IN THE SUPREME COURT OF NIGERIA
On Wednesday, the 22nd day of December, 1976
Before Their Lordships
ATANDA FATAYI-WILLIAMS….. Justice, Supreme Court
CHUKWUNWEIKE IDIGBE….. Justice, Supreme Court
ANDREWS OTUTU OBASEKI….. Justice, Supreme Court
NATIONAL ELECTRIC POWER AUTHORITY
1. MUDASIRU AMUSA
2. AYINDE AMODU
(For themselves and on behalf of all other members of Madarikan Family of Idimu Village, Lagos)
Accordingly, the plaintiffs/respondents are awarded compensation assessed at N95,000 and this shall be the judgment of the court. Save as above, the appeal has no merit and it is dismissed with costs to the plaintiffs/respondents assessed at N144.00.
ACTION – JUDGMENT AND ORDERS – Claim for compensation for injurious affection – How determined
“. Per FATAYI-WIILIAMS, J.S.C. at P. 12, Paras. A-B.
The Electricity Corporation of Nigeria, popularly known as the ECN, is the defendants’ predecessor. It was established by Section 3(1) of the Electricity Corporation of Nigeria Act (Cap. 58 of the Laws of the Federation, 1958 which is hereinafter referred to as the Act). Its main function is to secure the supply of electricity at reasonable prices. For this purpose, it had the power to construct, reconstruct, maintain and operate electric generating stations, transmission lines, distribution lines, transformer stations, and all other stations, buildings and works necessary for carrying out their duties under the Act. In order to exercise its powers effectively, it had additional power under Section 19(1) of the Act “to acquire and hold land and all movable and immovable property whatsoever”.
In addition to the above, the Corporation was granted additional powers under section 49 subsections 9(1), (2) and (3) of the Act. These relevant parts of the section read:
“49(1) Subject to the provisions of subsection (4) of this section the Corporation may by its officers or agents with all necessary workmen and other servants enter from time to time on any lands for all or any of the purposes following:
(a)the survey and taking of levels;
(b)the construction, placing, maintenance, examination, repair, alteration, or removal of any electric or main transmission line;
(c)the cutting and removal on each side of any proposed or existing electric or main transmission line of all such trees and underwood as may interfere or be likely to interfere with the constitution or proper working of any such line;
(d)attaching to any wall, house or other building any bracket or other suitable fixture required for the carrying or support of an electric or main transmission line or any other electrical apparatus;
(e) any other work connected with the supply of electricity.
(2)Save as is otherwise specifically provided by section 50, the Corporation shall when practicable give notice to the occupier of any land on which it is intended to enter.
(3) For all or any of the purposes aforesaid such officers, agents, workmen or other servants may remain on any such land for such reasonable time and execute and do all such work and things as may be necessary”.
Pursuant to the exercise of the powers granted in the above section, it is further provided in Section 52 sub-section (1) and (3) of the Act as follows:
“52(1) In the exercise of the powers conferred by Section 49 the Corporation, its officers and servants shall do as little damage as may be and the Corporation shall pay any compensation for any damage done to any buildings, crops, or economic trees. ………….
(3) In the case of a dispute as to the amount of compensation payable, the same shall be determined by a magistrate exercising jurisdiction in the place where the land is situate or the High Court within whose area of jurisdiction the land is situated as the case may be and such decision shall be final”.
(The underlining is ours).
By virtue of its powers under Section 49 referred to above, the Corporation wrote to the Bale of Idimu who was then the head of the plaintiffs’ family. The letter (Ex. 11), dated 14th April 1966, and signed by the Corporation’s Secretary, reads:
Notice of Intention to enter upon land
In pursuance of Section 49 of the Electricity Corporation of Nigeria Act, I am directed to give you notice of the intention of the Corporation, by its servants or agents, to enter upon land situate at Iseri/Idimu Villages between Milestones 4-8 on Agege-Akesan Road in the Division/District of Colony Ikeja for the purpose of making a survey, taking levels, or executing and doing all such works and things as may be connected with the supply of electricity.
