Expropriatory acquisitions and enforcement of judgment in Nigeria
Against the backdrop of the recent execution of the Supreme Court decision covering a vast area of 398 Acres of Land as delineated on Survey Plan No CK/LS/272 lying and being at the Ogba/Agidingbi/Alausa Axis of Ikeja, Lagos State being thereby the culmination of a 42 old Legal tussle instituted in 1977 in Suit No ID/216/77L, it has become imperative to holistically examine the salient emergent legal issues surrounding the acquisitive rights of governments viz–a– viz the enforcement of judgment and reform initiatives in our body of adversarial jurisprudence.
To put matters in proper historical perspective, clarity and context, the case of the judgment creditors, the Akinole and Oshiun families of Ogba, Ikeja, was that the judgment debtors, the Mogaji and Saka families of Ogba were their customary tenants under Yoruba Native Laws and Customs. They therefore sought a forfeiture of the customary tenancy as a result of the failure and refusal of the customary tenants to accord recognition to the over–lordship of the land owners vide the performance of the requisite obligation of paying tributes to the Akinole and Oshiun Families.
Justice B. Martins (of blessed memory) on the 19th day of August, 1983 in a considered judgment after trial decided in favour of the aforesaid judgment creditors. The trial court however instructively remarked further in the judgment as follows: “In the present case, the defendants (being the Mogaji and Saka Families) have not put up any defence to the action of the plaintiff. I am satisfied that they had notice of the present action in court” – the implication of these foreboding remarks is all too telling and obvious in its ominous portentousness and grim significance as shall later be revealed in this piece.
The case of the Lagos State Government as gleaned from the judgment of the Court of Appeal in CA/L/649M/06 dismissing her application of 5/10/06 for leave to appeal against the aforesaid judgment of Justice Martins was that the parcel of land the subject matter of Suit No ID/216/77L forms part of a large tract of land measuring an area of 7,300 Acres north of the airport in Ikeja Division of Lagos State acquired by the LASG in 1969 by Notice of Acquisition published in the Lagos State Government Gazette as Legal Notice No 236 of 14/10/69 and subsequently affirmed by a Vesting Order No 8 of 1976 published in official Gazette No 25, Volume 9 of 18/6/76.
The Lagos State Government thereafter by an Originating Summons approached the Lands Tribunal in Suit No LT/LS/35/89 for a determination of the quantum of compensation payable to all persons and families affected by the Global Acquisition. Whilst some families were indeed paid compensation, the Akinole and Oshiun Families listed as No 131 in the compensation action as it affects Alausa Village (as opposed to Agidingbi Village the very subject of ID/216/77L) were not so paid on account of a counter claim contesting the precise area of land being laid claim to by them. The Mogaji and Saka families were respectively listed as Nos 83 and 84 in the Originating Summons filed in Suit No LT/LS/35/89. It is equally instructive to note that the Lagos State Government by a notice of excision published as notice No 92 in the official Gazette No 15 Vol. 10 dated the 31st day of March, 1977 excised and/or released a portion of the earlier acquired land measuring approximately 14.54 Hectares (about 30 Acres) back to some of the Traditional/Customary claimants. It is not however clear whether the judgment debtor families in ID/216/77L were part of the beneficiaries of the excision exercise. However, by virtue of a notice of withdrawal of excision/revocation published vide a Newspaper advertorial of Monday the 25th day of February, 2008, the Lagos State Government withdrew and consequently revoked the Notice of Excision of all the 14.54 Hectares (about 30 Acres) earlier excised and published in the Gazette No 15 Vol. 10 of 31st March, 1977, affirming thereby the validity and veracity of the 1969 Global Acquisition.
It’s also of substantial consequence to note that there were at least no less than 45 persons and families laying claim to varying and distinct pieces and parcels of land at Agidingbi as enumerated in the Originating Summons filed by the Lagos State Government in Suit No LT/LS/35/89. None of the persons and families listed as claimants in LT/LS/35/89 except the Akinole and the Mogaji families were parties to the foundational suit No ID/216/77L before late justice Martins. There was also no manifest evidence of any appeal whatsoever having been lodged against the judgment in ID/216/77L by any of the 42 other claimants to compensation in LT/LS/35/89.
The Akinole and Oshiun families pursuant to the Judgment in ID/216/77L proceeded by an Originating Summons in suit No ID/923M/1999 to recover possession in tandem with the provision of Order 59 Rule 2 of the Lagos High Court Rules. Judgment for recovery of possession was accordingly entered in favour of the said family by late Justice O. Akerele Ayeni on the 16th day of February, 2000. On the 25/7/2000, execution was levied as evidenced by FORM O dated 28/7/2000 being a Certificate of Execution of Warrant of Possession made under the hand of the then Deputy Sheriff of the High Court restoring the full and peaceable possession of the land covered respectively by Survey Plan No CK/LS/272 and the concurrent judgments in ID/216/77L and ID/923M/99 to the Akinole and Oshiun Families.
