LEGALPEDIA ELECTRONIC CITATION: LERSC. 344/2008
Areas Of Law:
Appeal, Court, Damages, Land Law, Law Of Evidence, Practice And Procedure
Summary Of Facts
The Plaintiff/Respondent commenced the suit at the Federal High Court, Port Harcourt in a representative capacity for themselves and on behalf of members of 5 family units or villages constituting the Obite Community in Ogba/Egbema/Ndomi Local Government Area of River State claiming amongst other reliefs the sum of N2.5 billion representing compensation for the acquisition of the Respondents’ land measuring approximately 28.685 hectares(286.840 sq meters) by the Appellant Company for the establishment of a Gas plant at the community.
At the conclusion of trial, the court entered judgement in favour of the Respondents in the sum of N25, 000,000.00(Twenty Five Million Naira). An appeal to the Court of Appeal, affirmed the judgement of the trial court with cost assessed at N10, 000.00 against the Appellant. The Appellant have appealed to this court on the issue of jurisdiction of the trial court and the Court of Appeal on the grounds that the Plaintiffs now Respondents are non-juristic persons and that they do not represent the members of the 5(five) villages or families that constituted Obite Community of Ogba/Egbema/Ndoni Local Government Are of Rivers State of Nigeria.
Issues For Determination
Ø Were the learned Justices right in law in holding that the pleadings and evidence led by the Appellant are to the effect that the land in dispute was acquired by the Government?
Ø Were the learned Justices right to affirm the judgment and award made by the trial judge in favour of Respondents –
(i) whose entitlement thereto was not proved?
(ii) who had received and acknowledged the compensation paid as full and final payment?
(iii) whose claim was not proved?
(iv) who did not plead and prove transfer of customary right of occupancy or Interest in land to appellant?
(v) transfer of Respondents’ interest In land to/Appellant was not in issue?
Ø Were the learned Justices right to affirm a judgment and an award of damages made to members of a non juristic villages and on the basis and evidence that the land is owned by members of 5 families when:
(i) the action is incompetent and void ab initio?
(ii) evidence did not support claim by five villages?
COMPULSORY ACQUISITION OF PROPERTY – PRE-REQUISITE FOR THE EXERCISE OF THE RIGHT OF THE GOVERNMENT ON COMPULSORY ACQUISITION OF PROPERTY
“It is pertinent to state that this court by its decision in the case of Provost Lagos State College of Education & ors. V. Kolawole Edun & ors. 2004 6 NWLR (Pt.870) page 476 at 509 decided that the Government has the constitutional right to acquire compulsory property on payment of compensation by virtue of section 40 of the 1979 Constitution, now section 44(1), (a) & (b) of the 1999 Constitution”. PER C.B.OGUNBIYI, J.S.C
COMPULSORY ACQUISITION OF PROPERTY – STATUTORY PROVISION ON THE COMPULSORY ACQUISITION OF PROPERTY – SECTION 44(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
(l) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things,
(a) requires the prompt payment of compensation therefore; and
(b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.” PER C.B.OGUNBIYI, J.S.C
ACQUISITION OF PROPERTY – PRE REQUISITE FOR THE COMPULSORY ACQUISITION OF PROPERTY
“In interpreting section 44(1) of the Constitution and also re-stating its mandatory nature, their Lordships at the Court of Appeal had this to say at pages 17 and 18 of their judgment.
