IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 25TH DAY OF SEPTEMBER 1970
LAGOS CITY COUNCIL ................................................ APPELLANT
EMMANUEL AYODEJI AJAYI ................................................ RESPONDENT
BEFORE: Coker, Madarikan, Fatai-Williams, JJ.S.C.
Compulsory acquisition of Lands-Compensation-Two methods of Valuation in evidence-Judge rejecting one method-Whether bound to accept in its entirety the other method-Public Lands Acquisition Act Cap. 167 sections 15; 17.
Practice and Procedure-Appeal-After receiving notice of appeal from appellant claimant filing notice pursuant to Order 7, rule 13(1) requesting that decision of the High Court should be varied-Whether claimant should have filed Notice of Motion by way of cross-appeal and not by way of intention to vary judgment-Rules of the Supreme Court, Order 7, rule 13(1).
Appeal from the High Court of Lagos.
(1) Notice under Order 7, rule 13(1) applies where a particular point in the appeal of the appellant is being stretched by the respondent who contends for its maintenance but proposes a variation of it if that be the only way by which he could be enabled to retain the judgment. It would seem however, that once a respondent's notice has been given the appellant cannot prevent the respondent having the point raised in his notice argued by withdrawing his (appellant's) notice of appeal.
(2) The notice filed by the respondent in this case clearly sought to retain the judgment but requested a variation of the amount awarded by that judgment. The notice postulated that the approach of the trial Judge to the case was correct, but that his conclusions had adversely affected the respondent who thereby contended that by the same reasoning of the trial Judge he should have received a greater award.
(3) Consequently the Notice filed in this case pursuant to the Provisions or Order 7, rule 13 (1) of the Supreme Court was competent. Therefore the preliminary objection of the Counsel for the appellant must be over-ruled.
(4) The figures which the trial Judge had employed were inferred from the evidence given before him and on any view of the evidence his findings were not unjustified.
(5) The submission that as the trial Judge had regarded the investment method of valuation as unsatisfactory he should have accepted in its entirety the result of the Site Method was untenable as the judge was not bound to do this. It was true that he preferred to Site Method of valuation but it did not therefore follow in consequence that the figures of assessment put forward by the witness Ekpeyong (Site Method) were beyond scrutiny. The trial Judge thought the values ascribed to some properties in the neighbourhood were not realistic as they were too high. He also rightly thought that taking all the relevant factors into consideration the figure of £20 per square yard was a fair assessment on the basis of the evidence before him.
Appeal and cross-appeal dismissed.
Cases referred to:
National Society for the Distribution of Electricity by Secondary Generators v. Gibbs  2 Ch. D. 280.
Cavander's Trusts  16 Ch. D. 270.
Roe v. Mutual Loan Fund Limited  19 Q.B.C. 347.
Ralph v. Garrick  11 Ch. D. 873.
Acts referred to:
Public Lands Acquisition Act Sections 15, 17.
Local Government Act.
Rules and Orders referred to:
Rules of the Supreme Court Order 7, rule 13(1).
Appeal from the High Court of Lagos.
Lasuoye for the appellant.
Ajaji for the respondent.
Coker, J.S.C. (delivering the judgment of the court):-The Lagos City Council had appealed against an assessment of monetary compensation made by the Lagos High Court (Omololu, J.) pursuant to an originating summons taken out in virtue of the provisions of the Lagos Local Government Act. The Lagos City Council, now appellant, were the applicants in the court below and Emmanuel Ayodeji Ajayi was the claimant. The property concerned was No. 23 Catholic Mission Street, Lagos. It belonged to the claimant but had been compulsorily acquired by the appellants pursuant to their powers under the Lagos Local Government Act. As the parties could not agree on the amount of compensation to be paid to the claimant the appellants took out the summons asking for a determination by the court of the following question, that is to say:-
"The amount of compensation payable in respect of that house with landed property situate at and known as No. 23 Catholic Mission Street, Lagos and covered by a deed of conveyance dated 24th day of June, 1953 and registered under title No. LO 2339 of the Lands Registry Lagos and which was acquired by the Lagos City Council under and by virtue of the Lagos Local Government Act 1959."
The parties gave evidence at the hearing of the summons and called witnesses and at the end of the hearing the learned trial Judge accepted substantially the valuation given in evidence by the claimant's valuer and decreed that compensation in the amount of £13,640 be paid by the appellants to the claimant as a fair value of the property at No. 23 Catholic Mission Street, Lagos. The judge also ordered that the claimant be paid all the rental profits due on the property at the rate of £950 per annum from the date of acquisition, that is the 17th June, 1964 to the date when the assessed compensation is paid to the claimant.
