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IN THE HIGH COURT OF BENUE STATE

ON TUESDAY, THE 12TH DAY OF JUNE 1979

JD/4A/1970

BETWEEN

N.E.S.C.O. Limited ............................................. APPELLANT

AND

PAUL GYANG ................................................. RESPONDENT

BEFORE: Bate, S.P.J., Jones, J.

 

Paul Gyang was awarded £57.15s.0d. in the District Court as compensation for damage to his crops by appellant company. On appeal to the High Court, a preliminary objection was taken by respondent that since it was agreed that appellant company had acted and were liable to pay compensation under the Wayleaves Licences Law and since by section 8(2) of that Law the determination of the amount of compensation payable by a court exercising jurisdiction in the area concerned shall be final, and since the District Court was such court, then there was no right of appeal therefrom in such a case to the High Court and the High Court had no jurisdiction to hear this appeal. Counsel for appellant company replied that he withdrew his original agreement that his client had acted under the Wayleaves Licences Law.

The High Court considered the objection as originally put, and also considered whether the Federal Military Government (Supremacy and Enforcement of Powers) Decree, 1970 affected this issue.

 

HELD:

(1)     The Federal Military Government (Supremacy and Enforcement of Powers) Decree, 1970 does not preclude the High Court from considering the validity of a provision of the Wayleaves Licences Law, because that Decree prevents courts from considering the validity of Decree and Edicts only, not of Laws.

(2)     Section 31(1) Constitution of the Federation confers a right of access to the High Court for the determination of compensation payable on the acquisition of a right or interest in land.

(3)     This claim is a claim for compensation for the compulsory acquisition of a wayleave to carry electricity over respondent's land, which is a right in land. Section 31(1) (above) therefore applies.

(4)     The right of access to the High Court conferred by section 31(1) is satisfied if there is a right of appeal, and is not confined to a right of trial at first instance.

(5)     But section (2) Wayleaves Licences Law purports to bar a right of appeal from the determination of such case in a court of lower jurisdiction than the High Court. Therefore, section 8(2) is inconsistent with the said section 31(1) and to this extent is invalid.

(6)     The said section 8(2) is also to the same extent inconsistent with section 53(1) of the State Constitution which also confers a right of appeal from a subordinate court to the High Court, and invalid for this reason also.

(7)     Finally, section 8(2) Wayleaves Licences Law is wholly invalid since it is inconsistent with section 117 of the Constitution of the Federation which confers a right of appeal from the High Court to the Supreme Court.

(Editor's note: The Wayleaves Licences Law preceded the Constitutions referred to in this ruling by one year: October, 1962 to 1963. The Provisions of section 8(2) Wayleaves Licences Law were not, therefore, invalidated by these constitutional provisions at the date of commencement of the Law).

Preliminary objection over-ruled.

 

Acts referred to:

Licences Law, Section 8(2)

Federal Constitution Sections 31, 31(1)(b) and 117.

Benue-Plateau State Constitution, Section 53

 

Decrees referred to:

Constitution (Suspension & Modification) Decree, 1966.

Federal Military Government (Supremacy & Enforcement of Powers) Decree, 1970.

 

Fiebai, for the appellant company

Oyetunde, for the respondent.

 

Bate, S.P.J.:-Delivering the ruling of the court: The respondent instituted proceedings in a District Court to recover £57.15s.0d. damages for injury to the crops on his farm by the appellants. The appellants conceded that they were bound to pay compensation but contended that the value of the damaged crops was only 8s.7d. The learned District Judge gave judgment for the respondent for the sum claimed. The appellants have appealed to the High Court.

The respondent took a preliminary objection that no appeal lies to the High Court in this case. He contends that the dispute is governed by the Wayleaves Licences Law and notably by section 8(2). The latter provides that, "Where a dispute arises as to the amount of compensation payable such amount shall be determined by a court exercising jurisdiction in the area concerned and such decision shall be final."

