ATUNRASE & ORS (APPELLANT)

v.

FEDERAL COMMISSIONER FOR WORKS AND HOUSING (RESPONDENT)

(1975) All N.L.R. 331

Division: Supreme Court

Date of Judgment: 20th June 1975

Case Number:

Before: Elias, C.J.N., Fatayi-Williams and Irikefe, JJ.S.C.

Appeal from the High Court, Lagos State.

The Federal Commissioner for Works and Housing took out an Originating Summons to certain claimants, including the persons who should be paid compensation money for land compulsorily acquired in Yaba.

The court, after considering the various Statements of Interests awarded compensation to certain claimants, including the Oloto chieftaincy family. But the Oloto had on the family's behalf, previously conveyed the land to one Atunrase who had paid him for it and in whose favour a conveyance had been executed.

Trial Court held that Atunrase's claim must fail because of fraud employed by him in obtaining the execution of the conveyance by the Oloto Chieftaincy family in his favour, and because of the fact that land in respect of which Government notice of acquisition had been issued ipso facto becomes vested in the Government from the date of the notice of acquisition.

Appellant sought permission on appeal, to tender in evidence a letter in which Chief Oloto had contrary to two affidavits which the family had now sworn written to the Federal Government that he had sold the land to Atunrase, and the reply from the Federal Government acknowledging the situation. After Supreme Court had admitted these documents as additional evidence, the appellant pointed out that trial Court's finding of fraud was wrong because fraud was never pleaded nor mentioned by the parties in the proceedings before the lower court, and secondly that trial Judge erred in holding that the mere issuing of acquisition notice under the Public Lands Acquisition Act automatically vests the ownership of the land in the Government.

HELD:

(1)     that until the Government has obtained a Land Certificate in respect of the land purported to have been acquired by it, no title passes to the Federal Government by the mere issuing of the acquisition notice;

(2)     that the lower court's judgment cannot stand, because the learned trial Judge's finding of fraud was made without fraud having been pleaded by the parties;

(3)     that the order of the lower court, awarding compensation in respect of the area of the land concerned to the Oloto Chieftaincy Family is hereby set aside; and

(4)     that the compensation due should be paid to the appellant instead.

Appeal allowed.

Cases referred to:

Asaboro v. Aruwaji & anor. (1974) 4 S.C. 119 at 124; Chairman L.E.D.B. v. Adesina [1969] All N.L.R. (Part I) 118 at 122.

Statutes referred to:

Public Lands Acquisition Act (Cap. 167).

Conveyancing Act 1881, S. 63 (1).

Lagos Town Planning Act, Cap.95, S. 45 (2).

APPEAL from the High Court, Lagos.

SUIT NO. S.C. 171/74.

Chief F.R.A. Williams (with him Mr D. V. F. Olateru Olagbegi) for the Appellant.

Mr S. G. Laoye, Principal State Counsel, for the 1st Respondent (The Federal Commissioner for Works and Housing).

Mr E. Olu AKinwunmi, for the 2nd and 3rd Respondents (Oloto Chieftaincy Family).

ELIAS, C.J.N. (Delivering the Judgment of the court)-In Suit No. M/186/69, the Federal Commissioner for Works and Housing took out an originating summons in the High Court of Lagos State in the following terms:

"Let all Parties attend at the High Court of Justice Lagos on Monday the 17th day of November, 1969 at 9 o'clock in the forenoon on the hearing of an application on the part of the Federal Commissioner for Works and Housing Lagos, for the determination of the following questions:-

The Person or persons entitled to the Land situate at Yaba East, Lagos Mainland and described in the Government Notices Nos. 2444 and 131 dated 22nd December, 1962 and 10th January, 1964 respectively, copies whereof are attached hereto, and the amount of compensation payable therefore."

In the schedule attached to the summons are to be found the names of certain persons who were likely to be affected by the Government Notice of Acquisition under the Public Lands Acquisition Act (Cap. 167) in respect of the land required for the service of the Federal Government. In due course, several claimants came before the court and, after considering the various Statements of Interest and the evidence led in support thereof, the learned trial Judge held that compensation should be paid to the 4th, the 7th, the 9th and the 10th successful claimants. As we are concerned in this appeal only with the case of the 10th claimant, we set out the order in respect of this claimant in full:

"The Oloto Chieftaincy family will be paid compensation for any part of the land not covered by any of the Orders made in respect of the 4th, 7th and 9th claimants."

