Joseph Mangtup Din V. Attorney-general Of The Federation (1988)

LawGlobal-Hub Lead Judgment Report

L. UWAIS, J.S.C. 

By an ex-parte application brought under Order 1 rule 2(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, the appellant was granted leave by the High Court of Plateau State, holden at Jos, to file an originating summons against the respondent claiming (as amended) as follows-

“1. A declaration that the purported forfeiture by the Federal Government of Nigeria of the Plaintiff’s land and buildings situate at Vodni Estate, Mararaba Pushit, near PANKSHIN in the Plateau State of Nigeria, and at the temporary site of the Federal Advanced Teachers’ College Pankshin is unconstitutional, illegal, null and void.

2. N6,019,631.00k being special damages comprising:-

(i) Mesne profits on the above estate for 9 years i.e. January, 1974 to December, 1983 at N280,000.00k per annum N2,520,000.00k;

(ii) Annual Bank Charges on Capital outlay for 9 years at 11% – N3,149,631.00k

(iii) Estimated cost of repairs and renovation – N350,000.00k.

3. The sum of N280,000.00k per annum or any proportions thereof as may be found due to the Plaintiff being mesne profits from January 1984 till judgment and thereafter until final payment to

the Plaintiff.

4. And/or in the alternative, an inquiry into the amount of compensation due to the Plaintiff from the entry of the Defendant and his agents into the Plaintiff’s property at Vodni – Estate, Mararaba Pushit in 1974 to date.
5. An order of Injunction restraining all officers and servants or agents of the Federal Government of Nigeria from continuing unlawfully to use the aforesaid land and buildings of the Plaintiff at Mararaba-Pushit, Plateau State of Nigeria without paying rents or compensation therefore.

Such further or other orders as the Court may deem appropriate.”

6. In the absence of the respondent entering appearance, judgment in default was given for the appellant. This was however set-aside on the application of the respondent who thereafter filed a counter-affidavit challenging the appellant’s claims. The case was tried on the affidavit of the appellant and the affidavit and counter-affidavit filed by the respondent.

The facts of the case may be stated as follows. In 1970 the Federal Military Government promulgated the Recovery of Public property (No.2) Act, 1970 by which the appellant forfeited some of his assets to the Federal Military Government. The 1970 Act was amended in 1972 by the Recovery of Property (Amendment) Act, 1972, which took effect retrospectively from the date that the 1970 Act came into force, namely, 24th December, 1970. Sections 1 and 2 of the 1970 Act, as amended, read thus-

1. Relevant assets for the purpose of this Decree are assets which are or purport to be the property of –

(a) a person known or formerly known as Captain Din, or

(b) a company known as Nitico, or

(c) any other person or body corporate or in-corporate accused with the said Captain Din in criminal proceedings which terminated at Lagos in the year 1970.

2. Where any relevant assets are held by the Nigeria Police, it shall be the duty of the Inspector-General of the Nigeria Police to cause those assets to be sold and to cause the proceeds of the sale to be paid into the Consolidated Revenue Fund of the Federation.”

In 1959 the appellant began to acquire a tract of land measuring about 7 hectares at Mararaba-Pushit in Mangu Local Government Area of Plateau State. In January, 1974 part of the land was entered into by officers, servants and agents of the Federal Ministry of Education and the Federal Advanced Teachers’ College, Pankshin, Plateau State without the consent or permission of the appellant. As no oral evidence was adduced and the dispute between the parties in this case was tried by the High Court on the affidavits and counter-affidavit filed by the parties, it becomes necessary to have recourse in extenso to the depositions therein. Paragraphs 1 to 7 inclusive and paragraph 15 of the affidavit sworn to by the appellant state as follows –

“1. The Defendant is sued as the Chief Legal Officer of the Federal Government of Nigeria including its Ministries, and in particular as representing the Federal Ministry of Education, and the Federal Advanced Teachers’ College, Pankshin. That I am the beneficial owner of14 acres (approximately 7.1205 hectares) of land and buildings which form the subject-matter of this action situate at Mararaba-Pushit in Mangu Local Government Area, 20 kilometres from Pankshin on the PANKSHIN-SHENDAM-JOS ROAD, north of Jos Township in PLATEAU STATE of Nigeria, and more particularly delineated in the site Plans attached to the Certificate of Occupancy Nos. 944/82 and 945/82 dated 30th November, 1982 issued to me by the Mangu Local Government Council, annexed herewith, and marked

Exhibits ‘a’ and ‘b’.

3. That I began acquiring the 14 acres (approximately 7.1205 hectares) which comprise the land in dispute sometime in 1959 and remained in undisturbed possession of same exercising maximum acts of possession thereon by inter alia, putting up various buildings, on parts thereof, until sometime in January 1974, when I was ousted of possession by officers, servants, and agents

of the Federal Advanced Teachers’ College, Pankshin, who went unto the premises without my consent, and in spite of several demands, have to date, refused or neglected to pay rents or any compensation whatsoever for their occupation and use of my property.

