It is therefore submitted that the entire proceeding was a nullity since it was embarked upon without jurisdiction. Reference is made to the provisions of section 3 of the Public Lands Acquisition (Miscellaneous Provisions) Act 1976 which provides, inter alia, that any dispute which arose from the determination of the amount of money to be paid as compensation shall be referred by any party to the dispute for adjudication by a Lands Tribunal Established under section 12 of the same Act. It is argued that since the dispute in the instant case was in respect of the quantum of the compensation payable to the appellants, such could only be determined not by the High Court but by the Lands Tribunal. The decision of the lower court in the matter is therefore said to be a nullity as the court’s jurisdiction was ousted by the said provision.
    The appellants’ reaction to the above submission is contained in the appellants’ reply brief. It is submitted that the objection to jurisdiction now raised by the respondents should not be entertained because the respondents had no appeal or cross-appeal pending before this court on that issue. It is therefore argued that since it is settled law that a respondent is confined to reply only to the appellants’ grounds of appeal, and as the point now raised is not covered by any of the grounds of appeal filed by the appellants, the submission could not be entertained and as such it should be struck out.
    The law is settled that jurisdiction is the very basis on which any court or tribunal derives its authority to try a case. It is the lifeline of all trials. A trial therefore without jurisdiction is a total nullity: see PETROJESSICA ENTERPRISES LTD. & ANOR. V. LEVENTIS TECHNICAL CO. LTD. (1992) 5 NWLR (Pt. 244) 675 at 693. In view of the importance attached to the issue of jurisdiction, the law relating to how and when the issue could be raised is very relaxed. The position of the law, therefore, is that the issue of jurisdiction can be raised viva voce; it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal or to the Supreme Court. It can be raised once it is apparent to any party that the court may not have jurisdiction; a fortiori the court can even raise it suo motu. See OSADEBAY V. ATT. GEN. BENDEL STATE (1991) 1 NWLR (Pt. 169) 525; OWONIBOYS TECHNICAL SERVICES LTD. V. JOHN HOLT LTD. (1991) 6 NWLR (Pt. 199) 550; OKESUJI V. LAWAL (1991) 1 NWLR (Pt. 170) 661; KATTO V. CENTRAL BANK OF NIGERIA (1991) 9 NWLR (Pt. 214) 126; UTIH V. ONOYIVWE (1991) 1 NWLR (Pt. 166) 166; and PETROJESSICA ENTERPRISES LTD & ANOR. V. LEVENTIS TECHNICAL LTD. supra, 675 at 693 & 696.
    The issue of jurisdiction was raised for the first time by the respondents in this court in the instant case. The mode adopted by the respondents was by raising it as a preliminary issue in the respondents’ brief and thereafter proceeded to proffer argument extensively in support of the contention that the lower court had no jurisdiction to entertain the claim. As already shown above, the issue could be raised at any stage and no specified form is prescribed for raising the issue. It follows therefore that there is nothing wrong with the method or form adopted by the respondents in raising the issue of jurisdiction of the court.
    It is, however, mandatory that once the issue of jurisdiction is raised, the other party must be heard on the point before the court takes a decision on the matter. Thus in the present case, the appellants set out their reaction to the issue in their reply brief. They canvassed therein that the respondents were only allowed to confine their argument to points raised in the appellants’ grounds of appeal since they did not file any ground of appeal in which the issue of jurisdiction is raised. They relied on the decisions in ERISI V. IDIKA (1988) 2 NWLR (Pt. 78) NWLR (Pt. 248); and ONIA V. ONYIA (1989) 1 NWLR (Pt. 99) 514 in support of the submission. There is no doubt that the respondents’ contention is totally erroneous in that the points raised in each of the afore-mentioned cases had anything to do with the issue of jurisdiction. The principles decided in the cases therefore are totally not applicable to the instant case. As already stated above, no specified form is prescribed by law for raising the issue of jurisdiction. It follows therefore that there is nothing wrong with the way the respondents adopted in raising the issue in the instant case. The issue was therefore properly raised.
    The next question is whether there is in fact merit in the issue. As already stated above, one of the reasons why the issue of jurisdiction can be raised is once it is apparent to any party that the court may not have jurisdiction to adjudicate over the claim before it. The respondents in the instant case are relying on the provisions of section 3 of the Public Lands Acquisition (Miscellaneous Provisions) Act 1976 in support of the contention that the lower court lacked jurisdiction to adjudicate over the claim before the court.
