A.G. BENDEL STATE & ORS. V. AIDEYAN

• Pages: 276-298

276

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NIGERIAN SUPREME COURT CASES

[1989] 3 N.S.C.C.

A.G. BENDEL STATE & ORS. V. AIDEYAN

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5

A.G. BENDEL STATE & ORS.

V

AIYEDAN

SUPREME COURT OF NIGERIA

ESO,



J.S.C.

KARI BI-WHYTE,



J.S.C.

BELGORE,

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J.S.C.

NNAEMEKA-AGU, J.S.C.

WALT,

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J.S.C.

29th September, 1989

APPELLANT

RESPONDENT

SUIT NO. SC 131/1986

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Land Law - Compulsory Acquisition of State Land - Sections 17 & 24 Public Lands

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Acquisition Act - Method and purpose of acquisition - Trespass to land - Mesne Profit

- Difference.

Civil Procedure - Jurisdiction - Compulsory Acquisition of land - High Court of a State -

Lands Tribunal - Scope of - Claims not raised in the Writ of

.511111171012S -

Effect.

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Words and Phrases - "Land Acquisition"- Meaning of - Section 2 Public LandAcquisition

Law (Cap. 136) Laws of Bendel State 1976.

ISSUES:

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1.

Whether in an appeal argument should be based on the issues for determination

or on the grounds of appeal.

2.

Where a ground of appeal filed is not covered by the issues for determination

framed, what option is opened to the appellate court?

3.

Which court has jurisdiction to entertain an action involving compulsory 35

acquisition of State Land?

4.

For what purpose can a State Land be compulsorily acquired?

5.

What are the necessary conditions which have to be fulfilled before land can be

acquired under the Public Lands Acquisition Act?

6.

Whether a claim not made in the writ of summons can be raised in the statement 40

of claim.

7.

What is the difference between trespass to land and Mesne Profit?

8.

Where a trial judge in his judgment struck out a particular head of claim, should

a respondent who wants that claim restored cross-appeal.

FACTS:

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The plaintiff, Mr. Aideyan had bought a piece of land from a government lessee

called Mr. Ogbemudia Asemota, who with all necessary consents, assigned it to the

plaintiff in 1975. The plaintiff then erected a four-storey building on the plot.

In 1976, the Bendel State government purported to acquire the building for a

public purpose and a notice was published to that effect in the Bendel State Gazette. 50

Despite protests by the plaintiff against the acquisition the defendants held on to

the property. The plaintiff then filed a writ of summons claiming

inter alia

that the

acquisition of the said land was unconstitutional, illegal, null, void and of no effect.

A.G. BENDEL STATE & ORS. V. AIDEYAN

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At the hearing, the learned trial judge held

inter alba

that the property was not

compulsorily acquired as required by law, and that the purported acquisition is a

nullity and awarded mesne profits to the plaintiff calculated from the date of the

purported acquisition.

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The defendants dissatisfied appealed to the Court of Appeal, Benin Division,

against the award of mesne profit to the plaintiff/respondent.

The Court of Appeal awarded the same sum earlier awarded to the plain-

tiff/respondent by the trial court but designated this amount as damages for trespass

instead of mesne profits.

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The appellant still dissatisfied appealed to the Supreme Court contending

inter

alia

that after the trial judge had struck out the claim for special and general damages,

the Court of Appeal could not proceed to assess the damage on the basis of what

the trial judge held to be mesne profits but which was only claimed in the statement

of claim and not in the writ of summons.

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HELD:

1. Once issues for determination have been framed from the grounds of appeal filed,

argument should be based not on the grounds of appeal but on issues for

determination. In this case the appellant counsel after framing issues, based her

arguments in her brief on the grounds of appeal

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2. In brief writing issues for determination should comprehend and supercede the

grounds of appeal. Where, as happened in this case, a ground of appeal filed is

not covered or taken into account by the issues for determination, as framed, the

appellate court may take the view that such a ground has been abandoned.

3.

Jurisdiction conferred by Section 13 of the Public Lands Acquisition Act No. 33

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of 1976 is confined to determination of issues of ownership and quantum of

compensation to be paid to such owners as the tribunal may ascertain. It has no

jurisdiction to decide a case in which the gist of the action is that the land in

question is not capable of being acquired at all. This claims are properly for

determination by the regular courts of unlimited jurisdiction. In this case the High

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Court of Bendel State.

4.

Section 24 of the Public Lands Acquisition Act (CAp. 136) Laws of Bendel State

1976 specify four different purposes which will necessitate the acquisition of

leases of state land. The land in question in this case is only one plot and the

published object of the acquisition which is for office blocks is different from those

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specified in section 24. Apart from the provisions of ss.17 and 24 of the State

Land (Cap. 156) Lease of State Land or any estate or interest cannot be acquired

by any other means.

5.

The provisions of ss. 5 and 9 of the Bendel State Public Lands Acquisition Law

insists upon actual notice of intention to acquire been given to the party

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concerned. In this case there was no personal service of notice of intention to

acquire respondent property before the notice was published in the gazette and

newspapers. There was therefore non-compliance with the provisions of ss.5

and 9 of the Bendel State Public Lands Acquisition Law, which renders the

purported acquisition a nullity.

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6. That it is trite law that subject to the limitation that a plaintiff will not be permitted

to set up a completely different suit or claim in his statement of claim, the

statement of claim supercedes the writ.

7. Every unlawful and unauthorised entry to land in the possession of another is

actionable trespass for which damages should be awarded. Such damages are

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awarded as monetary compensation for the legal injury which a defendant has

committed to the property of

the plaintiff. On the other hand mesne profit is

a

special type of monetary compensatory award i.e. damages which a land owner

may recover for his being forced out of or deprived of possession of his land.

Mesne profit is a specie of damages for trespass.