“The provisions of the said section (supra) are self explanatory and one does not need any aid to interpret same. To acquire movable property or interest in any immovable property prompt payment of compensation must be made and that any person claiming such compensation has unlimited access to a court of law or tribunal or body having jurisdiction in that part of Nigeria”
It is pertinent to read from the foregoing section again that no movable property or any interest in immovable property shall be taken possession of compulsory without payment of compensation. See Kukoyi V. Adesma (1999) 10 NWLR (Pt 624) 63 at 65. PER C.B.OGUNBIYI, J.S.C
BURDEN OF PROOF – WHETHER THE WEAKNESS OF THE DEFENCE CAN AVAIL A PLAINTIFF IN PROVING HIS CASE
“The general rule is well restated’ that the plaintiff should succeed on the strength of his own case. However, it is also in point that a plaintiff can take advantage of the weakness of the defence. See the view held by this court in the case of Akinola & Ors V. Olowu & 2 Ors 1962 1 All NLR (Pt 2) pg.224″. PER C.B.OGUNBIYI, J.S.C
AWARD OF GENERAL DAMAGES – EXERCISE OF THE COURT’S DISCRETION IN AWARDING GENERAL DAMAGES
“It is an established principle of law that in cases where a party is demanding for or claiming general damages, the court awards same at its discretion. See the decided cases of Akinterinwa V. Oladunjoye (2000) 1 NWLR (Pt 659) 93 at 115; UBN Plc V. Ikwe (2000) 3 NWLR (Pt. 646) 223 at 237; Yalaye Amaye V. AREC Ltd. (1990) 4 NWLR (Pt. 145) 422 @ 451 and Osuji V. Isiocha (1989) 3 NWLR (Pt. Ill) 623 © 640“. PER C.B.OGUNBIYI, J.S.C
AWARD OF GENERAL DAMAGES – EXTENT OF THE POWER OF A COURT IN EXERCISING ITS DISCRETION IN GRANTING AN AWARD OF GENERAL DAMAGES
“It is pertinent to re-iterate herein that in the award of General Damages, a wide spread power is given to the court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching and contrary to the contention held by the appellant herein. The measure of general damages is awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of.
Unlike special damages, it is generally incapable of exact calculation. See the following authorities of:-Federal Mortgage Finance Ltd V. Hope Effiong Ekpo (2004) 2 NWLR (Pt. 865) 100 at 132, Dumez V. Ogboll (1972) 2 SC 196 and Wasa V. Kalia (1978) 3 SC 21. PER C.B.OGUNBIYI, J.S.C
EXERCISE OF JUDICIAL DISCRETION – GROUNDS FOR QUESTIONING AN EXERCISE OF JUDICIAL DISCRETION
“It is trite law that judicial discretion is not questioned by an appellate court when it is not exercised wrongly or perversely. PER C.B.OGUNBIYI, J.S.C
REPRESENTATIVE CAPACITY – PRECONDITION FOR INSTITUTING A SUIT IN A REPRESENTATIVE CAPACITY
“The law is trite that when a group of class of persons sought to be represented in a suit are easily Identifiable and have common purpose as in the Instant case, they can institute a suit in a representative capacity to seek remedy in a court of law”. PER C.B.OGUNBIYI, J.S.C
CONCURRENT FINDINGS OF LOWER COURTS – ATTITUDE OF THE SUPREME COURT ON THE INTERFERENCE WITH CONCURRENT FINDINGS OF LOWER COURT
“It is noted by me, that in this appeal there exist concurrent findings of both the trial Federal High Court (the trial court) and the Court of Appeal (the lower court) both of which favoured the present respondents. I wish to restate the attitude of this court of refraining from interfering or disturbing concurrent findings of two lower courts except on special or exceptional circumstances.” PER A.SANUSI, J.S.C
EVALUATION OF EVIDENCE- WHETHER AN APPELLATE COURT IS EMPOWERED TO SUBSTITUTE ITS OWN VIEWS FOR THOSE OF A TRIAL COURT
“It must be stressed here that an appellate court does not have the power to substitute its own views for those of trial court especially when the issue relates to credibility of witnesses, since it is the trial court only that had this opportunity of seeing, hearing and observing the demeanor of such witness or witnesses who testified before him. See Bamgboye vs University of Ilorin & Anor (1999) 10 NWLR (pt 622) 290″. PER A.SANUSI, J.S.C
Statutes referred To
Constitution of the Federal Republic of Nigeria 1999(as amended)
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