IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 30TH DAY OF JANUARY 1976
CITY PROPERTY DEVELOPMENT LIMITED ................................................. PLAINTIFF/APPELLANT
1. ATTORNEY-GENERAL, LAGOS STATE
2. ONIKOYI CHIEFTAINCY FAMILY
3. ELEGUSHI FAMILY
4. OBA ONIBEJU FAMILY ............................................ DEFENDANTS/APPELLANTS/RESPONDENTS
BEFORE: Alexander C.J.N., Fatayi-Williams, Sowemimo, JJ.S.C.
Appeal from High Court of Lagos State: SC.29/1975; Suit No. LD/1117/72.
The plaintiffs claimed against the defendants declarations:-
(a) that developments being carried out, or proposed to be carried out, by the plaintiffs on their land at Victoria Island, Maroko and Ilado are developments within the Land (Provisions for Roads) Act(C.97) and that the authority for approving such developments is the Lagos Executive Development Board (LEDB);
(b) that the decisions contained in the Lagos State Ministry of Works' letters purporting to cancel approval for the developments already given are of no effect;
(c) that the defendants' purported decision to acquire the plaintiffs' said land and the notice of acquisition are invalid and of no effect in that the decision is ultra vires, capricious, mala fide and an abuse of power, particularly as the said notice of acquisition was not served on the plaintiffs;
(d) that the defendants interferred with the contractual relationships between the plaintiffs and others; and
(e) that as a result of the defendants' said acts, the plaintiffs suffered heavy financial loss. The plaintiffs also sought an injunction to restrain the Lagos State, their servants and/or agents from proceeding with the acquisition or taking steps to apply for a certificate of title.
The Attorney-General of Lagos State, sued as nominal defendant, was originally the only defendant. Later, 3 families were joined as 2nd to 4th defendants.
The trial Judge dismissed all the plaintiffs' claims but nevertheless found that the provisions of both the Lagos Town Planning Act (cap. 95) and the Land Development (Provisions for Roads) Act (cap. 97) applied to the proposed development; and also observed that a portion should be excised from the acquired land and given back to the plaintiffs.
The 1st defendant appealed; and the plaintiffs cross-appealed. (The 4th defendant's cross-appeal was later abandoned).
Since the plaintiffs failed to show that they had any title in the acquired land, they had no locus standi to sue.
Lawal v. G.B. Ollivant (Nig.) Ltd. (1972) 1 ALL N.L.R. (Part 1) 207
Ekpendu v. Erika (1959) 4 F.S.C. 79, 81
Akerele v. Atunrase (1969) 1 ALL N.L.R. 201, 208
Berdon v. Greenwood (1878) 3 Ex. D 251, 255
Hawkesley v. Bradshaw (1880) 5 Q.B.D. 302
Re Morgan 35 Ch.D.,496
(2) The trial Judge rightly found on the evidence that the acquisition was made in good faith and that it is valid.
Per Curiam: Having so found, the trial Judge erred in observing that a portion of the acquired land should be excised and given to the plaintiffs when that was not part of their claim.
(3) The trial Judge erred in stating-
(a) that both Cap.95 and Cap.97 applied: only cap.97 applied; and
(b) that the land vested in the Lagos State Government by the mere publication of the acquisition notice: title in such land vests in the Government only after it has successfully applied to the High Court for a certificate of title to the acquired land.
Atunrase & Ors. v. Federal Commissioner for Works & Housing (1975) 6 S.C. 1, 10.
(4) With regard to the plaintiffs' complaint against the award of a narrow strip of land to the 2nd defendant family, there is no basis for the award particularly as that family did not even file a survey plan of the land they were claiming.
(5) The award of the area known as Ikate to the 3rd defendant family is amply supported by the evidence accepted by the trial Judge, and is therefore sustained.
1st defendant's appeal allowed; cross-appeals of plaintiffs and 4th defendants dismissed.
S.O. Ilori, Ag. Deputy Solicitor-General Lagos State (Ariba with him) for the 1st defendant/appellant.
Chief Obafemi Awolowo (O. Ajayi, A. Sogbesan and O. Awoniyi with him) for plaintiffs/cross-appellants/respondents.
M.K. Gbajabiamila for 2nd defendants/respondents.
Bebo Akande for 3rd defendants/respondents
B.O. Benson for 4th defendants/cross-appellants.
Fatayi-Williams, J.S.C. (delivering the judgment of the Court)-The appeal and cross-appeals in this action are from the judgment of Adedipe, J. delivered in the High Court of Lagos State on 11th October, 1974. In the proceedings in the said High Court, the City Property Development Limited, as plaintiffs, claimed against the Attorney-General of Lagos State, as first defendant, a number of declarations in respect of 2,300 acres of land at Victoria Island, Maroko and Ilado. These 2,300 acres form part of a piece of land comprising about 3,100 acres with the government of Lagos State had compulsorily acquired by notice of acquisition dated 12th August, 1972.
The plaintiffs contended that the 2,300 acres are theirs and it is on that basis that they claimed the following declarations:-
"(1) That the development presently being carried out by the plaintiffs on their land at Victoria Island in the Lagos Division of the Lagos State of Nigeria and marked 'A' in the attached plan No. 1, and the proposed development of the plaintiffs' land at Maroko and Ilado as detailed in the said attached plan No. 1 are developments within the meaning of the Land Development (Provision for Roads) Act, Cap.97, and that the prescribed authority for approving the plaintiffs' proposed development was the Lagos Executive Development Board.
(2) That the decisions of the defendants as contained-
(i) in the letter of the Ministry of Works and Planning of the Lagos State Government (hereinafter called the Ministry) dated 24th April, 1972, purporting to cancel the approval and confirmation of the plaintiffs' proposed development as conveyed to the plaintiffs in the Ministry's letters dated 15th November, 1971, 25th March, 1972, and 13th April, 1972, and
(ii) in the Ministry's letter dated 7th September, 1972, are of no effect and invalid, and in no way effect the plaintiffs' rights pursuant
(a) to the approvals of the Lagos City Council and Lagos Executive Development Board as evidenced by their respective endorsements-namely, L.E.D.B. No. 8031 of 26th February, 1971 and L.C.C. No. 23020 of 10th December, 1971-on the plaintiffs' layout building plan,
(b) to the approval previously given to the plaintiffs by the Lagos Executive Development Board on 21st July, 1971, and conveyed by the said Lagos Executive Development Board in the letter dated 26th August, 1971 to the Ministry, and
(c) to the approval conveyed to the plaintiffs by the Ministry in its letter dated 25th March, 1972.
(3) That the defendants' purported decision to acquire the plaintiffs' said land at Maroko and Ilado which is delineated on the attached plan Nos. 11 and 111 and the Notice of Acquisition published in the Daily Express of 14th August, 1972, Daily Times of 15th August, 1972, Morning Post of 15th August, 1972 and the Lagos State Nigeria Official Gazette of 18th August, 1972, are of no effect and invalid in that the decision is;-
(i) (a) ultra vires,
(c) mala fide, and
(d) an abuse of power; and
(ii) the said Notice of Acquisition was not served on the plaintiffs as required by the Public Lands Acquisition Law Cap. 105.
