COMMISSIONER OF LANDS AND HOUSING, WESTERN STATE OF NIGERIA v. OSHODI FAMILY AND OTHERS IN RE: AFARIOGUN ASHIYANBI FAMILY (IK/240/65) [1970] 10 (20 March 1970);

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  • COMMISSIONER OF LANDS AND HOUSING, WESTERN STATE OF NIGERIA v. OSHODI FAMILY AND OTHERS IN RE: AFARIOGUN ASHIYANBI FAMILY (IK/240/65) [1970] 10 (20 March 1970);

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IN THE HIGH COURT OF NIGERIA

ON FRIDAY, THE 20TH DAY OF MARCH 1970

IK/240/65

BETWEEN

COMMISSIONER OF LANDS AND HOUSING, WESTERN STATE OF NIGERIA ........................................... APPLICANT

AND

OSHODI FAMILY AND OTHERS ..................................................... CLAIMANTS

IN RE: AFARIOGUN ASHIYANBI FAMILY ............................................ APPLICANTS

BEFORE: Adeoba, J.

 

Application to be joined as claimants under the Public Lands Acquisition Law.

This application was brought by the applicants for an order that the family of the applicants be joined as a claimant in this claim.

The application was brought under Order 4, rule 5(1) of the High Court (Civil Procedure) Rules.

The applicants deposed to the fact that an oral claim was made to the Land Officer through an interpreter in 1959, and that the Land Officer advised that they should wait until the Provincial Surveyor surveyed the land; that after waiting for period of two years the Land Officer was contacted and a formal claim in writing was made in 1962, which was over four years after the publication of the Gazette Notice.

Counsel for the applicants submitted that the applicants have complied with section 19(2) of the Public Lands Acquisition Law by lodging a claim orally with the Land Officer within a period of twelve months from the date of the Acquisition Notice.

Counsel for the 1st, 2nd and 13th Claimants opposed the application and submitted, inter alia, that (I) the application cannot be brought under the Order 4, rule 5(1); (2) the application should have been brought under section 10 of the Public Lands Acquisition Law.

 

HELD:

(1)     The interpretation of section 10(2) of the Public Lands Acquisition Law is that no Court shall entertain any claim to any estate, or right in respect of which a notice has been served and published in the Gazette in accordance with section 9 of that law except as provided in section 20 of the Public Lands Acquisition Law.

(2)     Section 10(2) puts a temporary bar to the claim of the applicants until the occurrence of the event stated in section 20(1) which is the final determination of the claim when that bar is removed for a period of twelve months from the date of the final judgment. Consequently the court is barred from entertaining the claim of the applicants.

(3)     The rule of interpretation is that where any section of an Act or Law passed subsequently to the enactment of the rules of Court is inconsistent with any of the provisions of the rules, the Act or Law must prevail unless it is so clearly passed alio intuiti that the two may be allowed to stand. It had not been shown that section 10(2) of the Public Lands Acquisition Law was passed with the intention that it should stand or be read along with Order 4, rule 5(1) of the High Court Rules.

(4)     If this order were made and the applicants joined their claims to compensation would have to be entertained with the claims of the other claimants and this would be contrary to the provisions of section 10(2) of the Public Lands Acquisition Law which is considered mandatory.

Application refused.

 

Laws referred to:

Public Lands Acquisition Law, Lagos, Sections 10(2); 20(1)

 

Orders and Rules referred to:

High Court (Civil Procedure) Rules Order 4, rule 5(1).

 

APPLICATION TO BE JOINED AS CLAIMANTS UNDER THE PUBLIC LANDS ACQUISITION LAW.

 

Ajayi, for the Applicants.

Morohundiya, for the 1st and 13th Claimants.

Doherty (Miss), for the 2nd Claimant.

 

Adeoba, J.:-This is an application by Nosiru Afariogun, Jinadu Faronbi and Ambali Afariogun for themselves and on behalf of the Afariogun Ashiyanbi Family for an order that the Afariogun Ashiyanbi Family be joined as a claimant in this claim.

The application is brought under Order 4, rule 5(1) of the High Court (Civil Procedure) Rules Lagos State which reads thus:-

5        (1)     "If it shall appear to the court, at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject matter, or the suit or who may be likely to be affected by the result, have not been made parties, the court may adjourn the hearing of the suit to a future day, to be fixed by the court, and direct that such persons shall be made either plaintiffs or defendant in the suit, as the case may be. In such case the court shall issue a notice to such persons, which shall be served in the manner provided by the rules for the service of a writ of summons or in such other manner as the court thinks fit to direct and on proof of the due service of such notice, the persons served, whether he shall have appeared or not, shall be bound by all proceedings in the cause.

Provided that a person so served, and failing to appear within the time limited by the notice for his appearance, may at anytime before judgment in the suit, apply to the court for leave to appear and such leave may be given upon such terms (if any) as the court shall think fit."

