Appeal Court 27th April, 1940 Appeal from judgment of Supreme Court.

Proceedings under Part VII of the Lagos Town Planning Ordinance (NO. 45 of 1928)-Originating Summons under sections 44 and 45 of the Ordinance-procedure-res Judicata-onus of proof-case remitted.

Part VII of the Ordinance applies to land which the Board wants to acquire but it was here claimed that the land in question had already been acquired. The matter of compensation was referred by the Chairman to the Supreme Court on an originating summons and the Court had jurisdiction to determine it under section 44 ..

An originating summons is foreign to the Rules of Supreme Court of Nigeria and section 48 (2) provides that the Court should hear and determine the matter as if the proceedings had been commenced in the ordinary way. by a civil summons. The pleadings made it clear that the Respondents were Plaintiffs but the matter did not go to trial and the Judge held that no cause of action was disclosed. Judgment was given for them without any evidence that the Respondents were entitled to compensation. There was also a finding of res judicata but it was held by the Court that a judgment against the Crown subsequent to the alleged vesting is not res judicata against the Board.

Appeal allowed, pleadings struck out and case remitted to be tried on basis that the onus is on Respondents to prove they are entitled to compensation. A statement of interest should be filed.

The facts of the case are sufficiently set out in the judgment.

I an F. Cameron for Appellant.

Jibril Martin for 1st and 2nd Defendants-Respondents.

L. B. Augusto for 3rd-12th Defendants-Respondents.

The following joint judgment was delivered :--

KINGDGN, C.J. :NIGERIA, PETRIDES, C.J. GOLD COAST AND GRAHAM PAUL, C.J. SIERRA LEONE.

These proceedings were commenced under Part VII of the Lagos Town Planning Ordinance (No. 45 of (928). That part of the Ordinance is headed" Acquisition and Disposal of Land for Scheme." It is clear from that heading and from the particular wording of the following sections that this part of the Ordinance is meant to apply only to land which the Board wants to acquire, and not to land which the Board claims to have already acquired. The land in question in this case is land which the Board does not seek to acquire but claims to have acquired already from the Crown by statutory notice under section 53 of the Ordinance published in the Nigeria Gazette of 24th January, 1929. There can be no doubt whatever that if the land in question was at 24th January, 192.9 Chairman, Crown land or vested in the Town Council it was by the statutory notice vested in the Board. Section 53 of the Ordinance is quite Board   definite on that point.

      By their letter of 15th November, 1938 (Ex. A) addressed to Mr. Jibril Martin as Solicitor for the Olorogun Family the Board made it quite clear that their position was that the land in question  and had become vested in the Board by the operation of section 53 and that they did not" admit the existence of any over-riding interests au •.. for which it is liable to pay compensation on assuming possession of the said land."

         In reply to Ex. A Mr. Jibril Martin },y his letter of 16th November, 1938 (Ex. AI) made it equally clear that his client~ position was that the " land in question was never a Crown land nor was it ever vested in the Lagos Town Council." Mr. Martin went on to say: "These contentions have been disposed of by the judgment of the Divisional Court of Lagos in Suit No. 157 of 1936 which was upheld by the West African Court of Appeal.

       "2. If, however, you still dispute the title of my clients I shall be glad if you will please refer the matter to the Supreme Court of Nigeria, vide section 43 of the Lagos Town Planning Ordinance No. 45 of 1928."

       our opinion the Chairman of the Board on receipt of Ex. Al was ill advised to take the step he did take, namely to apply to the Court for an Originating Summons under sections 44 and 45 of the Ordinance " to hear and determine whether the Olorogun Family is entitled to be paid by the Lagos Executive Development Board any compensation money in respect of the lands shewn on Plan B.00446 (1) 24 edged in red colour exe1uding the area edged in blue colour, upon the Board assuming possession of the said lands." At the same time by the terms of section 44 of the Ordinance the Court had jurisdiction to hear and determine this "matter submitted for its decision by the Chairman of the Board."

        In our view the better procedure for the Chairman to have adopted on receipt of Ex. Al would have been one of two alternatives. He should either have challenged the Respondents to bring an action for declaration of title; or he could have brought against the Respondents an action for declaration of title, and if the Respondents were in possession, and the Board wanted possession, he could have added a claim for recovery of possession.

       If the Chairman had adopted either of what we conceive to be the suitable methods of procedure, the confusion which has resulted from 'his application under Part VII of the Ordinance would have been avoided. The Chairman having taken this step however the Court could not deny its jurisdiction given under section 44 and was bound to proceed with the Originating Summons.

     An "Originating Summons" is quite foreign and unknown to the Rules of the Supreme Court of Nigeria. For that reason probably it was enacted by section 48 (2) of the Ordinance that the Court should hear and determine all matters herein "as if the proceedings had been commenced in the ordinary way by a civil summons issued under the Supreme Court Ordinance and Rules which shall govern all matters of procedure."