The recent execution of the warrant of possession to all intents and purposes was not therefore the very first warrant of possession apparently executed against the disputed subject property. We must also not lose sight of the fact that the propriety, substance and legality of the aforesaid acquisition by the Lagos State Government at no time during the course of the proceedings from the trial to the Apex Court constituted the fulcrum or subject matter of any adversarial disputation, contest or arguments. Its competence and validity was never subjected to any forensic judicial examination, scrutiny or challenge by any party whatsoever thus inevitably accentuating its legality.
Though it would appear that the previous regime of virtually vast and usually limitless control over Land by families, communities and villages is now a well – rested antiquity by virtue of the Land Use Act, Cap 202, LFN 2004, the preservation and retention of the usufructuary and reversionary rights of Customary/Traditional Land Ownership held prior to the enactment of the expropriatory legislations finds judicial confirmation in the Privy council’s decisions in ONISIWO VS. ATTORNEY GENERAL (1912) 2 NLR, AMODU TIJANI VS. SECRETARY OF SOUTHERN NIGERIA (1921) AC 399 and the more recent NATIONAL UNIVERSITIES COMMISSION VS. OLUWO (2001) 3 NWLR (PT.69) PAGE 90. Similarly in a plethora of decided cases not least of which are CSS BOOKSHOPS LIMITED VS. REGISTERED TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE (2006) 11 NWLR (PT.992) 530; GOLDMARK NIGERIA LIMITED VS. IBAFON COMPANY LIMITED (2012) 10 NWLR (PT.1308) 391 AND UDOMA EGBA VS. CHUKWUOGOR (2004) 6 NWLR (PT.869) 382, our appellate courts have expressed little hesitation in protecting the rights of citizens against expropriatory statutes particularly in instances where the overriding public purpose for which the acquisition was made in the first instance had either been overtaken by events or defeated by subsequent occurrences as was decided in GUINNESS (NIG) LTD VS UDEANI (2000) 14 NWLR (PT.687) AT PAGE 388-389.
The natural question which beggers a difficult response is what happens to the several helpless and hapless Nigerians who have over time unknowingly acquired proprietary rights to and in landed properties the subject of prolonged judicial disputations and in this particular respect what becomes the fate of the extant and proprietary rights of “owners” of some 2000 houses/properties involved in the decision the subject matter of this piece. This immutably brings up to the fore the consideration of the salient legal position as between the original parties as well as their privies, assigns and successors – in – title. The Legal appropriateness of whether a Judgment on pleadings against a family can be interpreted to bind or affect the whole community consisting of so many other families is no doubt a matter of subjective consideration though it is not altogether clear whether such judgments can operate as Rex Judicata as against the whole community.
However, the issue of whether a judgment in rem being a solemn pronouncement upon the status of a particular subject matter by a court of competent jurisdiction can be interpreted to bind other persons outside of the immediate parties and their privies to the litigation is patently clear that it does not admit of any ambiguity whatsoever. We must also note that as yet and till date, the primary judgment in ID/216/77L remains extant, subsisting and valid as it has yet be the set – aside, vacated or overturned by any court of competent appellate jurisdiction, 42 years thereafter.
There is no doubt however that in particular view of the supervening quality and overarching supremacy of the decision of the Apex Court over and above all existing ownership titles and subsequent transmissional creations, (statutory or otherwise) in and over the Land mass embraced in the Judgment, titles previously held by a critical mass of innocent Nigerians may unwittingly have now become patently otiose, inchoate and probably ineffectual at least as against the concurrent judgments of the trial and appellate courts. Indeed, whilst Section 287(1) of the 1999 Constitution (as amended) provides as a general rule that “The decision of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and by courts with subordinate jurisdiction to that of the Supreme Court”, the decision of the Supreme Court in the case of CHIEF F. E. BABATOLA VS. OBA ALADEJANA THE ALAWOROKO (2001) 30 WRN PAGE 57 that “It is settled law and practice that the court cannot give a judgment against a person who will be affected by the decision if such a person is not made a party or has no opportunity of defending the suit. The court has no jurisdiction to decide the fate of a person or a matter concerning him when such person is not made a party to the action” – appears to canvass the caveat that there may be extenuating circumstances for a non – party to a judgment to forestall its enforcement on him. We must however be reminded that there are generally two exceptions to the above stated rule as per the holding of the self – same Supreme Court in OSUNRINDE & ORS. VS. AJAMOGUN & ORS. (1992) 7 SCNJ 79 namely that (a) A person who is in privy with the parties to the legal contestation is bound equally with the parties and is thus estopped by the doctrine of rex judicata from contesting the resultant judgment therefrom and (b) A person may have so acted as to preclude himself from challenging the judgment for example by standing idly whilst his rights are being determined in a court of law is estopped by his conduct from contesting the outcome of the judicial decision against his predecessors–in–title.