Nosiru Afariogun who deposed to the affidavit in support of this motion deposed to the facts that he made an oral claim to the Land Officer through an interpreter early in 1959, and that the Land Officer advised him to wait until the time when the Provincial Surveyor would go on the land to survey it when the land would then be surveyed free of charge for the family.

After waiting for about two years he contacted the Land Officer at Ikeja who advised him to prepare a survey plan and to engage the services of a Solicitor in order to pursue the family claim. He instructed a Solicitor Mr G.A. Ogunro who made a formal claim in a letter dated the 29th day of August, 1962, to which the Land Officer replied in a letter dated the 6th day of September, 1962, and exhibited NA1, which is over 4 years after the gazette Notice was published.

It is the submission of Mr Ajayi that the applicants have complied with Section 10(2) of the Public Lands Acquisition Law by lodging a claim orally with the Land Officer at Ibadan early in 1959, since the land was compulsorily acquired by the government in 1958, and 12 months had not elapsed before the oral application was lodged with the Land Officer. It is also his submission that it has been shown that the land which is the subject matter of this claim includes the Afariogun Ashiyanbi Family land.

Mr Morohundiya, for the 1st and 13th claimants and Miss Doherty, for the 2nd Claimant opposed the application. Mr Morohundiya submitted that the application cannot be brought under the Order 4, rule 5(1). The application, he submitted, should have been brought under section 10 of the Public Lands Acquisition Law. He also submitted that sections 5, 8, and 9 of the Public Lands Acquisition Law lay down the procedure that must be followed when giving notice.

Miss Doherty associated herself with the submission of Mr Morohundiya and submitted further that paragraphs 6, 7 and 8 of the affidavit sworn to in support of the application ought to be struck out as hearsay because the facts contained therein which were interpreted to the deponent could only be deposed to by the interpreter who did the interpretation.

But for the provisions of section 10(2) of the Public Lands Acquisition Law Western Nigeria this application would have been granted and an order made joining the applicants if the court is satisfied that the land shown in the plan exhibited in the affidavit as exhibitNA2 is part of the land the subject matter of this claim, and if it is also satisfied that the parties are likely to be affected by the result of this claim.

Section 10(2) of the Public Lands Acquisition Law Chapter 109 reads thus:-

Section 10(2) "Subject to the provisions of section 20 no claim to any estate, interest or right in or to any Lands in respect of which a notice has been served and published in the Gazette in accordance with section 9, or to any compensation or rent in respect of any such estate, interest or right, made after the expiration of twelve months from the publication of the notice, shall be entertained by any public officer whose duty it is to receive such claims or by any court."

By these provisions of section 10(2) of the Public Land Acquisition Law Western Nigeria the court is barred from entertaining the claim of the applicants.

Section 10(2) of the Law puts a temporary bar to the claim of the applicant until the occurrence of the event state in section 20(1) which is the final determination of the claim when that bar is removed for a period of 12 months from the date of the final judgment.

Section 10(2) of the Public Land Acquisition Law Western Nigeria when interpreted means that no Court shall entertain any claim to any estate, interest, or right in respect of which a notice has been served and published in a Gazette in accordance with section 9 of that Law twelve months after the expiration of the date specified in such notice except as provided in section 20 of the Public Lands Acquisition Law.

The provisions of Order 4, rule 5(1) in my view is inconsistent with the provisions of Section 10(2) of the Public Lands Acquisition Law of Western Nigeria.

The rule of interpretation is that where any Section of an act or Law passed subsequently to the enactment of the rules of court is inconsistent with any of the provisions of the rules the Act or Law must prevail unless it was so clearly passed alio intuiti that the two may be allowed to stand. It has not been shown that section 10(2) of the Public Lands Acquisition Law was passed with the intention that it should stand or be read along with Order 4, rule 5(1) of the High Court Rule Lagos State.

It is my view that if this order is made and the applicants are joined their claims to compensation will have to be entertained with the claims of the other claimants and this will be contrary to the provisions of section 10(2) of the Public Lands Acquisition Law which I consider mandatory.

To allow this application will tantamount to my not taking cognizance of the provisions of section 10(2) of the Law.

It is my view that the Land Officer who refused to take further step after the letter exhibit NA1 acted in accordance with the provisions of the Law.

From the foregoing, the application is dismissed.

ODUNTAN: I ask for costs.

OLUNWA: I ask for costs in respect of the 1st and 13th Claimants.

KING: We have been brought to court; we ask for costs.

ADEBO: I leave the question of costs to the discretion of the court.

AJAYI: I submit that this is a case in which the court should exercise its discretion and not award costs. From the findings, it appears that the court has not held that we did not make out oral application within the twelve months provided by the statute.

COURT: The applicants will pay costs which I assessed at 5 guineas to the 1st and 13th Claimants and 5 guineas to each of the applicant, the 2nd and 6th Claimants.

Application refused.