Now a civil summons under the Supreme Court Ordinance provides at once a Plaintiff and a Defendant and the whole subsequent procedure under the Rules of Court is based on the fundamental fact that there is a Plaintiff and a Defendant. An " Originating Summons" does not provide either a Plaintiff or a Defendant so that it is rather difficult to apply the Rules of the Supreme Court strictly to an " Originating Summons." Probably on account of that difficulty the Court below decided to call one party to these proceedings Plaintiff and the other Defendants.

We have already quoted the issue in this case as it was defined in the Originating Summons. It is to our minds abundantly clear that on. that issue the Respondents should have been regarded and treated and denominated as the Plaintiffs if anyone were to be so denominated in the proceedings started by the Originating Summons. But for some reason this procedure was not adopted and the Appellant was dubbed" Plaintiff" and ordered to file a statement of claim. This was done apparently without protest or criticism or even comment by Counsel representing the party against whom the claim for compensation was being made, which seems to us extraordinary.

Upon that Order the Appellant filed and delivered a so-called "Statement of Claim." That "Statement of Claim" made it perfectly clear that the Respondents were claiming compensation from the Appellant and contained the following paragraphs :-

•• (4) The Plaintiff does not admit the claim of the Olorogun family or any member thereof to be paid compensation in respect of the land outlined red in colour on the said Plan and puts the Defendants to the strict proof of their title." and

•• (5) The Plaintiff pleads that the Defendants have no right title or interest in the land edged in colour red on Plan No. B'00446 (1) 24 and puts the Defendants to the strict proof thereof."

It seems to us to be beyond argument that the Board, a public body in charge of public money, is not only entitled, but bound, to refuse to entertain a claim for compensation unless and until the claimants have given strict proof that they are entitled to compensation.

In answer to this so-called "Statement of Claim" the Respondents filed so-called "Statement of Defence" which read as if they were statements of claim by Plaintiffs in an action for declaration of title to land. The wording of these "pleadings" made it clearer than ever that the Respondents were the Plaintiffs in the issue before the Court and that they would have to begin if the matter had gone to trial.

 But the matter never did go to trial. The learned Judge heard Counsel on the" pleadings"; no evidence was given by either side; and the learned Judge held that the" Statement of Claim" disclosed no .• cause of action." It was on that account struck out and judgment was entered for the" defendants."

We are unable to follow the reasoning of the learned Judge. In so far as the Appellant in taking out an Originating Summons could be said to have a .. cause of action" at all, it is clear that his" cause of action" was the request of the Respondents contained in Ex. Al which resulted in the Court being asked under section 44 of the Ordinance to determine whether the Respondents were entitled to compensation upon the Board assuming possession of the land in question. Without any evidence whatever that they are entitled to any compensation the Respondents are given judgment that they are entitled to compensation upon the Board assuming possession of certain land. This seems to us quite impossible to defend.

Having given judgment for the .. Defendants" because the .• Plaintiffs Statement of Claim" showed no cause of action, the learned Judge went on to find, on the" pleadings" and the production of the judgment, that .... "as the Crown is estopped by the judgment in Commissioner of Lands v. Kadiri Adogun from denying the right of the Olorogun Family to the possession of the land in question the Lagos Executive Development Board which admits that it is through the Crown it claims to have derived title, must pay compensation to the Olorogun Family in respect of the lands in question upon assuming possession or at the appropriate time, as the case may be, having regard to the provisions of sections 40 and 41 of the Ordinance."

That rider to the judgment of the learned Judge amounts to a finding of res judicata upon the pleadings and the judgment relied upon. If the pleadings and that judgment justified such a finding no doubt the judgment of the Court below would be right. But it is quite clear from the decision in Mercantile Investment and General Trust Co. vs. River Plate Trust Loan and Agency Co. (L.R. 1894 1 Ch. 578)-with which decision the learned Judge expressly agreed-that the judgment in Commissioner of Lands vs. Kadiri Adagun i •• not res judicata against the Lagos Executive Development Board if they are right in their case which is that they acquired this land from the Crown in 1929 under section 53 of the Ordinance. That is to say the Appellant's case is that the land was vested in the Board seven years before the judgment in the Commissioner of Lands case against Kadiri Adagun. The Board under the Ordinance is an independent legal entity-a body corporate with perpetual succession (section 3 (1)). If the Board is right in its claim to have acquired the land from the Crown in 1929 it is quite clear on the authority of the case quoted that a judgment against the Crown (or against the Commissioner of Lands representing the Crown) subsequent to the alleged vesting is not res jtidicata against the Board.