    The said section 3 of the Act reads as follows:-
    “Any claim in respect of compensation payable by virtue of the Public Lands Acquisition Act or the State Lands Act or any other enactment or law shall be determined in accordance with the provisions of this Decree, and any dispute arising from such claim shall be referrable by any party to the dispute for adjudication by a lands tribunal established under section 12 below.”
    Land tribunals are created in section 12(1) of the Act. Every such tribunal is, under section 12(2) of the Act, to consist of a Judge of the High Court or of the Federal High Court “who shall be assisted by two assessors each of whom shall possess qualifications approved for appointment to the public service of the Federation or of a state, as the case may be, as estate surveyor or land officer and shall have been so qualified for not less than 5 years…”
    The land tribunal is conferred with specified exclusive jurisdiction in section 18(1) of the same Act. Section 18(1) of the Act provides as follows:-
    “18-(1) As from the commencement of this Decree and notwithstanding anything to the contrary in any law, the High Court of a State or any other court having original jurisdiction in land matters shall not have jurisdiction to hear or determine…
    (a) any question relating to or connected with the ownership, whether beneficial or otherwise, of any land to be compulsorily acquired by the Government for the public purposes of the Federation or of a State; and
    (b) any question relating to or concerning any such land including the amount of compensation payable in respect of such acquisition and the persons entitled to such compensation,
    and no action whatsoever shall be brought in any such court in respect of any such question, and if such action is pending in any such court or on appeal in any other court the action shall abate…”
    It is crystal clear from the above provisions of section 18(1) of the Public Lands Acquisition (Miscellaneous Provisions) Act 1976 that the jurisdiction of the Oyo State High Court is expressly and unequivocally ousted in matters relating to claims for the amount of compensation payable in respect of the land acquired by the government from the appellants. Jurisdictions in respect of such claims are exclusively conferred on the land tribunals.
    Although the acquisition in the instant case took place in 1963, that is, long before the Public Land Acquisition (Miscellaneous Provisions) Act 1976 came into force on 1st July 1976 according to section 23(1) of the said Act, its provisions are however made applicable to all cases of outstanding compensations in respect of acquisitions made before the Act came into force. Section 1 of the Act which sets out the provisions reads as follows:-
    “1.-(1) Compensation payable in respect of land compulsorily acquired under the Public Lands Acquisition Act, the State Lands Act or any other enactment or law permitting the acquisition of land compulsorily for the public purposes of the Federation or of a State shall be assessed and computed in accordance with the provisions of this Decree, notwithstanding anything to the contrary in the Constitution of the Federation or in any other enactment or law or rule of law.
    (2) Without prejudice to subsection (1) of this section, where before the commencement of this Decree any land has been compulsorily acquired by the Government or notice for the acquisition of any land has been given in accordance with the provisions of the Public Lands Acquisition Act, or any other applicable law and compensation in respect of such acquisition has not been paid, the compensation payable shall be determined in accordance with the provisions of this Decree, notwithstanding anything to the contrary in the Constitution of the Federation or in any other enactment or law or rule of law.”
    As it has been clearly shown that the Oyo State High Court that adjudicated over the appellants’ claim lacked jurisdiction to entertain the action, the entire proceedings before the court is therefore a nullity. Be that as it may, it is still necessary to consider the appellants’ case on its merit, in the event of the views I expressed above is erroneous. The crux of the appellants’ case is:
    (i) that the lower court failed to award interest on the amount awarded;
    (ii) the learned trial Judge ought to have accepted the evidence led to the effect that the rate payable should be N3,750 per hectare instead of the N1,500 per hectare used by the learned Judge; and
    (iii) that the learned trial Judge was in error by refusing to award less than the N21,222,348.25 mentioned in the document filed as Exh. E along with the interlocutory motion for the case to be dismissed as being statute barred.