(4) That the defendants interfered with contractual relationships between the plaintiffs and others
(i) When without reference to and the consent of the plaintiffs the defendants wrote a letter to the building contractors employed by the plaintiffs ordering or directing the said building contractors to stop all construction work on the plaintiffs' said land, and
(ii) when by the aforesaid Notice of Acquisition and diverse acts of meddlesomeness and threats the defendants made it impossible for the plaintiffs' contractors (including financial institutions, designers, architects, engineers) to continue the performance of their respective contracts.
(5) That, as a result of the defendants' acts complained of herein above, the plaintiffs suffered heavy financial loss amounting to about £5 million (Five million Nigerian pounds)." (Italics are ours).
In addition to the claims set out above, the plaintiffs also asked for an injunction to restrain the defendants, their servants and/or agents from proceeding with the said acquisition or taking any steps either to apply for certificate of title under the Public Lands Acquisition Law or to eject the plaintiffs or their servants, agents or tenants from the plaintiffs' said land.
Pursuant to the order made by the court for pleadings, the plaintiffs filed their statement of claim in which they averred, inter alia, in paragraphs 5, 6, 7, 11, 14, 15, 16, 17, 22, 23, 25, 26, 27, 30, 34, and 40, as follows:-
"5. The land, the subject matter of this Suit, belonged originally to the Oniru Chieftaincy family (hereinafter called "the family"), one of the Idejo land-owning families of Lagos, under Customary Law applicable in Lagos, and for an estate in perpetuity.
6. By virtue of Deeds dated 17th September, 1969, 17th December, 1969, and 17th December 1969 and registered respectively as No. 20 at page 20 in Volume 1307, No.21 at page 21 in Volume 1307, and No. 22 at page 22 in Volume 1307 in the Lands Registry in the Office in Lagos the plaintiffs became seized of the total area of land, the subject-matter of this suit for an estate in fee simple absolute.
7. In 1967, the family through their agents, Oronna Estates Company, prepared a layout plan for Part 'A' Stage 1 of the land in dispute, at a time when the whole land belonged to the family.
11. By a letter dated 26th October, 1967, the family forwarded to the Lagos Executive Development Board (hereinafter called "the Board") for approval the plans of the proposed site development of the said Part 'A' Stage 1.
14. By their endorsements LEDB No. 31605 of 30th January, 1970, and LEDB No. LM. 8031 of 26th February, 1971, and also LCC No. 23020 of 10th December, 171 thereon, the Board and the Council respectively approved the plaintiffs' layout and building plans.
15. By a letter dated 15th January, 1969, the family forwarded to the Board for approval an outline diagram for the proposed development of their entire landed property at Maroko and adjoining villages including Part 'A' Stage 1.
16. In the said letter of 15th January, 1969, the Board was informed that the plaintiffs had been appointed agents of the family for the purpose of carrying out all negotiations relating to the proposed development.
17. By a letter dated 6th January, 1970, the plaintiffs submitted to the Board further plans and detailed drawings, along with an interim report on the plaintiffs' development proposals of their land.
22. After the plaintiffs had given undertaking concerning the provision and maintenance of internal services, the installation and maintenance of central package sewage treatment plant, and the supply of water, and had incorporated in their plans the Board's various suggested amendments. the Board addressed to the Permanent Secretary a letter dated 26th August, 1971, stating that it had approved in principle the plaintiffs' development proposals.
23. By its letter dated 15th November, 1971, the Government's Ministry of Works and Planning (hereinafter called "the Ministry") wrote to the plaintiffs, among other things,
(1) acknowledging the receipt of the plaintiffs' application for approval,
(2) accepting in principle the basic concept involved in the plaintiffs' proposals, and
(3) Suggesting that the proposed development should be phased.
25. At the final stage of the negotiations with the Ministry, the Ministry requested for, and obtained from the plaintiffs, an undertaking that plots for communal facilities on the estate, such as Town Hall, Library, Museum, Police Posts, Magistrate's Court, Health Centres, Post Office, Open Spaces, Polytechnic and Trade Centres, Sports and Recreation Centres, and Schools would be made available to the government.
26. By its letter of 25th March, 1972, the Ministry gave approval to the plaintiffs' development proposals as a whole, and to the commencement of work on stage 1. This approval was further confirmed by the Ministry's letter to the plaintiffs dated 13th April, 1972.
27. Relying on the Council's the Board's and the Ministry's approvals, the plaintiffs proceeded to enter into several contracts with many professional, construction, and design firms with a view to implementing their approved development proposals-including Part 'A' Stage 1.
30. On Saturday, 22nd April, 1972, the plaintiffs held a formal launching of their proposed development project at the Federal Palace Hotel.
34. On Monday, 24th April, 1972, the plaintiffs received from the Ministry a letter of the same date purporting to cancel the approval already given to the plaintiffs by the Ministry.
40. On 14th August, 1972, the Government published in the 'Daily Express' of that day a Notice of Acquisition covering the plaintiffs' whole landed property (which is the subject matter of this action) including Part 'A' of Stage 1".
While admitting the averments in paragraphs 23, 34 and 40 of the statement of claim in paragraph 2 of his own statement of defence, the first defendant put the plaintiffs to the strict proof of all the averments in paragraphs 5, 7, 11, 16, 17, 22, 27, and 30 of the said statement of claim. In addition, he categorically denied each and every averment in paragraphs 6, 14, 22, 25, and 26 of the statement of claim and put the plaintiffs to the strict proof of these. As to paragraph 6, he averred further in paragraph 5 of his statement of defence as follows:-
"5. As regards paragraph 6 of the statement of claim, the defendant avers that the plaintiffs are not seized of the entire area of land the subject-matter of this suit for an estate in fee simple absolute in possession having transferred their interest in a portion of the said land to and vested the same in various persons including Messrs City Group (Africa) Limited in fee simple absolute in possession under a deed of transfer registered as No. 35 at page 35 in Volume in 1369 in the Lands Registry in Lagos."
The first defendant averred that if any plan was submitted by the plaintiffs to the Lagos Executive Development Board for approval, it was for approval under the provisions of the Lagos Town Planning act (Cap. 95). Finally, in his denial of the averments in paragraphs 26 and 40 of the statement of claim, he averred in paragraphs 13, 14, and 18 of his statement of defence as follows:-
"13. The defendant denies paragraph 26 of the statement of claim and avers that the Lagos State Ministry of Works and Planning (hereinafter called 'The Ministry') had never given a final approval to the whole development proposal submitted by the plaintiffs and if the Ministry had given any approval at all it was a conditional approval given in respect of the first phase of the development scheme.
14. In further answer to paragraph 26 of the statement of claim, the defendant avers that the plaintiffs had not fulfilled the conditions to which the purported approval in respect of the first phase of the development scheme was subject.