On the same day, the following notice (Ex. 12) was given to the occupier of the said land:
“TO: The occupier of the land situate in the District of Ikeja Iseri/Idimu Villages between milestones 4-8 on Agege-Akesan Road.
Notice is hereby given that after the expiration of thirty days from the service of this notice the Electricity Corporation of Nigeria in exercise of the powers conferred on them by Section 50 of the Electricity Corporation of Nigeria Act and of all other powers enabling them in that behalf intend to enter upon the said land and execute the works hereinafter referred to that is to say:
Description of Works
‘The erection and construction of a Double Circuit 3 Phase Overhead Transmission Line, operating at a pressure of 132,000 volts consisting of 4 S.C.A Conductors 0.25 sq. inch and one galvanised earth wire and supported by Steel Towers in accordance with the regulations made under Section 3 of the Electricity Act Chapter 58 where applicable or any legislation in substitution therefore”.
What transpired thereafter was described by Ayinde Amodu (11th P1/W), who is a member of the plaintiffs’ family as follows:
“The NEPA have erected electricity poles and electric wires on our own land. The erection of the poles and the electric wires disturbs us from the usage of our land. The ECN just served us with notice of their intention to pass on our land. This was about nine years ago. After this notice, the ECN came and cut down trees, palm trees and coco-nuts on the land. After cutting the economic trees, the ECN paid for them. This was about 8 years ago. After this, the ECN came to erect electric poles and to erect wires on them. This was about 6 years ago.
Before the ECN came, we were using the land for planting crops. We later decided to make a layout of the land and to lease them out in plots. We had not started the layout before the ECN came. The surveyor later said that the survey cannot be carried out as the ECN poles were disturbing him. This was about 6 years ago. The ECN officers said the land then belonged to the Corporation and no further survey should be carried out by us. They informed us that if we wanted compensation, we should write to their office. We instructed one Mr. Dina to write on our behalf”. (The underlining is ours).
In answer to questions asked by the court, this witness said:
“The transmission lines run parallel to each other. The transmission lines were extended on top of the poles. There were pillars in which poles were buried on land. We could not work under the lines the top of which were dangerous. The transmission lines make some howling noise in the afternoon. One could not work under them”. (The underlining is ours).
Mr. Dina (3rd P1/W) duly negotiated on behalf of the plaintiffs with the ECN for compensation for the loss of the use of the land. He held a number of meetings with officials of the Ministry of Mines and Power. The claim was discussed at these meetings. The result was explained by the 3rd P1/W as follows:
“At that time, I had two claims that had already been processed remaining only payments. I had one for Itire Ruling Family and one for Madarikan of Idimu, the family involved in this case. The Deputy Permanent Secretary apologised for the delay in paying the claims. He said the delay was due to the fact that they have been waiting for advice from the Ministry of Justice.
He said the Ministry of Justice has advised that compensation should be paid on any land over which NEPA transmission lines had traversed. He instructed NEPA officials that they should go and pay. The NEPA processed the ITIRE family claim and they paid. The payment was made to our company”.
With respect to the plaintiffs’ claim, the ECN instructed their surveyor to go on the land and demarcate the affected area so as to evaluate the amount of compensation payable. The contents of the letter dated 4th December 1972 (Ex. 1) read:
“E.A. Adeniran, Esq.
P.O. Box 6835,
330/132 KV Overhead transmission line – Lagos/Ibadan: Claims for compensation on landed property of Madarikan Family of Idimu – Lagos State
The above landed property is said to belong to Madarikan Family of Idimu, via Agege, Lagos State.
The land is situated on the western side of Idimu village and is between poles Nos. 531-540 for the 330 KV lines and 31-45 for the 132 KV lines. The width of the traces are 200′ and 100′ respectively and the land is traversed by the above mentioned transmission lines thus making some portions unsuitable for further development. The claimants are represented by Pan Cad (Nig.) Co. Ltd. of 2A Shiro Street, Fadeyi, Yaba, Lagos.