    As already shown above, the provisions of the Public Lands Acquisition (Miscellaneous Provisions) Act 1976 are applicable to the claim even though the acquisition took place long before the Act came into existence. This is as a result of the provisions of section 1(2) of the Act.
    The rates of compensation payable in respect of land acquisitions are set out in Schedule 1 of the Act.
    The rates provided in the Schedule 1 are as follows:
    “1. A- Metropolitan Lagos (i.e. the former Federal Territory)
    B-(i) Lagos State, other than Metropolitan Lagos… N7, 500 per hectare
    (ii) State Capitals
    (iii) Industrial and commercial urban centres N3, 750
    C- Other urban and semi-urban centres N1, 500
    D- All other areas N1, 250
    2. Cases not included in ! A-D … Compensation shall be in accordance with the local custom and Land Tenure Law applicable to the State.”
    The evidence led at the trial was that the land was acquired for the purpose of establishing a farm settlement.
    The area declared as urban area by the Oyo State Government, in accordance with the requirement of the Land Use Act 1978 and published as O.Y.S. Legal Notice No. 13 of 1978 is a radius of 12 kilometres of Mapo Hall and some specifically named areas. It was shown that a small portion of the land acquired in the instant case fell within 12 kilometres radius of Mapo Hall. But the learned a trial judge held that since the appellants failed to lead evidence as to the acreage of the portion of the land in question that fell within the 12 kilometre radius of Mapo Hall and what percentage fell outside the 12 kilometre radius, it was impossible for him to apportion how much of the acquired land should be given the value ascribed to state capital and fully urban area out of the entire acquired land. He therefore based his award on the N1, 500 ascribed to other urban and semi-urban centres. I believe that the learned Judge was quite right in this respect since the onus was on the appellants to prove their claim. Similarly, the learned trial Judge was also right in rejecting the suggestion that he should have accepted the evidence led in support of the amount paid for compensations in respect of other acquisitions made in the State. This is because the learned Judge was bound to follow the specific provisions of the Public Lands Acquisition (Miscellaneous Provisions Act) 1976 in the case before him.
    The learned trial judge’s refusal to accept the sum of N21, 222,348.25 mentioned in the document (Exh. E) Attached to the interlocutory motion in which the court was urged to dismiss the claim for being statute barred as the amount payable as compensation is also very clear from the facts of the case. The issue before the court then was whether the plaintiffs’ claim was statute barred or not. It was clear to the learned judge who took the application that there was sufficient acknowledgement of the plaintiffs’ claim. Based on that finding of fact, he dismissed the application that the claim was statute barred. The parties had not joined issues on the amount of compensation payable at that stage. The learned trial judge also gave reasons why the figure could not be taken as the amount of compensation payable to the appellants. The reasons are that the writer of the document, Exh. E, was one of the claimants and the principle followed in arriving at that figure was in conflict with those laid down by the governing law already set out above. The rejection of that sum is therefore very proper. Finally the failure of the learned trial judge to award interest on the compensation payable was also raised by the appellants. Again, the learned trial judge applied the provisions of section 4(2) of the Act. It is provided in the sub-section that:
    “Where the land is an undeveloped land compensation payable shall be limited to the actual cost of the land together with interest at the bank rate calculated from the date of the purchase of the land up to the date of the notice to acquire the land, subject to a maximum of ten years, or the existing use value of the land, whichever is the greater…”
    The learned trial judge rightly, in my view, held that interest is only payable in cases where it has been shown that the land was acquired by purchase. The appellants failed to lead any evidence showing that they acquired the land by purchase. The learned judge was therefore quite right in holding that they did not acquire the land by purchase.
    In the result, there is totally no merit in the entire appellants’ appeal and it deserves to be dismissed. But since I have held earlier above that the learned trial judge had no jurisdiction to entertain the claim, the order I will make is one; setting aside the judgment and orders made by the lower court. In their place I hereby make an order striking out the appellants’ claim. The claim is accordingly struck out. But I will make no order on costs.