18. In further answer to paragraph 40 of the statement of claim, the defendant avers that the said Notice of Acquisition was duly served, after reasonable inquiry, on all persons, including the plaintiffs, believed to be interested in the said land."
Later, the 2nd, 3rd and 4th defendants, for some inexplicable reason, were joined by order of court in the proceedings. In addition to joining issues with the plaintiffs on the various declarations asked for, these three defendants also made a number of counter-claims against the plaintiffs. The 2nd defendants counter-claimed for declaration of title in respect of part of the land claimed by the plaintiffs and also asked for payment of compensation from the 1st defendant. The 3rd defendants counter-claimed "for an interest in the land" and also sought a declaration that the acquisition is valid but that they were entitled to payment of compensation. In their own counter-claim, the 4th defendants contended that part of the acquired land belonged to their family from time immemorial.
To the counter-claim of the 3rd defendants, the plaintiffs filed a reply, paragraphs 1 and 2 of which read-
"1. That the land described in the said paragraph 5 of their statement of claim has from time immemorial been in the uninterrupted ownership and possession of the Oniru Chieftaincy family of Lagos which is one of the Idejo land-owning families of Lagos, and
2. that from time immemorial, the said Oniru Chieftancy family of Lagos has exercised uninterrupted acts of ownership on the said land."
Because of the nature and scope of the claims and counter-claims, it became clear, at the close of pleadings, that in order to succeed in the various declarations of right they were claiming, the plaintiffs must first prove that they are the owners of the 2,300 acres of land. Without proof of this they cannot have any locus standi in the matter. Moreover, as it is common ground that the radical title in the land is in the Oniru Chieftaincy family, they must also trace their root of title to that family.
In support of their contention that they own 2,300 acres out of the 3,100 acres covered by the acquisition notice, the plaintiffs called two witnesses. The first witness is Chief Yesufu Abiodun Oniru (the Chief Oniru of Lagos). He testified on this point as follows:-
"I know the plaintiffs in this case. I am one of the Directors of the Company and my family gave the land in question to the company. I am the Chairman of the Board of Directors of the company. The land is at Maroko and Ilado and beyond Ilado. The boundary is at Alagbon Village. The Oniru family owned the land originally.
When the land was given to the plaintiffs there was a written agreement between my family and the company for the transfer of the land to the company. Nofin Giwa, Yesufu Yinusa, Amodu Fashanu, Buraimo Fashanu, were members of the Family. These people also executed the Agreement I also signed the Agreement and one of my sons signed.
Before we gave the land to the company, the family intended to reclaim the land and to build a town on it. We had this in mind over ten years ago
The Oniru family have a Committee which looks after the properties of the family. They are the people I have mentioned before. These are the people who arranged the transfer of the land to the Company. I was consulted and the family approved."
(Italics are ours).
Under cross-examination, the witness said that the land was sold to the plaintiffs in three lots. He also stated that his family had not received the purchase price from the company because their agreement was that he purchase price would be left with the company. He also stated that he knew that the company had leased part of the land to some persons but did not give the names of these persons. Finally, witness admitted that the family has £100,000 worth of shares in the company and that this amount represented the amount which they would have received from the company. When Chief Oniru was questioned further about the land in dispute, he replied as follows:-
"We have not sold all the land in dispute to the plaintiffs. We have sold half of the land in dispute. Ikate is not among the land sold. It includes Ilado. Maroko is not part of the portion sold. Ilado is part of those sold. Ogayo is among those sold.
If the conveyances show that the whole land had been sold and not half of the land, then the conveyances will not be accurate, those who prepared the conveyances would be guilty of fraud.
Half of the land in dispute belongs to our family and half to the plaintiff/company. We have not been paid for the half of the land sold by us. The amount is £100,000 or
The land at Ikate has been given to Elegushi many years ago and they paid nothing."
The trial was then adjourned to the next day. At the resumed hearing, the Chief, who is illiterate and who had to execute the three conveyances (Exs. C, C1, and C2) by affixing his thumb impression, retracted from our part of what he had said the previous day by testifying as follows:-
"I made a mistake in the evidence which I gave in court yesterday. It is true that all the land in this case has been sold by the Oniru family to the plaintiff/company. We did not sell part of Ikate to the plaintiff/company. I know all the land concerned in this case. I am familiar with them. The Elegushi family are the present owners of Ikate. My family cannot sell Ikate now."
The next witness called to testify as to the ownership of the 2,300 acres is Adebayo Adeleke, (2nd P1/W) who is the Managing Director of the plaintiff company. The Memorandum and Articles of Association (Ex. A) tendered by this witness show that the share capital of the plaintiff company is £1,000 divided into Ordinary Shares of £1 each. It also shows that one Idowu Abiodun Oniru and Adebayo Adeleke (2nd P1/W) are the subscribers and that they each owned one share. Two letters addressed to the Chief Executive Officer, Lagos Executive Development Board, one dated 8th January, 1970 (Ex. 9) and the other dated 13th April, 1970 (Ex. 10) showed the directors of the plaintiff company as Chief Yesufu Abiodun Oniru (Chairman), A. Adeleke, and I.A. Oniru. J.G.L. Poulson & Partners (a firm of Chartered Architects and Town Planners), were also shown as Consultants to the said company. The witness, Adeleke Adebayo, testified as follows:-
"I know the land the subject-matter of this action. The original owners of the land are the Oniru Chieftaincy family. The legal owners of the land are the plaintiff company. The plaintiffs became the owners by Deeds of Conveyance. These three Deeds vested the ownership of the property in the plaintiff company. I seek to tende it."
(Italics are ours).
The witness then tendered the three deeds of conveyance as Exhibits C, C1 and C2 each covering 22.980 acres, 1594 acres, and 723.2 acres, respectively. It is pertinent at this juncture, to refer to the recitals in each of these three deeds of conveyance.
The recitals in Ex. C which is a deed of conveyance between Chief Yesufu Abiodun, the Oniru of Lagos as Grantor and the Company, as Grantees, read:-
"1. WHEREAS: the large area of land which is hereinafter described and which is to be hereby conveyed in fee simple is originally owned by the Oniru Chieftaincy Family from time immemorial under native law and custom of the Yorubas and they have for many years exercised diverse acts of ownership and possession on the land by fishing thereon undisturbed and uninterrupted.
2. The Grantor herein as the accredited Head of the Oniru Chieftaincy Family has control over the whole large track of land hereinafter described and to be hereby conveyed to the Grantees in fee simple.
3. By virtue of a deed of conveyance dated the 15th day of September, 1969 between the accredited representatives of Oniru Chieftaincy Family on one hand and the Grantor on the other and registered as No.99 at page 99 in Volume 1298 of the Lands Registry in the Office at Lagos, the Grantor became seized in fee simple absolute of the whole land herein described. The Grantor and the Grantees have bargained for and agreed to an absolute sale to the Grantees of the large area of land herein described for the price or the sum of one hundred thousand pounds (£100,000) Nigerian Currency.