You are requested to survey and demarcate the affected portions of the land and to forward to my office five countersigned copies of the survey plan including the original fit for inclusion in the deed of conveyance.
It is agreed that the Authority will be responsible for the survey fees. You can contact my Assistant Lands Officer (E.E. Obe) at this Headquarters to point out the site to you. The attached site plan should be returned to the undersigned on completion of the job.
(Sgd.) E.U. Okwechime
for SECRETARY TO THE AUTHORITY (ECN)”
(The underlining is ours).
The survey plan (Exhibits 2 & 2A) later produced by Adeniran (1st P1/W) showed that an area of 94.84 acres were affected. Adeniran also testified that he gave six copies of the survey plan (Ex. 2) to the defendants.
Meanwhile, consultation over the payment of compensation continued between the Ministry of Mines and Power and the National Electric Power Authority (also known as NEPA) who are the successors of the ECN. Eventually, the Ministry conveyed their decision to NEPA in a letter dated 26th March, 1974 (Ex. 8). The relevant part of the letter reads:
“3. With the promulgation of Decree No. 24 of 1972 which merged the Niger Dams Authority and the Electricity Corporation of Nigeria into a single Authority (NEPA), claims continued and still continue coming in for compensation on land over which transmission lines pass. We have therefore asked our Law Officers to closely examine the NEPA Decree to ascertain whether it allows for what is now being described as “way-leave compensation” in respect of land over which your transmission lines pass.
4. After a very exhaustive examination of the NEPA Decree, our Legal Adviser has concluded that no compensation is payable or relief grantable under the law for any land or building (including building in a built-up area) across which an electric main transmission line passes. This further confirms the view of the Federal Ministry of Justice in its letter No. LE.38/II/331 of 15th October, 1970, a copy of which is attached for ease of reference. Thus, under the NEPA Decree, the Authority is not expected to pay compensation except as stipulated under Section 33 of the Decree.
5. With the position as clarified in paragraph 4 above, you will please dispose of all outstanding claims for the so-called “way leave compensation” accordingly”.
When this decision was conveyed to the plaintiffs, they instituted the present proceedings claiming against the defendants:
“1. A declaration that the plaintiffs are entitled to compensation from the defendants in respect of the plaintiffs’ land at Idimu Village near Agege, in the Lagos State of Nigeria adversely traversed by the defendants’ transmission lines thereby rendering the same unsuitable for any development and/or useless for any other purpose.
2. The sum of N200,000.00 being the value of the said land or in the alternative, the sum of N200,000.00 being general and special damages for the loss of use of the same land. OR in the alternative to claims 1 and 2 above, possession of the said land”.
Paragraphs 19-23 of the plaintiffs’ statement of claim read:
“19. The plaintiffs will contend at the hearing of this action that other families whose landed property were affected by the defendants’ 330/132 KV transmission lines have been paid fair and just compensation for the land so injuriously affected, and the defendants have maliciously refused or failed to pay compensation for plaintiffs’ land so adversely affected by the defendants’ transmission lines.
20. The plaintiffs’ land injuriously affected by the defendants’ transmission lines is about one hundred acres (100 acres) in area.
21. The market value of one acre in and around plaintiffs’ land at Idimu village is about N2,000.00 (Two Thousand Naira).
22. Evidence will be led at the hearing of this action to show that the defendants paid the sum of N1,000.00 per acre to other families as compensation for land injuriously affected by the said 330/132 KV transmission lines in and around Idimu village in an area where the land is not as valuable as the plaintiffs’ land.
23. The plaintiffs will further contend at the hearing of this action that the defendants are liable to pay fair and just compensation for the plaintiffs’ land injuriously affected by their transmission lines, whether or not the law which established the defendants made any provision for the payment of such compensation”.