The present appeal has been brought by the appellant asking to be substituted for the Oloto Chieftaincy family as the one entitled to the compensation ordered by the learned trial Judge. The grounds of appeal are as follows:

"1.     Judgment is against the weight of Evidence.

2.      The learned trial Judge erred in law and on the facts in holding as follows:-

'On the evidence before me I am satisfied that the 1st Claimant falsely and knowingly represented to the Oloto Chieftaincy family that the land conveyed him by Exhibit C was not part of the land acquired by Exhibits U and V and described in Exhibit A. The claim fails and is dismissed.'

PARTICULARS OF MISDIRECTION

(i) The Decision is against the weight of Evidence.

(ii) There was issue raised on the pleadings to warrant any such findings.

(iii) The 10th Claimant did not show that in executing Exhibit C the Oloto acted with reasonable care.

3.      The learned trial Judge erred in law in failing to observe that there was no plea before him that on the date when the 10th Claimant executed the Conveyance Exhibit 'C' the Oloto Chieftaincy Family had no right title or interest in the land conveyed and accordingly there was no admissible evidence on the issue.

4.      The learned trial Judge erred in law and on the facts in failing to observe that until the issue of a Certificate of Title to the Government the legal estate (or alternatively an estate in equity) remains vested in the true owner of any Land compulsorily acquired.

5.      Further and in the alternative to ground 4 the learned trial Judge erred in law and on the facts in failing to observe that the conveyance Exhibit C was effectual to pass all the estate, right, title, interest, claim or demand which the Oloto Chieftaincy Family have in, to or on the property conveyed. Accordingly, the right interest or claim of the Oloto Chieftaincy Family in or to the compensation payable for compulsory acquisition of their title to the land acquired has passed to the 1st Claimant by virtue of the conveyance aforesaid."

Later, the appellant also sought for an order of this Court:

"(i) that the Grounds of Appeal be amended by adding the grounds shown in the first schedule to this motion on notice;

(ii) that the letter written by the 10th Claimant, Chief Oloto of Oto, dated 6th January, 1967, to the Permanent Secretary, Ministry of Lagos Affairs and the reply of the Director of Lands and Survey dated 20th January, may be admitted as additional evidence at the hearing of this appeal in support of the additional Grounds of Appeal; and

(iii) such further or other orders as this Honourable Court may deem fit to make.

SCHEDULE

ADDITIONAL GROUND OF APPEAL IN THE

ALTERNATIVE

The Oloto had by a letter dated 6th January, 1967, abandoned his claim to the land claimed by the 1st Claimant."

Learned Counsel for the appellant referred to a letter dated January 6, 1967, and a reply thereto, Exhibit B, and submitted that the counter-affidavit of one Lasisi Salami Afisi subsequently sworn to should be ignored as it did not affect the subject-matter of the appeal, and that the co under-affidavit of the Oloto might be admitted and treated along with the appeal. It is necessary at this juncture to set out the letter of January 6, 1967, and the reply thereto as follows:

"Chief E. Jas. Ogundimu,

The Oloto of Oto,

3, Palace Road,

Oto, Lagos.

6th January, 1967.

The Permanent Secretary,

Ministry of Lagos Affairs,

Land Division,

Lagos.

Sir,

This is to inform you that I and my family have no more interest in all the land conveyed by the two conveyances registered as No. 38 at page in volume 1222, of the Federal Land Registry Lagos, dated the 14th day of March 1964, and No. 53 at page 53 in volume 1222 dated the 30th day of April, 1964 as the lands shown in the two Conveyances have been sold and conveyed to Mr J. B. Atunrase of 69A, Great Bridge Street, Lagos, Nigeria by myself and my family.

DATED at Oto Palace, Oto Lagos, this 6th January, 1967.

(Sgd.) E. JAS OGUNDIMU,

CHIEF OLOTO OF OTO

6/1/67"

"Works and Housing,

Land and Surveys

20th January, 1967.

E.71/4/S.9/14.

Sir,

University of Lagos Site Acquisition Re: Oloto Chieftaincy Family Claim

I have the honour to acknowledge the receipt of your letter dated 6th January, 1967 in which you withdrew your claim against Mr J. B. Atunrase on his two parcels of land at Yaba East.

I have the honour to be,

Sir,

Your obedient servant,

(M. Osezua Ovonlen)

for: Director of Lands and Surveys

Chief E. J. Ogundimu, The Oloto of Oto,

3, Palace Road, Oto, Lagos"

"Ministry of Works and Housing

Lands and Surveys Division,

Lagos

20th January, 1967

No. E.71/4/S.9/14A

Copy to:-

Mr J. B. Atunrase,

69a, Great Bridge Street, Enu Owa,

Lagos

Above for your information.