Now this indenture witnesseth that in pursuance of the promises and in consideration of the sum of one hundred thousand pounds (£100,000) Nigerian Currency paid by the Grantees to the Grantor (the receipt of which is hereby acknowledged by the Grantor) the Grantor as Beneficial Owner hereby gives grants conveys and confirms unto and to the use of the Grantees in fee simple absolute in possession for ever all that area of land situate lying and being at Ilado Village, Victoria Island, Lagos with an area of 1554 acres ............ to hold the same unto and to the use of the said Grantees in fee simple absolute in possession free from all incumbrances."
(Italics are ours).
The recitals in the deed of conveyance dated 17th December, 1969 (Ex. C1) which covers an area of 22.980 acres in Maroko Village, is similar to those In Ex. C. Chief Yesufu Abiodun, the Oniru of Lagos is also the Grantor and beneficial owner in fee simple. He conveyed the land referred to therein to the company in that capacity for the sum of
N50,000. The deed recited that the land was conveyed to him in fee simple by the Oniru Chieftaincy family in a conveyance "registered as No. 52 at page 52 in Volume 1250 of the Lands Registry in the Office at Lagos." Thereafter, the Chief, as beneficial owner,-
gives grants conveys and confirms unto and to the use of the Grantees in fee simple absolute in possession for ever all that area of land situate lying and being at Maroko Village, near Ikoyi, Victoria Island, Lagos with an area of 22.980 .......... to hold the same unto and to the use of the said Grantees in fee simple absolute in possession free from all incumbrances."
The third deed of conveyance dated 17th December, 1969 (Ex. C2) is also similar to Ex.C. In it, Chief Yesufu Abiodun (1st P1/W) as the Grantor and Beneficial owner, conveyed an area of 723.2 acres to the Company in his capacity as beneficial owner in fee simple. According to the conveyance (Ex. C2), Chief Yesufu Abiodun became the owner in fee simple of the 723.2 acres-
"By virtue of a deed of conveyance dated 15th day of September, 1969, between the accredited representatives of Oniru Chieftaincy family on one hand and the Grantor on the other and registered as No. 100 at page 100 in Volume 1298 of the Lands Registry in the Office at Lagos".
It is necessary to point out at this stage that none of the three deeds of conveyance referred to in Exhibits C, C1, and C2 by which each of the three pieces of land was conveyed to Chief Yesufu Abiodun by the Oniru Chieftaincy family was tendered in evidence. In other words, there is nothing to show that the Oniru Chieftaincy family conveyed the parcels of land to Chief Oniru before he conveyed them to the plaintiffs by the deeds of conveyance which were admitted in evidence as Exhibits C, C1 and C2.
It is common ground that the Oniru Chieftaincy family before the purported sale and the company after the said sale, prepared two plans (Exs. L and L1) for the development of the land in dispute. J.G.L. Poulson was also shown as the planning consultant on each of the two plans. The development was to be carried out in three phases, the plan for the first phase having been sent to the Lagos Executive Development Board for approval. The company adduced evidence that the plans have been approved. This is what Adebayo Adeleke said about the approval of the plan for this first phase, that is part A of Stage 1:-
"Exhibit G comprises 27.6 acres. It is the layout plan. The plan was approved by the L.E.D.B. on 30th January, 1970. Exhibit G1 comprises the same area and it is the same plan. It is the detailed building plan or site plan. After getting approval of this building operations commenced immediately, Ex. G1 was approved by both L.C.C. and the L.E.D.B. on the dates shown on the plan."
Adeleke then referred to a letter dated 15th November, 1971 (Ex. J) written to the company by the Lagos State Ministry of Works & Planning, the relevant part of which reads:-
"1. Your development proposals as contained in the layout plan you submitted are noted.
2. The basic concept involved in the proposals i.e. to develop your landed property into a new town is accepted in principle.
3. However, details of the proposals (including the land-use disposition) as contained in the layout submitted are very sketchy and fall far short of required standards.
4. It will therefore be necessary for you to provide this Ministry with further information before approval of the scheme can be considered.
5. Further, the complex nature of the scheme demands that the proposed development be phased. Four phases spread over a period of approximately five years are suggested.
6. Approval for the scheme will be considered by stages only-approval being given to a phase at a time."
When he was shown the layout plan (Ex. L) under cross-examination and then asked whether there has been any approval of the three phases shown on the plan, Adeleke replied:-
"I see Exhibit L, it does not look as an approved plan. In fact, it is not an approved plan .................... We did not get approved plans with the letter Exhibit N. We acknowledge the receipt of Ex. N. ... When we launched this project we had no approved plan in our possession. Ex. L contained the project, it is the plan of the project. I have never seen any approved plan for the project ................... It occurred to me that something very important was missing, the things were the approved plans."
The third witness called by the company is Olumide Craig, an architect and town planner, who was working for the Lagos Executive Development Board (LEDB) at the material time. He was then the Head of the Planning Division of the Board. He admitted that sometime in 1971, the plan was approved by the Board in principle with a proviso that the Plan should be forwarded to the Ministry of Works and Planning, Lagos State, for final approval. He also admitted that, on the face of it, the layout plan exhibit L has not been approved.
Evidence was also adduced, both in examination-in-chief and under cross-examination, to show that the compulsory acquisition of the land by the Lagos State Government was made in bad faith. In this connection, the plaintiff company referred to the various interviews which they had with the Governor of Lagos State and also to the various statements made by the Governor in which he deplored the proposed development by the plaintiff company. The Governor was also accused of abuse of power. Notwithstanding this accusation of bad faith, Adebayo
Adeleke (2nd P1/W) under cross-examination, had this to say about the Governor's action-
"The Governor said 'I am travelling abroad etc.' paragraph 48 of the Statement of Claim. This is evidence of the Governor's good intention. As a further evidence of his good intention, he is going to offer part of the land to the Oniru family after the layout. This is no evidence of bad faith."
When he was re-examined, he changed his attitude by saying that "the statement of the Governor was not of good intention and good faith."
Evidence was also adduced by the plaintiff company as to the various expenses they had incurred in pursuance of the project in respect of services rendered to them by engineers, architects, quantity surveyors, estate agents and building contractors. No detailed information was, however, given in respect of fees paid to each of these people.
Finally, the plaintiff company contended that the purported acquisition was ultra vires, void, and of no effect whatsoever partly because the notice of acquisition was defective and partly because it was not served on them in the manner provided for in the Public Lands Acquisition Law (Cap. 105).
Except for the portion of the land known as Ikate which they conceded to the Elegushi family, the plaintiff company disputed the claim of the 2nd and 4th defendants to any portion of the land in dispute.
For the defence, evidence was led by the 1st defendant that the company's scheme was never approved, that the acquisition was made in good faith, and that it was made in accordance with the law. The locus standi of the company in bringing the action was also disputed on the basis that they had not proved that the land they are claiming is theirs. The 1st defendant also denied that the company's plan of the project was approved either by the Lagos Executive Development Board or by the Lagos State Ministry of Lands and Planning. As Mr Akinyemi (1st D/W) the town planner and the Housing Specialist of the Ministry has succinctly put it
"There is no approval for this project, to the best of my knowledge."