    MORONKEJI OMOTAYO ONALAJA, J.C.A.: It has been gratifying and pleasant reading in draft the lead judgment of my noble LORD AKINTAN JCA on the long and outstanding case of the compulsory acquisition of landed property situate, lying and being at ARAROMI AKUFO area Ibadan Oyo State of Nigeria in 1963 by the then Western Region of Nigeria of which the present OYO STATE is its successor.
    The appeal is all about the quantum of compensation to which the Appellants are entitled as enshrined in Section 44 (i)(a)(b) 1999 CONSTITUTION as follows:
    “44(i) No moveable property of any interest in an immovable property shall be taken possession of compulsorily and no right over ‘or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that among other things –
    (a) requires the prompt payment of compensation therefore and
    (b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or Tribunal or body having jurisdiction in that part of Nigeria.”
    On the introduction of the LAND USE ACT the laws governing compulsory acquisition of land were PUBLIC LANDS ACQUISITION ACT Cap 167 “Laws of the Federation of Nigeria and Public LANDS ACQUISITION LAWS of the various states of the Federal Republic of Nigeria. In order to meet standard payment and uniform compensation for land compulsorily acquired throughout Nigeria DECREE 33 PUBLIC LANDS ACQUISITION (MISCELLANEOUS PROVISIONS) 1976 was promulgated and is an existing law by virtue and under sections 315 and 318, 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA CHIEF R.O.NKWOCHA V. GOVERNOR OF ANAMBRA STATE 1984 6SC 362 419, 1984 1 SCNLR 634.
    In its NATIONAL 3RD WORKSHOP on the LAND USE ACT the Department of PRIVATE AND PROPERTY LAW, FACULTY OF LAW UNIVERSITY OF LAGOS in the seminar had the topic of the COURTS AND THE PROBLEM OF COMPENSATION FOR LAND RIGHTS was chronicled at pages 24 to 41 of COMMENTARIES FROM THE BENCH I by ONALAJA J. (as he then was) is apposite in this appeal which raised the issue of jurisdiction and quantum of compensation as critically and analytically considered in the lead judgment. As Respondents raised the issue of competence and jurisdiction of the High Court or the LANDS TRIBUNAL under Decree 33 of 1976 supra which engaged the consideration in the lead judgment was also considered in “THE COURTS AND THE PROBLEMS OF COMPENSATION FOR LAND RIGHTS” supra.
    As the issue of jurisdiction was raised for the first time as it is trite law that as the issue of jurisdiction is fundamental and bedrock of adjudication it can be raised at any stage of the proceedings even for the first time on appeal in the COURT OF APPEAL or the SUPREME COURT MADUKOLU & ORS V. NKEMDILIM 1962 1 ALL NLR 587 1962 2 SCNLR 431. ATTORNEY GENERAL OF LAGOS STATE V. THE HON JUSTICE L.J. DOSUNMU 1989 3 NWLR pt. 111 page 552. BRONIK MOTORS LTD. & ANOR. V. WEMA BANK LTD. 1983 6.SC 158, 1983 1 SCNLR 296 at 301, SHELL PETROLEUM DEVELOPMENT CO. NIG. LTD. V. ABEL ISAIAH & ORS. 2001 1 NWLR Pt.723 page 303, OREDOYIN V. AROWOLO 1989 pg.168 SC. 4 NWLR pt 114 page 172, NNUBIA V. A.G. RIVERS STATE 1999 3 NWLR pt593 page 52 CA. The guide for the court or tribunal in its approach to challenge to its jurisdiction was the erudite observation of OPUTA JSC in dealing with the jurisdiction of the Federal High Court in AFRICAN NEWSPAPERS OF NIGERIA & ORS. V. THE FEERAL REPUBLIC OF NIGERIA 1985 1 ALL NLR Part 1 page 150 at 171, 1985 4 SC pt 176-141 and at 122.
    This appeal as considered in the lead judgment raised the issue of whether the High Court or the LANDS TRIBUNAL has the jurisdiction to adjudicate on award of compensation for land compulsorily acquired. The issue came into focus in the ATTORNEY GENERAL OF BENDEL STATE & TWO OTHERS V. PLA AIDEYAN 1989 4 NWLR part 118 page 646 per NNAEMEKA AGU JSC held:-
    “4) The issue of jurisdiction is most fundamental and crucial. Therefore if a Court of trial has no jurisdiction to entertain a suit it cannot acquire the jurisdiction by acquiescence or submission Onyema V. Oputa 1987 3 NWLR pt 60 page 259.
    6) The jurisdiction of the Lands Tribunal is based on the presumption that there had been a valid act of acquisition leaving the live issues to the questions of the quantum of the compensation for the acquisition and the person or persons entitled thereto. It has not conferred general jurisdiction of dealing with all questions relating to acquisition of such lands which could have left it arguable whether or not dispute as to whether or not a particular land has been acquired by Government is within the jurisdiction of the tribunal.
    7) The Land Tribunal is therefore one of limited jurisdiction and when a court or tribunal is created is one of limited jurisdiction; it can only exercise judicial powers within the confines of the jurisdiction so conferred. BRONIK MOTORS LTD v. WEMA BANK LTD. 1983 1 SCNLR 396; MANDARA v. ATTORNEY GENERAL OF THE FEDERATION (1984) 4 SC 8.
    8) As the jurisdiction of the Land Tribunal by Section 13 of the Public Lands Acquisition Act No.33 of 1976 is confined to determination of issues of ownership and quantum to be paid to such owners as the tribunal may ascertain, it has no jurisdiction to decide a case such as this, in which the gist of the action is that the land in question is not capable of being acquired, the purported acquisition was null, void and of no effect.”
    The Supreme Court upheld the jurisdiction of the High Court as no valid notice of acquisition was served under the law on the respondent and thereby declared the acquisition null and void. Unlike in the instant appeal wherein there was valid and proper acquisition in law and the issue was as to how much compensation to be paid to the appellants. Applying A.G. BENDEL STATE & TWO ORS V. OLA AIDEYAN, supra it is the LANDS TRIBUNAL that has jurisdiction. The issue of jurisdiction must be raised in good faith and not mala fide LATIFU’SALAMI V. CHAIRMAN LEDB & THREE ORS. (All carrying on business under name and style of INLAND BUILDERS STORES)-1989 5 NWLR pt. 123 page 539 SC. It is the application of the above cases to the instant appeal that propelled me to agree with the reasoning and conclusion that Oyo High Court holden at IBADAN being a cause after valid compulsory acquisition of the landed property of the appellants and as to the quantum of compensation as to the amount to be awarded vests jurisdiction absolutely under SECTION 13 of Decree 33 of 1976 Public Lands Acquisition (Miscellaneous Provisions) in the LANDS TRIBUNAL created by Section 12 of Decree 33 of 1976 supra. As the High Court lacked jurisdiction the proper order was rightly made in the lead judgment by striking out the appeal BARRISTER ONYENUCHEYA V. MILITARY ADMINISTRATOR IMO STATE & ORS. 1997 1 NWLR pt 482 page 429 CA, BALOGUN V. PANALPINA WORLD TRANSPORT (NIG.) LTD. 1999 1 NWLR pt 585 page 66 CA.
    Apart from the remarks and comments made by me above, for the fuller reasons given in the lead judgment that this appeal is struck out for the reasons advanced above that the High Court lacked jurisdiction under SECTION 18 of Decree 33, 1976 being an existing law under Section 315, 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA is hereby struck out.
    I abide with the consequential orders made in the lead judgment especially the order of costs.