(M. Osezua Ovonlen)

for: Director of Lands and Surveys"

Mr Akinwunmi, learned Counsel for the respondents, objected to the admission of the letter in question on the ground that the application of the appellant was not made in good faith. He contended that this is not a court of trial and that the so-called additional evidence sought to be put in was already available at the trial but that the plaintiff failed to produce it there; he cited Asaboro v., Aruwaji & anor. (1974) 4 S.C. 119, at p. 124, in support of his contention. We, however, drew his attention to the following passage from the evidence of Chief Oloto himself given under cross-examination:

"Now that I have sold by mistake to the 1st claimant, I would not prevent him from getting compensation. I received the money mentioned as consideration in Exhibit C."

The reply of learned Counsel for the respondent was that the point was appreciated and that it was on that account that his clients, the Oloto Chieftaincy family, sought to overcome the obstacle in their way by means of the two counter-affidavits. We are, however, of the view that the affidavits do not affect the legal position and are worthless. We also ruled that the two letters attached to the appellant's application be admitted as Exhibits X and Y. We then called upon Chief Williams to argue the appeal.

The submission of Chief Williams was that the learned trial Judge awarded compensation for two reasons:

(i) that there was a fraudulent misrepresentation by Atunrase to the Oloto in obtaining execution of the conveyance, Exhibit C; and

(ii) that at the time of the execution of the conveyance, only the Federal Government could convey and not the Oloto.

With regard to (i), Chief Williams pointed out that, in the appellant's statement of interest as well as that of the Oloto Chieftaincy family, there was never any allegation of fraud, and that, accordingly, the learned trial Judge had no basis for any finding of fraud against the appellant.

With regard to (ii) above, Chief Williams submitted that there were two answers:

(a)     that the Public Lands Acquisition Act, Cap. 167, does not pass the title to the land to the Federal Government until the Land Certificate was issued to it in accordance with sections 25 and 26 of the Act. Sections 25 and 26 of the Act may be set out as follows:-

"25. The Minister may, at any time after the expiration of six weeks from the date of the service and publication of the notice mentioned in section 5, apply ex parte by summons to the High Court for a certificate of title to the whole or any part of the lands described in such notice and upon such application the court shall, upon proof of the service and publication of the said notice, grant a certificate of title as in Form D in the Schedule or to the like effect to the whole of the lands described in such notice or to that part thereof in respect of which the application is made, which certificate shall not be questioned or defeasible by reason of any irregularity or error or defect in the notice or want of notice, or of any other irregularity, error or defect in the proceedings previous to the obtaining of such certificate.

26.     Every conveyance and certificate of title granted under this Act shall be filed in the appropriate office of the lands registry, and every such conveyance or certificate of title shall confer on the President in trust for the State, the interest comprised or referred to therein against all persons, free from all adverse or competing rights, titles, interests, trusts, claims and demands whatsoever, subject to the terms and conditions, if any, therein mentioned."

(b)     that the appellant had averred in paragraph 6 of his Statement of Interest as follows:-

"In the alternative to paragraph 5 hereof this claimant avers that by operation of law, the conveyance pleaded in the said paragraph passed to him all the rights, interests, claims, and demands which the Oloto Chieftaincy family had in, to, or on the property conveyed."

It was his case that, even if it were granted that the Oloto could not convey, the effect of section 63 (1) of Conveyancing Act, 1881 is that every conveyance shall pass all the estates and interest of the vendor to the purchaser, and that this includes receiving the compensation money. Section 63 (1) of the Conveyancing Act of 1881 reads as follows:-

"Every conveyance shall, by virtue of this Act, be effectual to pass all the estate, right, title, interest, claim, and demand which the conveying parties respectively have, in, to, or on the property conveyed, or expressed or intended so to be, or which they respectively have power to convey, in, to or on the same."

He finally submitted that the appeal to be allowed and that the compensation money be paid to the appellant and not to the Oloto Chieftaincy family in respect of the 8.6 acres involved. He pointed out that he was not complaining about the other awards of the learned trial Judge but only in respect of the award to the 10th Claimant, the Oloto Chieftaincy family, which should be paid to the 1st Claimant, the appellant.

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, L.E.D.B. v. Adesina [1969] All N.L.R. (Part I) 118, 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 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.