The 2nd, 3rd, and 4th defendants also called evidence in support of their respective claims to portions of the land compulsorily acquired.
In a reserved judgment, the learned trial Judge reviewed the evidence adduced by all the parties in detail. He observed, inter alia, that the total area acquired by the Lagos State Government is approximately 3,100 acres and the plaintiffs are claiming about 2,300 acres which is about 74% of the acquired land. He also observed that the company was served with the acquisition notice on 30th September, 1972 while Chief Oniru was served on the 18th September, 1972. The notice of acquisition was also published in the Official Gazettes No. 20 of 18th August, 1972 and No. 23 of 26th October, 1972. In dealing with the conveyances on which the company based their title to the 2,300 acres, the learned trial Judge found as follows:-
"Although Exs. C, C1, and C2 were executed in favour of the plaintiff company on behalf of the Oniru Chieftaincy by Chief Abiodun Oniru, the present incumbent, I hold that the conveyances are voidable and not void.
This case started in this Court on the 20th of November, 1972, and although there are two other branches of the Chieftaincy family, none of them has so far instituted an action in the High Court or any other court for the sales of the lands to the plaintiff company to be set aside. I hold also that it is not particularly necessary for the plaintiff company to tender the documents referred to in the recitals as giving authority to Chief Oniru to convey the lands to the plaintiff company, the first defendant had every right to prove that the documents were false or forged."
The learned trial Judge also dealt with the submission made on behalf of one of the defendants that the area claimed by the plaintiffs is uncertain. On that point he found as follows:-
"On the point raised as to the uncertainty of the area claimed by the plaintiff company, because part of the land in dispute was sold by the plaintiff company to the City Group Africa Ltd., Adebayo Adeleke who is a director of the company told the court that the City Group has retransferred the land sold to it to the plaintiff company. Most of the lands referred to were sold by the plaintiff company to its tenants and in spite of the sale of these lands, it is my view that the plaintiff company could come to court to claim title for the whole land, on behalf of itself and its tenants. It seems to me that the area of land in respect of which the plaintiff company is seeking declaration is quite clear and definite. I refer to the plans attached to Exs. C, C1 C2 to Exs. 48 and 49. It seems quite clear that the plaintiff company has locus standi in this case."
(Italics are ours).
As to the law which is applicable to the company's development project, the learned trial Judge held the view that the development being carried out by the plaintiffs in the land at Victoria Island, and the proposed development of the lands at Maroko and Ilado are governed by the provisions of the Lagos Town Planning Act (Cap. 95) and the Land Development (Provision of Roads) Act (Cap. 97) He also observed that the prescribed authority for approving the proposed development was the Lagos Executive Development Board up to 31st March, 1971 and the Ministry of Works and Planning from 1st April, 1971. The learned trial Judge then held that the plan Ex. L has not been approved, that the Notice of Acquisition was properly served on the company, and that the land acquired was required for a public purpose. On the question of the validity of the acquisition, he held as follows:-
"On the evidence before me, I declare that the first defendant's decision to acquire the plaintiff's land at Maroko and Ilado and the Notice to Acquisition published in the daily papers and in particular in the Lagos State of Nigeria Official Gazette No. 20 of 18th August, 1972, are valid."
The learned trial Judge also found that the allegation of meddlesomeness and threats alleged against the first defendant has not been proved but he did say that by writing the letter Ex. S, the first defendant interfered with the contractual relationship between the plaintiff company and the parties to the agreements in Exhibits P to P6. The learned trial Judge also held that as from the date on which he delivered his judgment, the land in dispute had become vested in the Lagos State Government although he suggested that some 595 acres should be excised from the acquisition and left to the plaintiff company.
With respect to the claims of the other defendants, he found that the land at Ikate belonged to the Elegushi family while the whole of Maroko, Ilado and Ogayo belonged to the Oniru family. He also found that a narrow strip of land within the land acquired belonged to the Onikoyi Chieftaincy family. He dismissed the claim of the Oba Onibeju family (4th defendant) after holding that their claim was clearly speculative.
Considering the manner in which the issues raised in this case were dealt with by the learned trial Judge, we are not surprised that none of the parties is satisfied with the decision of the learned trial Judge. With respect, it is this lack of clarity in the judgment which has led to the appeal and cross-appeals against the judgment.
In the appeal by the Attorney-General against the judgment, the point which was canvassed at great length before us is that the plaintiff company have not proved that they are the owners of the land in dispute. If they are not the owners, they have no interest in respect of which they can ask for the various declarations claimed in their writ. The plaintiff company's claim is based on the conveyances Exhibits C, C1 and C2. In each of those conveyances, Chief Yesufu Abiodun, the Oniru, as beneficial owner, conveyed one of the parcels of land to the plaintiff company. It is not disputed that the radical title in the three parcels of land belong to the Oniru family. No evidence was adduced to show how Chief Abiodun Oniru became the beneficial owner.
We agree with the contention of the learned Deputy Solicitor-General who appeared for the Attorney-General of Lagos State that unless it can be proved that the Oniru Chieftaincy family which had the radical title in the three parcels of land referred to in Exhibits C, C1, and C2 conveyed them to the Chief in fee simple, the Chief will have nothing to convey to the plaintiff company. By not producing the document by which the land was conveyed to him in each case, Chief Yesufu Abiodun has failed to establish how he came to be the beneficial owner of each of the three pieces of land. Not only that, the onus is on the plaintiff company to prove their root of title and the only way to do this is to produce the deed of conveyance by which the land was conveyed to Chief Oniru and also to call those who conveyed the land to him to testify to that effect. If they were not available, their absence should have been explained to the satisfaction of the court. In Lawal v. G.B. Ollivant (Nig.) Ltd. (1972) 1 ALL N.L.R. Part 1 at page 207, this Court held that a reference in a pleaded document (such as the deeds of conveyance Exs. C, C1, and C2) to another document which is not pleaded is not tantamount to pleading that other document and it is not open to a court to act on such unpleaded document. To make matters worse, the case of the company, as stated by Adebayo Adeleke and Chief Oniru, is that is the Oniru Chieftaincy family who sold the pieces of land to the company. If that is the case, how did it come about that it was Chief Yesefu Abiodun Oniru who conveyed each of the three pieces of land to the company as beneficial owner? It must be pointed out that Chief Yesufu Abiodun Oniru did not convey the three pieces of land to the plaintiff company as part of the Oniru Chieftaincy land. He sold each of them to the company as his own land. Unless there is evidence that the land had been transferred or given to him by the family, and there is no such evidence in the case in hand, the sale by him to the company is void ab initio. The law on this point is well settled. Chief Yesufu Abiodun Oniru, as the head of the Oniru Chieftaincy Family, cannot alone transfer family property. If he alone executes a conveyance of family property as a grantor, the sale is prima facie voidable and the family can set aside such a sale if the other members act timeously. (See Ekpendu v. Erika (1959) 4 F.S.C. 79 at page 81). This is the case only where the head of the family signs the conveyance for and on behalf of the family. It does not apply where, as in the case in hand, he purports to sell the property as the beneficial owner; in that case the general rule that nemo dat quod non habet will apply. Since the deeds of conveyance by which he acquired the parcels of land were not tendered as exhibits in the present case, it is clear that the Oniru has nothing which he can sell in his own personal capacity to the company. As a matter of fact, the position in this case is not unlike that in the case of Akerele v. Atunrase (1969) 1 ALL N.L.R. 201 at page 208 where we held as follows:-
"In the instant case, it is clear that by the conveyance Exhibit D, the vendor therein was purporting to convey his own land, or rather his own private property of which he was 'seized in fee simple in possession'. If, as indeed it did, it turns out that the land actually belongs to the Alago-Asalu family surely on the principle of nemo dat quod no habet, the sale and conveyance must be void ab initio."