For the appellants it was at first conceded that the Wayleaves Licences Law applies but later it was said that this Law does not govern the case. The proceedings in the District Court were in the nature of an action for damages for a tortious act.

At this stage we ourselves felt that we must consider whether section 8(2) of the Wayleaves Licences Law was valid in view of section 31 of the Federal Constitution and section 53 of the Benue-Plateau State Constitution and whether we have jurisdiction to hear his appeal.

At our invitation learned State Counsel have appeared before us as amici curiae to assist us in the solution of these questions. We are indebted to them for a most helpful argument.

Before State Counsel addressed us, Mr Feibai for the appellants withdrew his concession that the Wayleaves Licences Law applies. He claimed that the appellants acted upon the authority of an agreement dated the 13th October, 1935. between the appellants and the Officer administering the Government of Nigeria and exhibited to the District Court. He relies notably on Clauses 5, 9, and 10.

Mr Oyetunde for the respondent objected that the appellants should not have been allowed to raise new points or change his ground at that stage.

In the alternative, he contends that, if the Wayleaves Licences Law does not apply, the appellants had no right to go onto the respondent's land.

We think that no injustice was done by allowing Mr Fiebai to address the court further since Mr Oyetunde was given an equal opportunity to reply or to ask for an adjournment to enable him to consider the appellants' contentions.

We have first considered whether the Constitution (Suspension and Modification) Decree, 1966, or the Federal Military Government (Supremacy and Enforcement of Powers) Decree, 1970, preclude us from considering the validity of section 8(2) of the Wayleaves Licences Law. We have come to the conclusion that they do not. The effect of the latter enactment is to prevent courts from considering the validity of a Decree or Edict. But the Wayleaves Licences Law is neither a Decree nor an Edict. Therefore, we may properly consider the validity of section 8(2) of the Law-

We have come to the conclusion that section 8(2) of the Wayleaves Licences Law, in so far as it purports, to make the decision of the trial Court final, is invalid. The reasons are that it is inconsistent with the Federal Constitution section 31(1)(b) and 117 and also with section 53 of the State Constitution.

With regard to section 31(1)(b) of the Federal Constitution the record of appeal shows that there was compulsory acquisition of a right or interest in land, that is to say a wayleave of right to carry electricity over the respondent's land and to put up poles on his land for that purpose. We find that the respondent's claim was in substance a claim for compensation. Section 31(1)(b) confers on the respondent a right of access to the High Court for the determination of the amount of compensation to which he may be entitled. We have not been able to discover any guidance whether the right of access confers a right to come to the High Court in the first instance or whether a right to appeal to the High Court is enough to satisfy the section. The expression, right of access, is not a term of art but is capable of a wide range of meaning. In the absence of any direction to the contrary in the Constitution, we are not prepared to restrict its meaning to access at first instance. We cannot see that any injustice is likely to be done if there is access on appeal to the High Court. The effect then of section 31(1)(b) is to give a party claiming compensation for compulsory acquisition of his property or of a right or interest in such property a right of access, either direct or by way of appeal, to the High Court. In the present case it is not the person claiming compensation who seeks access. But this does not alter the fact that section 8(2) of the Wayleaves Licences Law purports to deprive a person claiming compensation in a court of lower jurisdiction than the High Court of his right of access to the High Court. To this extent section 8(2) is inconsistent with section 31(1)(b) and is invalid.

With regard to section 117 of the Federal Constitution, this confers a right of appeal from the High Court to the Federal Supreme Court. Section 117(2)(a) gives an appeal as of right in civil proceedings before the High Court sitting at first instance. Consequently, if the present case had been heard at first instance in the High Court, section 8(2) of the Wayleaves Licences Law would have purported to do away with a right of appeal conferred by section 117(2)(a) and for that reason would have been invalid.

Section 8(2) is also inconsistent with section 53(1) of the State Constitution which confers a right of appeal as of right to the High Court from a subordinate court.

We, therefore, over-rule the respondent's preliminary objection that the decision of the trial Court was final and that no appeal lies to the High Court.

Preliminary objection over-ruled.