The Lagos City Council had appealed against this decision complaining of mis-direction by the learned trial Judge in arriving at the conclusions on which he had based his decision. After receiving the notice of appeal the claimant, or rather Counsel on his behalf, filed a notice pursuant to the provisions of the Supreme Court Rules, Order 7, rule 13(1) requesting "that the decision of the court below dated the 6th day of September, 1965, should be varied" and averring in effect that if the learned trial Judge who heard the summons had not erred in law he would have assessed the monetary compensation at £31,415.
It is convenient at this point to allude to a matter which has arisen for determination on this appeal. On the receipt of the notice of intention to contend that the judgment of the court below be varied, learned Counsel for the appellants filed a notice of preliminary objection to the notice of the respondent stating that the contents of the respondent's notice postulated that he was appealing and so he should have come by way of cross-appeal and not by way of notice of intention to vary the judgment. We listened to arguments on the point and then ruled as follows:-
"We shall allow arguments on both the appeal and the notice only for the purpose of hearing the appeal today and would give our ruling on the point now raised in the course of our judgment in the case."
A perusal of the notice filed by the respondents makes it plain that like the present appellants the respondent is as well dissatisfied with the terms of the judgment and will like the judgment in the case to be in the terms suggested in his notice. The point therefore that arose for determination on the preliminary objection is whether the provisions of Order 7, rule 13(1) are designed to meet a situation which is tantamount to a complete reversal of the judgment already given or the employment of the rule is circumscribed with in the bounds of what is strictly speaking a mere variation.
Order 7, rule 13(1) of the Supreme Court Rules reads as follows:-
"13. (1) It shall not be necessary for the respondent to give notice of motion by way of cross-appeal; but is a respondent intends upon the hearing of the appeal to contend that the decision of the court below should be varied, or that it should be affirmed on grounds other than those relied on by that court he shall within one month after service upon him of the notice of appeal cause written notice of such intention to be given to every party who may be affected by such contention, whether or not such party has filed an address for service. In such notice the respondent shall clearly state the grounds on which he intends to rely and within the same period he shall file with the Registrar of the court below six copies of such notice of which one shall be included in the record, and the other five copies provided for the use of the Judges."
There can be no doubt that the rule dispenses with the filing of a notice of motion by way of cross-appeal. It is not easy to understand why this procedure, manifestly unknown in this country, has been introduced into our rules. In the United Kingdom, by virtue of provisions contained in the rules of court, notice of motion is necessary in order to initiate appeals in certain circumstances (see Order 55, Annual Practice, 1967).
No provision other than Order 7, rule 13(1) appears in the rules of the Supreme Court for bringing a cross-appeal, although it is proper to regard any appeal by a dissatisfied respondent as a cross-appeal. This involves, prima facie, that an appeal has already been filed since it is only in that context that one conceives of a respondent at all. On the other hand, there is nothing in the rules of court depriving a respondent of the right to appeal against a decision with which he is dissatisfied. To do this would be tantamount in our view to an infringement of the clear provisions of section 117(6) of the Constitution of the Federation which specifically reserves the right of appeal prescribed therein. Without doubt occasions must and do arise on which a respondent may have to appeal against a decision, as where for instance there are several causes of action and he is dissatisfied with the determination of some of them or where, for instance, there are several parties and he desires to contest the decision with respect to some of those parties or where, indeed, he decides to appeal on a decision affecting only one or the other of a number of consolidated actions. A similar situation arises where a respondent desires to challenge the jurisdiction of the court.
Advertising now to Order 7, rule 13(1), we think there are three characteristics of this rule which require closer attention; firstly, the rule states that the notice of the respondent should be filed within one month of receiving the notice of appeal "if a respondent intends upon the hearing of the appeal to contend that the decision of the court below should be varied or that it should be affirmed on grounds other than those relied on by that court." Undoubtedly the point or points which the notice contemplates must have arisen from the appeal filed otherwise it is inconceivable that the respondent would be required to wait and receive the appellant's notice before proceeding by virtue of Order 7, rule 13(1). Where for instance a respondent proposes to contest the appeal with respect to a different cause of action other than the one on which the appeal is based or against another of the parties who had not appealed or other similar circumstances, the respondent has to file a substantive appeal or cross-appeal. As Lindley, M.R. observed in National Society for the Distribution of Electricity by Secondary Generators v. Gibbs  2 Ch. 280 at p. 287:-
"The 'appeal' referred to in rule 6 of Order LVIII is in this case the appeal by the defendant on her counter-claim; and reading the rule strictly and properly, the cross-notice could only be available in connection with the appeal from the order made on the counter-claim, and ought no to have been extended to a totally distinct matter-that is to say, to the relief sought by the plaintiffs on their claim. But as I have said before-and I am prepared to adhere to it-the circumstances of this case were so special by reason of the course taken, to which I have alluded, that we think it only just to treat the cross-notice as a cross-appeal, and we do so accordingly."