The allegation of injurious affection of the area described in paragraph 20 above was not denied by the defendants. Instead, they averred in paragraphs 10 and 13 of their statement of defence as follows:
“10. In answer to paragraphs 19 and 22 of the statement of claim, the defendants state that compensation for lands traversed by transmission lines may have been erroneously made by the Electricity Corporation of Nigeria. The defendants have not themselves made any such payments, and will contend at the trial that they have no right or duty to pay compensation for the lands claimed by the plaintiffs or at all since such lands were not compulsorily acquired.
13. The defendants will contend at the trial that under the National Electric Power Authority Decree 1972 under which the defendants operate, it is open to the plaintiffs to apply for re-routing of the lines”.
It is, we think, necessary for us to point out that the provisions of sections 19(1), 49, and 52 of the Act have been re-enacted almost word for word in the National Electric Power Authority Decree (Decree No. 24 of 1972 hereinafter referred to as the Decree) under which NEPA, the successors of the ECN was established. Moreover, sections 5(1) and 44(1)(a) of that Decree provide that all property, rights, liabilities and obligations which immediately before the 1st day of April 1972, were the property, rights, liabilities and obligations of the Electricity Corporation of Nigeria, shall on that day vest or be deemed to have vested, by virtue of the said Decree and without further assurance, in the Authority. These sections thus made the NEPA the successor of all the rights, liabilities and obligations of the ECN.
At the hearing before the Lagos High Court sitting at Ikeja, the plaintiffs, as we have pointed out earlier, testified in support of their claims. The defendants did not call any evidence and did not therefore dispute the fact of injurious affection on which the plaintiffs’ claims were predicated. Instead, they relied on the provisions of Section 52(1) of the Act (now section 33(1) of the Decree) as their answer to the claims.
In a reserved judgment, the learned trial judge observed:
“In my view, the word ‘building’ in section 33 subsection 1 of the NEPA Decree includes ‘land’. For it seems unreasonable to me that the word, ‘building’ in this context should exclude land. And I do not believe that the NEPA Decree meant to exclude land from the popular and ordinary meaning of the word ‘building’ which includes the fabric as well as the land on which that fabric rests”.
After referring to the provisions of section 31 sub-section (1) of the Constitution of the Federal Republic of Nigeria which provide that:
“no property, movable or immovable, 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 by or under the provisions of a law that requires the payment of adequate compensation”.the learned trial judge continued:
“Coming to the present case, as I have said above in this judgment, it is agreed that the traversing of the transmission lines over the plaintiffs’ land had caused material damage and loss to the plaintiffs and have rendered the land an area of 97 acres useless for further development to the owners.
The defence of statutory limitation has been quite rightly in my view not been stressed by the defendants’ counsel. It does not avail the defendants in this case. The defence also that the defendants were exercising statutory functions and not liable does not avail the defendants. The rights of the plaintiffs have not been taken away by any legislation. ……………….
In this case, I hold that compensation in respect of damage to land is also impliedly included in section 33(1) of Decree No. 34 of 1972″.
After finally observing that the evidence of William Okpara (9th P1/W), the estate valuer who testified for the plaintiffs, was uncontradicted and unchallenged, he gave judgment for the plaintiffs and awarded them the sum of N142,300.00 as compensation.
The appeal against that decision turns on the scope of the provisions of Section 33(1) of the Decree which, as we have pointed out before, is the same as section 52(1) of the Electricity Corporation of Nigeria Act (Cap. 58). Mr. Sofola for the defendants/appellants contended that because of the provisions of Section 33(1) of the Decree, compensation is payable only in respect of buildings, crops or economic trees and not for deprivation of use of the land. In reply, Chief Awolowo, for the defendants/respondents, submitted that the common law right of the defendants/ respondents to compensation for injurious affection of the land or for deprivation of use of it by the owners still subsists notwithstanding the provisions of Section 33(1).
The learned trial Judge gave judgment for plaintiffs/respondents after holding that the word “building” in the context of Section 33(1) includes “land”. Having interpreted the word “building” as including land, he further held that “compensation in respect of damage to land is also impliedly included in Section 33(1) of Decree No. 34 of 1972”.