In the course of the argument on this point, learned Counsel for the company referred to us the averments in paragraphs 5 and 18 of the 1st defendant's statement of defence and submitted that the company's ownership of the land in dispute had been conceded by these averments. We do not think that any such concession was made in paragraph 18 of the statement of defence. As for the averments in paragraph 5 which is a follow-up to the categorical denial of the company's ownership of the parcels of land in paragraph 4 of their statement of defence, we are of the view that this is only pleaded in the alternative; all it means is that the plaintiffs cannot, in any case, be seized of the entire area of land which is the subject matter of the suit for an estate in fee simple since they have purported to transfer their interest in a portion of the said land to various persons including Messrs City Group (Africa) Ltd. Admittedly, this averment is inconsistent with the categorical denial of ownership in paragraph 6 of the statement of defence. Such consistent averment is however not unusual in pleadings. A defendant may raise by his defence without leave as many distinct and separate and therefore inconsistent defences, as he may think proper. (See Berdon v. Greenwood (1878) 3 Ex. D.251 at page 255 and Hawkesley v. Bradshaw (1880) 5 Q.B.D. 302). Moreover, a defence is not embarrassing merely because it contains inconsistent averments, provided they are not fictitious (Re Morgan 35 Ch.D. page 496). The important thing is that whenever alternative defences are alleged, such as in the present case, the facts belonging to each defence ought not to be mixed up, but should be stated separately, so as to show on what facts each alternative defence is based.
For all these reasons, we are of the view that the plaintiff company have not shown either by oral evidence or by the deeds of conveyance (Exs. C, C1, and C2) that they have such an interest in the 2,100 acres as to give them a locus standi in respect of the various declarations claimed by them. This does not mean that they are estopped from proving their title to the area claimed by them in another action. All that we are saying is that by their omission, in the case in hand, to produce the deeds of conveyance by which the three parcels of land were conveyed to Chief Abiodun Oniru before he transferred his interest to them, the company have failed to establish their locus standi in the present action.
In their cross-appeal against the judgment, the plaintiffs complained about various portions of the judgment. After referring us to some of the errors made by the learned trial Judge in his findings, we were asked to set aside the judgment of the learned trial Judge by holding-
(a) that the compulsory acquisition of the land is invalid;
(b) that the narrow strip of land between the land claimed by the plaintiffs and that claimed by the Onikoyi Chieftaincy family belongs to the plaintiffs;
(c) that the portion of land known as Ikate should be declared to belong to the Oniru Chieftaincy family;
(d) that the approval of the plaintiffs' development plan Exhibit G has not been validly cancelled by Ex. S;
(e) that the approval of the plaintiffs' development plan Ex. L conveyed by Exs. N and O is valid and has not been validly cancelled by Ex. S;
(f) that the development carried on by the plaintiffs on their land is governed by the Land Development (Provision for Roads) Law (Cap. 97) and not by both Cap. 97 and the Lagos Town Planning Law (Cap. 95); and
(g) that the approval given by the appellant in Exs. Q4 to Q23 has not been validly cancelled.
In the course of his argument in reply, the learned Deputy Solicitor-General, who appeared for the Attorney-General of Lagos State, conceded with commendable frankness, not only that the law that is applicable is the Land Development (Provision for Roads) Act (Cap. 97) but also that the prescribed authority for approving any scheme made under that law is the Lagos Executive Development Board. He also conceded that at the time the letter (Ex. S) which cancelled the approval earlier given in the letter (Ex. N) was written, the Lagos State Ministry of Works had no authority either to approve the project or to cancel any approval. The learned Deputy Solicitor-General, rightly in our view, then pointed out that the Lagos Executive Development Board which was the prescribed authority for granting approval under Cap. 97 gave no approval for the scheme. His reasons, with which we also agree, are as follows. Firstly, the purported approval given in principle, was given under the Lagos Town Planning Act (Cap. 95) which is the wrong law since the area concerned had not, at the material time, been declared a town planning area. Secondly, an approval "in principle" is no approval in law, and in any case, an approval in law is that given by the authority vested with the power to give it. Thirdly, the manner of granting approval, as set out in section 4 sub-section 8 of Cap. 97, after all the objections indicated by the prescribed authority had been met, was not followed in this case. For case of reference, the provisions of the sub-section are reproduced hereunder as follows:-
"After receiving such notification, the owner shall also prepare four identical plans showing the parts of the land demarcated under subsection (7) as reserved for roads and shall transmit the plans to the prescribed authority, who if it finds them to be correct, records its approval on each plan and returns one of them to the owner."
Fourthly, Adeleke (2nd P1/W) himself admitted in evidence that no approved plan, stamped as required by law, was sent to them by the Lagos Executive Development Board. For all these reasons, the learned Deputy Solicitor-General was also of the view that the learned trial Judge erred in law when he held that both the Lagos Town Planning Act (Cap. 95) and the Lagos Development (Provision for Roads) Act (Cap. 97) applied to the plaintiffs' scheme.
Learned Counsel for the plaintiff company also complained about the validity of the notice of acquisition as well as the acquisition itself. The basis of the complaint was that no notice was served on the plaintiff company before the publication of the notice of acquisition in the Lagos State Official Gazette of 18th August, 1972. Admittedly, the provisions of section 9(3) of the Public Lands Acquisition Law, Cap. 105 (hereinafter referred to as the Law), state that all notices served under the provisions of the Law shall be published once at least in the State's Gazette. Not only is there evidence, that the notice of acquisition was served on the plaintiff company on 30th September 1972, there is also evidence, which the court accepted, that after service, a copy of the same notice was published in another issue of the Official Gazette dated 26th October, 1972, we were, however, not told in the argument before us that the notice service on 30th September 1972 was for the purpose of the Gazette Notice of 18th August, 1972, and not for that of 26th October, 1972. For all these reasons, we are unable to see any merit in the complaint about the service of the notice of acquisition.