See also in this connection in re Cavander's Trust (1881) 16 Ch. D. 270.
Another characteristic of Order 7, rule 13(1) is that it is applicable only where the respondent intends to retain the judgment but at the same time wants it varied; so where a respondent intends for instance to dispute the jurisdiction of the court of trial or to contest the competency of the entire proceedings or to maintain the absence of a fundamental prerequisite, it seems he cannot come under this rule. In that case he has to file a substantive cross-appeal. The basis for this is clear for a man cannot at the same time obtain an advantage by maintaining a particular stand-point and then seek to discard that same stand-point whilst keeping the advantage. As Lord Esher, M.R. observed in Roe v. Mutual Loan Fund Limited (1887) 19 Q.B.D. 347 at p.350:-
"I base my judgment on this, that the bankruptcy proceeded on the basis that the bill of sale was valid, and that this was with the knowledge and acquiescence and for the benefit of the plaintiff, who thereby affirmed that the bill of sale was valid, and cannot now be heard to say that it was invalid in order to obtain a further advantage. I cannot therefore agree with the judgment appealed from, and the appeal must be allowed."
Lastly, the rule requires that the notice under it should be given to "every party who may be affected by such contention whether or not such party has filed an address for service." Thus it will be seen that the notice envisages a variation which may affect not only the particular appellant but also others as well who may not have appealed in the first instance. It is not easy-to draw a clear-cut line of demarcation between degrees of variation and it is not impossible for an order of variation to affect the interests of other parties to the extent of virtually reversing the judgment which they had obtained. See Ralph v. Garrick (1879) 11 Ch.D. 873. Manifestly therefore the rule itself envisages cases in which although a cross-appeal is desirable yet the notice under Order 7, rule 13 (1) may as well be appropriate.
The result of the enquiry therefore is that the notice under Order 7, rule 13 (1) applies where a particular point in the appeal of the appellant is being stretched by the respondent who contends for its maintenance but proposes a variation of it if that be the only way by which he could be enabled to retain the judgment. It would seem however that once a respondent's notice has been given, the appellant cannot prevent the respondent having the point raised in his notice argued by withdrawing his (appellant's) notice of appeal. See in Re Cavander's Trusts, supra. The notice filed by the respondent in this case clearly seeks to retain the judgment but requests a variation of the amount awarded by that judgment. The notice postulates that the approach of the learned trial Judge to the case was correct, but that his conclusions had adversely affected the respondent who thereby contends that by the same reasoning of the learned trial Judge he should have received a greater award. We hold therefore that the notice filed in this case, pursuant to the provisions of Order 7, rule 13(1), is competent. We therefore overrule the preliminary objection of learned Counsel for the appellant.
On the merits the matters discussed in this appeal fell within a rather narrow compass. We have already referred to the substance of the originating summons. The appellants requested the court to assess the compensation to be paid by them for the compulsory acquisition of the property concerned. The respondent asked for a sum of £34,190 as compensation due in respect of the whole of his interest in the property. The appellants' valuer, a Mr Sawyer who was also at the material time the Acting Chief Federal Lands Officer in the Ministry of Lagos Affairs, described the property concerned and its condition at the time of acquisition as follows:-
"I inspected the property in March 1964. It was a two-storey building with two out-buildings, kitchen, toilet and stores. On the ground floor were 6 bed-rooms used as a Party Office, etc.
At the time of my inspection the property was in a bad state of both structural and decorative repair. There were two staircases, which were rickety. The roofing was very poor and most of the window panes were broken. Cracks all over the building. In my estimation the building was nearing the end of its useful life. The leasehold interest at that time had 9 years to run with an option of 15 more years."