With respect, we think that the maxim quidquid plantator solo solo cedit is still good law. It is a general rule of great antiquity and it means that whatever is affixed to the soil becomes, in contemplation of law, a part of it, and is subjected to the same rights of property as the soil itself. Thus, if a man builds on his own land with the materials of another, the owner of the soil becomes in law, the owner also of the building.
Similarly, if trees were planted or seeds sown in the land of another, the owner of the soil became the owner also of the trees, plants or the seeds as soon as they had taken root (see Broom’s Legal Maxims 9th Edition, pp. 264-265). Of course, this general rule of law is subject to any contract entered into by the parties and also to the doctrine and rules of equity. Apart from these exceptions which are not relevant to the case in hand, we are not aware of any general rule of law, and the learned trial judge did not refer to any, which says that the reverse, except as defined in specified statutes, is possible and that a building could therefore, for all purposes, include land on which it is built. We think the learned trial judge was clearly in error in holding, as he did, that the word “building” used in Section 33(1) of the Decree includes “land”. In our view, he was also in error in invoking the provisions of Section 31(1) of the Constitution of the Federation.
In the first place, the provisions of a Decree prevail over those of the unsuspended provisions of the Constitution (see additional modification of Section 1 of the Constitution in Schedule 2 of the Constitution (Suspension and Modification) Decree 1966 Decree No. 1 of 1966). Secondly, no court now has the power to declare a Decree invalid (see section 1 of the Federal Military Government (Supremacy and Enforcement of Powers) Decree, 1970 – Decree No. 28 of 1970).
All the learned trial judge should have done in the circumstances and what he eventually did, was to have interpreted Section 33(1) of the NEPA Decree in order to see whether, because of its provisions, the plaintiffs/respondents are deprived of their right to compensation for the injurious effect of the transmission lines on their land as contended by the defendants/appellants.
For our part, we do not think that the liability of the defendants for damage to building, crops or economic trees on the land lawfully entered by them preserved in Section 33(1) relieves them of liability for the act, described in detail by Ayinde Amodu (11th P1/W), which has injuriously affected about 95 acres of the plaintiffs/respondents’ land.
The reason for our view is this. While the express mention of one type of damage in a statute would go far to show that no other damage was permissible, it cannot go to show that any other damage is permissible.
Thus, the express provision of Section 33(1) of the NEPA Decree for the payment of compensation for damage to buildings, crops and economic trees only goes to show that no other damage to the land was permissible; but it cannot go to show, in the absence of any clear provision to that effect, that any other damage, such as the one complained of by the plaintiffs/respondents in this case, is permissible.
Moreover, where a public body, such as the ECN, is authorised by statute to exercise powers or execute works, whether for profit or not, it is subject to the same liabilities as an ordinary citizen unless absolved by the terms of its statute or some other statute; if it claims that its powers enable it to take away the common law rights of any person, it is bound to show that the statute does so with sufficient clearness, because Parliament will have made lawful that which would otherwise have been unlawful and there will be no remedy by action and no compensation in lieu of it unless otherwise provided (see Halsbury’s Laws of England, 4th Edition, Vol.8 para. 363 at page 266).
As Section 52(1) of the ECN Act (now Section 33(1) of the NEPA Decree) stands, it could not have been the intention of the legislature that while compensation is payable with respect to damage done to crops, or economic trees, none is payable if the land in which the crops and trees are is so injuriously affected as to make it impossible for the owners to use it again. If that was the intention, it should have been so stated in clear and unmistakable terms.
Furthermore, there is provision in the Act for compulsory acquisition of land required by the ECN. The same provisions were re-enacted in the NEPA Decree. If any land can be entered by the ECN and used on a permanent basis to the exclusion of the owners without payment of compensation for such injurious exclusion by virtue of the provisions of Section 33(1) of the Decree, there would have been no need for the provision for compulsory acquisition (on payment of compensation) in Section 19(1) of the Act.