The plaintiff company, in their complaint about the validity of the acquisition, laid particular stress both at the hearing in the court below and in this Court on the fact that it was motivated by malice on the part of both the Governor and the Lagos State Government. We are unable to discern any malice or bad faith on the part of the Lagos State functionaries, notwithstanding the rhetorical and ill-advised outburst of the Governor at the meeting he had with the members of the Oniru Chieftaincy family on Victoria Island when the issue of acquisition was being discussed. All we need say about this complaint is to repeat the following views of the learned trial Judge which seem to bring the matter more sharply into focus:-
"It is clear from the above that the land acquired at Maroko, Ilado, and Moba is required for public purposes. The LEDB which was an agent of the Lagos State Government had before made a scheme for Maroko and Victoria Island, the plan for the scheme was tendered by Akin Craig, the third witness for the plaintiff company, and it was admitted as Exhibit 7; it is dated 25th June, 1968. It is a comprehensive layout site of Maroko and Ilado, the layout plan was prepared long before the plaintiff company prepared its own layout plan for Maroko and Ilado. This plan, in my opinion, shows the bona fides of the Lagos State Government, it proved beyond doubt that the Lagos State Government had already planned to develop the place before the plaintiff company started its own scheme."
It must be remembered that the total area of land acquired is 3,100 acres. The area claimed by the plaintiff consists of only 2,300 acres. Since the acquisition is not limited to the land claimed by the plaintiffs and since the other persons affected by the acquisition have not complained of bad faith, we do not see how the learned trial Judge could have held on the flimsy and dubious evidence adduced by the plaintiffs that the whole land was not acquired in good faith. We therefore agree with his finding that the acquisition was made in good faith.
Adverting once again to the complaint as to the validity of the notice of acquisition, there is no doubt that although the first notice was published prematurely on 18th August, 1972, the second notice, published on 26th October, 1972, after service of the acquisition notice on the plaintiffs is valid: see section 9(3) of the Law). As learned Counsel for the plaintiff company has rightly pointed out, two types of notices are enjoined on the acquiring authority. The first notice is provided for in section 5 of the Law which, after necessary adaptation, reads-
"If the Military Governor resolves that any lands required for a public purpose of the State shall be compulsorily acquired, the permanent secretary shall give notice to the persons interested or claiming to be interested in such lands or to the persons entitled by this enactment to sell or convey the same or to such of them as shall after reasonable enquiry be known to him (which notice may be as in Form A in the Schedule or to the like effect)"
This first notice is intended for the notification of all interested parties and its main purpose is to make them become aware of the "resolution" of the acquiring authority to compulsorily acquire the land for a public purpose. No question of whether the acquisition is in bad faith or good faith could or would therefore arise. What is important and pertinent is that the acquisition must be for a "public purposes" as defined in section 2 of the Law. In that section, "public purpose" includes (a) "exclusive Government use of for general public purpose", and (b) "the laying out of any new township or Government station or extension or improvement of any existing township or, Government station". It is, indeed, pertinent at this juncture, to refer to the averment in paragraph 54 sub-paragraph 4(ii) of the plaintiffs' statement of claim which reads:-
"54. At the trial of this action, the plaintiffs will contend as follows:-
(4) that the purported acquisition of the plaintiffs' said land
(ii) is being made with a view to the Government's transferring the same immediately after acquisition to the Lagos State Government and Property Corporation for development as a new town."
Bearing in mind that the Corporation referred to above is a Lagos State Government Corporation, this, to our mind, is clearly an admission by the plaintiffs themselves that the land is required for a public purpose, and also clearly negates any allegations of bad faith.
The second notice, provided for in section 8 of the Law, which the acquiring authority may find it necessary to give is that of directing the persons in possession to yield up possession of the land so compulsorily acquired. The section provides as follows:-
"8 (1). The Military Governor may, by such notice as aforesaid or by any subsequent notice, direct the persons aforesaid to yield up possession of such lands after the expiration of the period specified in such notice, which period shall not be less than six weeks from the service of such notice, unless the land is urgently required for the public purpose.
(2) At the expiration of such period, the Governor and all persons authorised by him shall be entitled to enter into and take possession of such lands accordingly."
By this section, the acquiring authority is empowered to publish in one notice (and this is what has been done in the case in hand) both the notice of acquisition and the notice of his intention to take possession. As a matter of fact, paragraphs 1 to 5 of the notice which were first published in the Gazette of 18th August, 1972, and served on the plaintiff on 30th September, 1972, (and published again in the Gazette of 26th October, 1972), dealt with the compulsory acquisition of the 3,100 acres of land while paragraphs 6 and 7 thereof gave notice of intention to take possession within six weeks from "the date of the notice". Admittedly, the acquisition notice is dated 12th August, 1972, but was not duly published (in accordance with section 9(3) of the Law) until 26th October, 1972, that is, long after the period of six weeks had expired. This obvious administrative oversight, to our mind, would not and did not affect the validity of the notice of compulsory acquisition. In our view, it could only affect the period for taking possession of the land which, in the circumstances of this case, having lapsed, would now have to be prescribed by a fresh notice pursuant to section 8 of the Law. Anyway, since the Lagos State Government, pursuant to the undertaking given in the court below, does not intend to go into possession until these proceedings are finally determined, the complaint in this respect is, to say the least, patently academic. Indeed, this obvious oversight has not occasioned any miscarriage of justice.
After dealing with the matters relevant to the claims before him, the learned trial Judge, no doubt prompted by certain observations made by the learned Attorney-General in his final address before the court, observed as follows:-
"If the Government wanted only 195 acres in Stage 1, why was the whole 790 acres acquired? The acquisition of the whole 790 acres was not justified. It is good to have the power of a giant, but it is not good to use is as a giant, the 595 acres should be excised from the acquisition and left to the plaintiff company. The plaintiffs' case ought to be entertained sympathetically because it is undoubtedly suffering a substantial loss for the benefit of the community"
In our view, this observation is neither apt nor relevant to the claim before the court. At best, it is a matter for private negotiation between the parties to the dispute. At worst, it makes nonsense of his earlier decision that the whole area in dispute had been validly acquired by the Lagos State Government. However, since it is merely an observation and not a finding of the court, it should not be regarded as part of the decision of the learned trial Judge.
There is one other point which merits our consideration. When considering the effect of the acquisition of the land in dispute, the learned trial Judge found as follows:-
"I must make it clear in this judgment that all the lands in dispute have become vested in the Lagos State Government, and as at the date of this judgment, they are the properties of the Lagos State Government, but as I have said earlier, certain parcels of land are to be excised from the acquisition."
As we have pointed out earlier, there is no claim for the excision of any portion of the land in dispute before the learned trial Judge and he was clearly in error making this ill-advised observation which could only confuse the issues before him.