He then estimated the gross income from the property at £732 per annum and suggested that taking the rateable value of the property as £105 per annum and allowing for disbursements, repairs, etc. and using nine years as the useful life of the house, he would arrive at the figure of £1,485 as the appropriate value of the property. When he was cross-examined to show that his valuation had related only to the house on the land and had been silent with respect to the land on which the building stood, he replied that "it is not correct that in assessing valuation of a building and property for acquisition purposes the value of the land is taken into consideration." The respondent, then claimant in the High Court, also called a professional valuer, one John Ekpenyong. He described his own method of approach as follows:-
"In estimating the value of a piece of land, I would first note (1) the rent of the adjoining property in the neighbourhood (2) value of site based on values of purchases of neighbouring properties."
He then testified that from his experience in the valuation of properties in the area concerned he thought the value of land in the area would be approximately £90 per square yard and by working this figure into the number of years purchase according as the time available to the respondent, he reckoned that the capital value of the property should be £34,140. The respondent himself then testified claiming an amount of £34,190 and an annual rental actually received by him of £950.
In a reserved judgment, Omololu, J. pointed out that the respondent had immediately before the acquisition held the property on lease "for a term of twenty years plus an option to renew for another fifteen years" and that the professional valuer who had testified for the appellants conceded that the best evidence of value is the competitive market price prevailing in the area concerned at the material time. The learned trial Judge then referred, according as he was directed in the addresses of Counsel, to the provisions of sections 15 and 17 of the Public Lands Acquisition Act, Cap. 167 and concluded that he would prefer an assessment based on the prevailing market price in operation in the area concerned at the time of the acquisition. He rejected the valuation made by Mr Sawyer on behalf of the appellants and adjudged that £20 per square yard was a fair rate of valuation for properties in the area of the acquisition involved. As the property concerned is some 680 square yards, the learned trial Judge arrived at the figure of £13,640 as the value of the property. He then fixed £13,640 as the amount of monetary compensation to be paid to the respondent and ordered that rent at the rate of £950 per annum be paid to him as well from the date of acquisition to the date of payment to the respondent.
The appellants have now appealed against this judgment and the respondent has also filed a notice under Order 7, rule 13(1) as stated before. For the appellants it was argued, firstly that the judge mis-directed himself by making an order for the payment of rent to the respondent and, secondly, that the judgment was against the weight of evidence because the respondent would not submit his rent receipts for inspection by the appellants and the building concerned was in an obvious state of disrepair. The first complaint is, in our view, answered and concluded by section 17 of the Public Lands Acquisition Act. We see no room for holding that the learned trial Judge wrongly exercised the powers which he undoubtedly possessed by virtue of that section. The second complaint seems to us to be completely misconceived. The figures which the learned trial Judge had employed were inferred from the evidence given before him and we think that on any view of the evidence his findings are not unjustified. No other point of substance was raised on the appeal and we would therefore dismiss it as lacking in any merits whatsoever.
The respondent however has filed a notice asking for an amount of £31,415 to be paid him as the monetary compensation for the property acquired. Learned Counsel appearing for the respondent submitted that as the learned trial Judge has regarded the investment method of valuation adopted by the witness Sawyer, both in his evidence and in his valuation report, as unsatisfactory, the court should have accepted in its entirety the result of the site method employed by the Witness Ekpenyong.
We do not ourselves think that the judge was bound to do this. It is true that he preferred the site method of valuation but it does not therefore follow in consequence that the figures of assessment put forward by the witness Ekpenyong are beyond scrutiny. The learned trial Judge thought the values ascribed to some properties in the neighbourhood were not realistic as they were either too low or too high. He also thought, and rightly so in our view, that taking all the relevant factors into consideration the figure of £20 per square yard was a fair assessment on the basis of the evidence before him.
It was also complained on behalf of the respondent that in his consideration of the value of the property in question, the learned trial Judge had wrongly referred to a judgment involving the property, also compulsorily acquired, known as No. 38 Igbosere Road, Lagos. It is correct to say that the judgment involving the property No. 38 Igbosere Road was neither pleaded nor properly produced in evidence before the learned trial Judge. We are however unable to see how the complaint affects the merits and the justice of this case as we are of the view that no aspersion would have been passed on the judgment in that case if it had dished out higher figures than were being contemplated in the present proceedings.
In the end and for the reasons already given we think that neither the appeal nor the cross-appeal succeeds. They are both dismissed and we make no order for costs in this Court in the circumstances.
Appeal and Cross-appeal dismissed.