Thus, it could be surmised without equivocation that all persons and families who derived their title from the Lagos State Government have by virtue of the judgment of the trial court in ID/216/77L of 19/8/83; the judgment of the Court of Appeal in CA/L/649M/2006 of 26/4/07 (to which the Lagos State Government was a party); the Judgment of the Court of Appeal in CA/L/776/2014 of 29/3/19 as well as the Supreme Court decision in SC/173/2009 of 24/5/10 become estopped as privies in estate of the Lagos State Government and are by that fact alone bound by the same affliction and fate ailing the Lagos State Government on the twin issues of estoppels per rem judicatem and the proposed re – litigation of the matter in court. All of these however may be mere academic effulgence bearing little relevance to the practical situation when it comes to judgment enforcement in our legal jurisprudence.
A full and comprehensive public declaration, identification, description and notification of the precise areas covered by (a) The Lagos State Government acquisition of 24/10/69 published in the Gazette No 236 of14/10/69 and the accompanying Vesting Order No 8 of 1976 published in Official Gazette No 25, Volume 9 of 18/6/76 (b) The Lagos State Notice of Excision of part of the land covered by the Acquisition of 14/10/69 and (c) The Constituent Geographical Area/Spread of the 398 Acres the subject of judgment in ID/216/77L – would no doubt have made a huge difference and cleared up some of the profound inconsistencies, controversies and the disconcerting obfuscation if not opacity associated with not only the acquisition itself but even the process of the enforcement of the judgment. A more nuanced and focused enquiry from the point of view of an independent observer may raise questions that may indubitably touch on the propriety, diligence and quality of advisory services rendered by professionals such as Legal Practitioners and Estate/Land Surveyors as a prelude to the purchase of vested proprietary interest in areas later revealed to be under litigation.
This to be sure is a story for another day as Solicitors and Surveyors can only go as far – it may be practically difficult if not impossible to identify every parcel of land under litigation particularly one with very sound and unencumbered title deeds on which neither a caveat nor a caution is endorsed at the Land Registry. This must form the substratum behind the insistence by property Solicitors for an indemnity clause to be inserted in property transfer documentations.
The rather awkward, confused and desultory land title tenure system in the country where a lean 10 percent or less of almost all lands comprised in the territory of a state have registered and registrable titles is no less helpful and is indeed a recipe for a chaos, disorderliness and an amorphous property identification and registration regime susceptible to being employed post – acquisition as a tool to frustrate, deny and deprive a whopping mass of the citizenry without deemed valid and registered ownership titles of compensation and recompense.
A process should be put in place whereby a lot more property owners will be encouraged and incentivized to formalize, document and register their titles with the attendant huge and obvious town/physical planning advantages and unquantified economic benefits for the Government. The prognosis in the interim may lie in a defined and systematic synergy between the Land Registry and the courts in such a manner that at a glance at the Land title depository, an enquirer may be able to tell what land is the subject of subsisting contentiousness at a dispute adjudicatory forum from those that are litigation – free. This is assuredly achievable if the relevant stakeholders could set and devote their efforts, action and resources to achieving same. It will not also be out of place to suggest that a land title search registry be created at our High Courts with the responsibility to document all land/property – related litigations for members of the public to access such that you saw ahead of time and before the purchase of the desired property warning signals and red flags before a decision whether to purchase or not is made.
The length of time expended on litigation in the law courts is infinitely too long. The time for a wholesome review of the Rules of Court procedure to allow for a fixed term limit for the determination of cases from the trial to the Apex court is now. Litigating a matter for 42 year is worryingly vexatious if not outrightly scandalous in its negativing accentuation of the concept of justice delayed being tantamount to justice denied. The aggregate potential loss and financial fallouts of the Agidingbi/Ogba judgment execution along with the political, social, security and investment consequences is unsettling just as is its impact on commerce, business and property rights.
At the facilitation of the Lagos State Government, the judgment debtors of the Agidingbi land matter debacle may yet hold a round table with the judgment creditors to discuss all antecedents and associated issues/fallouts including but not limited to the procurement of ratificational titles. The judgment creditors are also hereby encouraged to act with magnanimity in the overall interest of peace, order, security and the general good – all of which factors stand threatened in the process of the continuing enforcement of the judgment if needed circumspections are not applied. There is however no telling whatsoever whether the parties are not going to be back in court anytime soon.
In conclusion, there is the need to take a holistic view and review as the case may be of our land legislations chief of which is the Land Use Act as it appears from all accounts to have outlived its utilitarian value, if there ever was any. The crass injustice that took 42 years to litigate and mitigate bodes ill for our judicial system just as the huge commercial drawbacks and consequences of such an infinitely long combativeness represents a gross disincentive to the strategic and long – term investors in the Nigerian economic environment. The time for a collective review action is now and it is hoped that the guardians/defenders of the status quo will at least allow needed change and reforms to happen in our land tenure, justice delivery and judgment enforcement systems.
Adenekan, a legal practitioner writes from Lagos.
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