    FRANCIS FEDODE TABAI, J.C.A.: I read, in draft, the leading judgment prepared by my learned brother AKINTAN, J.C.A. and I agree with the reasoning and conclusions therein.
    The facts are very clearly set out in the leading judgment. One of the issues which determine the appeal is that of jurisdiction of the High Court of Oyo State. Section 3 of the Public Lands Acquisition (Miscellaneous Provisions) Act 1976 provides:
    “Any claim in respect of compensation payable by virtue of the Public Lands Acquisition Act or the State Lands Act or any other enactment or law shall be determined in accordance with the provisions of this Decree and any dispute arising from such claim shall be referrable by any party to the dispute for adjudication by a Lands Tribunal established under section 12 below.”
    And section 18(1) of the Act says –
    “As from the commencement of this Decree and notwithstanding anything to the contrary in any law, the High Court of a State or any other Court having original jurisdiction in land matters shall not have jurisdiction to hear or determine –
    (a) any question relating to or connected with the ownership whether beneficial or otherwise, of any land to be compulsorily acquired by the Government for the public purposes of the Federation or of a State; and
    (b) any question relating to or concerning any such land including the amount of compensation in respect of such acquisition and the persons entitled to such compensation; and
    (c) no action whatsoever shall be brought in any such court in respect of such question, and if such action is pending in any such court or an appeal in any other court the action shall abate.
    The question is the effect of these provisions on the unlimited jurisdiction of the High Court of Oyo State by virtue of sections 6 and 236(1) of the 1979 Constitution of the Federal Republic of Nigeria. Although sections 6 and 236 of the 1979 Constitution remained unsuspended they are under and for the purpose of the application of the Public Lands Acquisition (Miscellaneous Provisions) Decree 1976, effectively suspended. This is because by the clear provisions of section 1(1) and (2) of the Constitution (Suspension and Modification) Decree No. 1 of 1984, a Decree was superior to the unsuspended sections of the Constitution. See DOKUN AJAYI LABIYI V. ALHAJI M.M. ANRETIOLA & ORS. (1992) 8 NWLR (Part 258) 139 at 160 and ADAMOLEKUN V. THE COUNCIL OF THE UNIVERSITY OF IBADAN (1968) NMLR 253. See also The Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970.
    For the foregoing reasons I hold that by virtue of the provisions of the Public Lands Acquisition (Miscellaneous Provisions) Decree of 1976 the High Court of Oyo State had no jurisdiction to entertain the claim and the suit ought to have been struck out for the court’ slack of jurisdiction. For this and the fuller reasons contained in the leading judgment I also dismiss the appeal, I also make no order as to costs.

 

Appearances

Chief Akin Olujimi SAN (with J. Egwuasi Esq.)For Appellant

 

AND

  1. O. Ishola Esq., Director of Civil Litigation Oyo StateFor Respondent

 

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