In our view, that provision for compulsory acquisition clearly indicates that Section 33(1) is not intended for depriving owners of land the use of their land without payment of compensation. This is probably why, in the past, compensations have been paid for land entered into and permanently used by the ECN by virtue of their powers under Section 49(1) of the Act.
We will now proceed to consider the plaintiffs/respondents’ claim on the evidence which is not disputed and which the learned trial Judge accepted. From the facts, it seems to us that the claim for compensation for injurious affection is quite appropriate having regard to the circumstances. When the case of the Metropolitan Board of Works v. Macarthy (1874) LRHL 243 was in the House of Lords, the following definition was submitted by counsel and adopted by Cairns, Lord Chancellor, at p. 253, as to when land is “injuriously affected”:
“Where by the construction of works there is a physical interference with the owners or occupiers of property are by law entitled to make use of, in connection with such property, and which right gives an additional market value to such property, apart from the uses to which any particular owner or occupier might put it, there is a title to compensation if, by reason of such interference, the property, as a property, is lessened in value”.
The above definition was also adopted and applied by Darling, J., in In Re Masters and Great Western Railway (1900) 2 Q.B. 677 at pp. 687-688 and affirmed on appeal in (1901) 2 K.B. 84. In view of the above definition which we also adopt, there is no doubt that the facts of this case, as found by the learned trial judge, show clearly that the 94 acres of land belonging to the plaintiffs/respondents have been injuriously affected by the acts of the defendants/appellants.
Finally, the plaintiffs/respondents have shown by evidence which the learned trial Judge again accepted –
(a)that the defendants/appellants, by the erection of the transmission lines, are now in permanent occupation of about 95 acres of the plaintiffs/respondents’ land;
(b)that the said occupation is such that has rendered the land useless either for further development or for any other purpose;
(c)that, as a result, the plaintiffs/respondents have been barred permanently and completely from the use of their land; and
(d)that the plaintiffs/respondents have suffered loss of use of the land as a result.
At common law, the plaintiffs/respondents are entitled to compensation for this deprivation of the use of their land. As we pointed out earlier, there is nothing in the provisions of Section 33(1) of the Decree to show that this common law right has been taken away.
The plaintiffs/respondents are, therefore, entitled to the declaration asked for, that is, that they are entitled to compensation in respect of their land rendered useless and unsuitable for further development by the erection of these powerful transmission lines. Consequently, we think that the learned trial judge, although for reasons which we are unable to support, was right in giving judgment for the plaintiffs/respondents with respect to the validity of their claim.
The question of the quantum of the amount awarded as compensation is, however, a different matter. The evidence showed that about 95 acres (and not 97 acres) of land are affected. Furthermore, William Okpara (9th P1/W) who gave evidence of the value of the land based his valuation on “current prices” (that is, price in March, 1975) of land in the area, not prices at the time of the injury complained of which was about nine years before.
As against this, there is the averment by the plaintiffs/respondents themselves in paragraph 22 of their statement of claim that other families in the area whose lands were also affected by the erection of the transmission lines were paid N1,000.00 per acre. As this averment was not denied by the defendants/appellants, we would have thought that the award would have been based on that figure particularly as the valuation of the 9th P1/W, not having been pleaded, goes to no issue and should have been ignored. We think the learned trial Judge was in error in accepting the figure given as the “current price” of land in the area.
We accordingly set aside the award of N142,000 and substitute instead the sum of N95,000 based on the price of N1,000 per acre. Accordingly, the plaintiffs/respondents are awarded compensation assessed at N95,000 and this shall be the judgment of the court.
Save as above, the appeal has no merit and it is dismissed with costs to the plaintiffs/respondents assessed at N144.00.
Mr. K. Sofola, (with him, Mr. B.M. Mbanefo)…..For Appellant
Chief O. Awolowo, (with him, E. Omoghomi)…..For Respondent