Furthermore, he was clearly in error in stating that the land had become vested in the Lagos State Government by the mere publication of the notice of acquisition. In this connection, we refer to the following observation of this Court in Atunrase & ors. V. Federal Commissioner for Works & Housing (1975) 6 S.C. p. 1 at page 10 which appears to be particularly apposite:-
"Mr Akinwunmi, learned Counsel for the respondent, contended that the judgment of the lower court should not be disturbed for the reason that the property became vested in the Federal Government on December 22 1962, by virtue of the Acquisition Notice of that date. He cited the judgment of this Court in Chairman, LEDB v Adesina (1969) All N.L.R. (Part 1) 188 at p. 122, as authority for the proposition that ownership must be deemed to pass to the Government from the date of acquisition. We would point out, however, that this case is not an authority for that proposition because the decision in the Adesina's case turned upon an interpretation of section 45(2) of the Lagos Town Planning Act, Cap. 95, under which the scheme of development would itself name the vesting date. We think we ought to make it clear that, in the absence of any particular statutory provision to the contrary, the issuing of the public notice of acquisition does not immediately vest the title to the land in the Government, but that the latter may acquire it only after satisfying the provisions of the Public Lands Acquisition Act requiring that a Land Certificate should be obtained as proof of title".
As for the narrow strip of land which the learned trial Judge gave to the Onikoyi Chieftaincy family, we are unable to see any basis for this, particularly as this family did not even file any survey plan of the land.
The case of the Elegushi family is, however, different. The area of land known as Ikate was conceded to them by Chief Abiodun Oniry and none of the other parties disputed this particular piece of land with them. The decision of the learned trial Judge to award this land to the Elegushi family is amply supported by the evidence. Learned Counsel for the plaintiff company even conceded this piece of land to the Elegushi family at the hearing of this appeal and stated that they were abandoning their appeal against the finding of the learned trial Judge in this respect.
Since they have not succeeded in proving, at least in the case in hand, that they are the owners of any portion of the acquired land, the plaintiff company are not competent to question the validity of the acquisition.
Moreover, learned Counsel for the plaintiff company, having admitted that no evidence was led in support of it, did not press their complaint about the decision of the learned trial Judge on the financial loss claimed by them.
On the whole, we were left with the impression that learned Counsel for the plaintiff company, having said everything, meticulously, attractively, and with much force, that could be said on behalf of his clients, sought to escape from what he recognised as a difficult position due, no doubt, to the crucial admissions made by the witnesses who testified for the plaintiff company. In his commendable efforts in this respect, he has fastened upon isolated findings made by the learned trial Judge in the course of a lengthy judgment but which are admittedly unsupported either by the law or by the evidence. He has very skilfully, if we may say so, got the last ounce out of these erroneous findings. Undoubtedly, none of these errors affect the validity of the compulsory acquisition of the 3,100 acres of land covered by the acquisition notice dated 12th August, 1972, and published in the Lagos State of Nigeria Official Gazette dated 26th October, 1972.
Having regard to our decisions on the various points raised in the appeal and cross-appeals it is our view that the plaintiff company (i.e. the City Property Development Ltd.), having stated that the Oniru Chieftaincy family are the original owners of the land, have failed to trace their title to the 2,300 acres claimed by them (and on which they have based their claim as to the invalidity of the compulsory acquisition) to the said family. Consequently, the company have also failed to prove that they are the owners of the said land. For these reasons, we are also of the view that they have no locus standi in the case in which the validity of the compulsory acquisition was challenged by them in the lower court. To this extent only, the appeal of the Attorney-General of Lagos State (1st defendant), as we have stated earlier, is allowed and the finding of the learned trial Judge in this respect is set aside. For the avoidance of doubt, however, these views should not be taken as a decision as to the ownership of all or part of the land they have claimed in their pleadings. All we are saying is that the meagre evidence adduced by them, both oral and documentary, does not support the finding of the learned trial Judge that they are the owners and that they, therefore, have a locus standi in the case before him. We wish to make it clear again that the issue of the ownership of the 2,300 acres or part thereof is still at large and should be determined solely on the evidence adduced and the proof produced by or on behalf of all the parties who have put in claims for compensation pursuant to the compulsory acquisition.
Secondly, the title in the area of land (3,100 acres) acquired by the Lagos State Government, until a certificate of title has been granted to the said Government by the High Court on an application made ex parte to the court for such certificate (and no such certificate has been granted), will not become vested in the said Government. (See sections 25 and 26 of the Public Lands Acquisition Law (Cap.105) and also the decision of this Court in Atunrase & ors. v. Federal Commissioner for Works and Housing (1975) 6 S.C. p. 1 at page 10).
Thirdly, the observation of the learned trial Judge that an area of 595 acres should be excised from the acquired land and given back to the plaintiff company is a non-sequitur; is not part of the plaintiff company's claim and should be disregarded, particularly as it clearly inconsistent with his finding, with which we agree, on the validity of the acquisition.
Fourthly, his order granting to the Onikoyi family the narrow strip of land within the acquired land which has been claimed by both the Oniru Chieftaincy family and the Onikoyi family (who filed no plan of the land they were claiming) is patently erroneous and is hereby set aside.
We, however, think that his order that the whole of Ikate area belongs to the Elegushi family is amply supported by the evidence. His decision in this respect, is therefore sustained.
Finally, we agree with learned Counsel for the plaintiff company that the type of development which the company proposed to carry out on the 2,300 acres of land claimed by them is governed solely by the Land Development (Provision for Roads) Act, (Cap. 97 Laws of the Federation) and NOT by both Cap. 95 and Cap. 97. Furthermore, in our opinion, the "prescribed authority" empowered to give approval under that Act (Cap. 97) was at the material time the Lagos Executive Development Board. We wish to point out, however, that in the particular circumstances of the case in hand, the issue of approval or no approval is only relevant to a claim for compensation from the acquiring authority and not to the validity of the compulsory acquisition of the land.
Of all the declarations claimed by the plaintiff company in their cross-appeal, we think that the claim for a declaration that their proposed development are within the provisions of the Land Development (Provision for Roads) Act (Cap. 97) would have succeeded but for their failure to prove that the land covered by the proposed developments is the plaintiff company's land. Save, therefore, as to this observation and as to the other findings and observations which we have made in the course of this judgment, (which do not, in any way, affect the correct finding of the lower court on the validity of the acquisition of the 3,100 acres), the cross-appeal of the plaintiff company (City Property Development Ltd.) fails and it is dismissed.
The cross-appeal of the Oba Onibeju family (4th defendant) which has been abandoned, is also dismissed.
Both the plaintiff company (City Property Development Limited) and the 1st defendant have complained with glaring justification about the judgment of the learned trial Judge. Even his order to join the 2nd, 3rd and 4th defendants, having regard to the nature of the claim, is inexplicable and unnecessary. It has only made the issues unduly diffused and complicated. This is made abundantly clear by the lukewarm attitude of these defendants to the hearing of the appeal in this Court. For these reasons, we make no order as to costs as between the plaintiff company and the first defendant. The plaintiff company will, however, pay the Elegushi family costs assessed at
N210 while Oba Onibeju family will pay the plaintiff company costs assessed at N210. Finally, since the plaintiff company has succeeded in their cross-appeal against the Onikoyi Chieftaincy family with respect to the narrow strip of land, they are entitled to their costs against that family which we assess at N210.