4. That sometime in 1960, I began developing the land in dispute into an estate-cum-holiday resort with the name “MARARABA-PUSHIT VODNI ESTATE.” By 1973, it consisted of 16 units of bungalows; the walls, of sandcrete and ashlar finish; the ceiling of flat asbestos sheets; and the doors of Crittall-Hope glazed and timer finish types.
5. That upon its entry in 1974 into the Vodni Estate, the Federal Ministry of Education put up its sign-post on the premises and referred to it as “the Temporary Site of the Federal Advanced Teachers’ College, Pankshin.”
6. That in spite of protests and petitions to officials of the Federal Government of Nigeria, including, inter-alia, His Excellency, the President of the Federal Republic of Nigeria, Alhaji Aliyu Shehu Shagari, past Heads of State, The Honourable Minister, Federal Ministry of Education, the Honourable Attorney-General of the Federation and the Principal of the Federal Advanced Teachers’ College, Pankshin, I have been unable to recover possession of the said property nor obtain just compensation thereof.
7. That at the trial of this action I will rely on various correspondence between me and/or my solicitors and officials of the Federal Government of Nigeria on the issue of the occupation of my Estate at Mararaba-Pushit near Pankshin and my unceasing demand for compensation or restoration of the possession to me.”

“15. That to the best of my knowledge and belief the Vodni Estate at Mararaba-Pushit was never confiscated nor forfeited nor acquired in any legal manner whatsoever by any order, Decree, Edict, Act, or law of the Federation or of a State throughout the years of the military inter-regnum from 1966 to 1979.”

Of the affidavit and counter-affidavit filed by the respondent the affidavit was sworn to by one Daniel Temisanren -a Chief Superintendent of Police. Paragraphs 1 to 9 of the affidavit read-

“1. That I am Chief Superintendent of Police attached to ‘A’ Department, Force Headquarters, Moloney Street, Lagos, and in that capacity I am familiar with the facts of this case.

2. That I have the authority and the consent of the respondent to swear to this affidavit.
3. That the property of the applicant, the subject matter of this suit and other liquid and concrete assets were in 1970 taken custody of, by the Nigerian Police, Jos, pursuant to the Recovery of Public Property Decree No. 58 of 1970.
4. That in 1974, due to the inability of the Nigerian Police to perform a sale of the property, the subject matter of the sale, the Inspector-General of Police, Alhaji Kam Salem gave the property to the Federal Ministry of Education for temporary use.
5. That the Nigerian Police Force are by virtue of the Recovery of Public Property Decree No. 58 of 1970 as amended by Decree No. 22 of 1972 vested with the rights in the property.
6. That the consent of the Inspector-General of Police was given to the temporary use of the Property by the Federal Ministry of Education, and that the applicant should have addressed all his complaint to the Inspector-General of Police.
7. That the applicant’s right in the property was extinguished by the Recovery of Public Property Decree 1970, and all rights are now vested in the Inspector-General of Police who has not been able to perform sale of the property till now.
8. That the applicant is not entitled to any damages as he no longer has any right in the property.
9. That everything done in respect of the property is in pursuance to the intendment of the Recovery of Public Property Decree No. 58 of 1970 as amended by Decree No. 22 of 1972.”

The counter-affidavit was sworn to by one Michael Olakunle Osholowu, who was a civil servant. Paragraphs 1 to 8 thereof state-

“1. That I am a Deputy Secretary in the Federal Cabinet Office and in that capacity I am familiar with the facts of this case.

2. That I have the authority and the consent of the respondent to swear to this affidavit.
3. That the property of the applicant, the subject matter of this suit was forfeited by the Federal Military Government in 1970, and I am informed by Mr. E.O. Oyewo State Counsel for the respondent whom I verily believe that the property was forfeited under the Recovery of Public Property Decree No. 58 of 1970, as amended by Decree No. 22 of 1972.
4. That the said Mr. E.O. Oyewo further informed me and I verily believe him that this Honourable Court has no jurisdiction to entertain this suit by reason of the Provisions of the Recovery of Public Property Decree No. 22 of 1972.
5. That 1am further informed by Mr. E.O. Oyewo whom I verily believe that by virtue of the same Decree this action by the applicant is unmaintainable and lacks merit and should be so declared.
6. That Mr. E.O. Oyewo informed me and I verily believe him that by virtue of the provisions of the Constitution of the Federal Republic of Nigeria 1979 and also the provisions of the Recovery of Public Property Decree No. 58 of 1970 as amended by Decree No. 22 of 1972, this action is devoid of any merit and should be dismissed.
7. That the said Mr. E.O. Oyewo has further informed me and I verily believe him as follows:-

(a) that since the subject matter of this suit was legally forfeited to the Federal Military Government in 1970, all right and interest which the applicant had in the property has been extinguished, therefore the Mangu Local Government could not legally grant a right of occupancy in respect of the same property to the applicant in 1982.

(b) that the letter of the Permanent Secretary of 24th May, 1978; Ref. No. EDF.2/S.43/C.281/1121 signed by one Okon. W. Inyangon his behalf as pleaded in paragraph 8 of the applicant’s affidavit, was written in ignorance of the true legal position of the right of the applicant in the property.

(c) that the letter from the Secretary to the Government of the Federation of 26th October, 1982, Ref. No.5852/IV/859A signed by one Camel Obi, as pleaded in paragraph 8 of the applicant’s affidavit, states the true legal position in respect of the property and the right of the applicant thereof.

(d) that the applicant is not entitled to any damages as his rights in the property were extinguished in 1970.

8. That Mr. E. O. Oyewo further informed me and I verily believe him that under section 6 of Decree No. 22 of 1972 it is the Head the Federal Military Government, who may specify, if he thinks fit, a maximum sum recoverable under the Decree.”

At the hearing of the case both counsel for the appellant (as plaintiff) and the respondent (as defendant) addressed the learned trial Judge. In the course of his address, counsel for the appellant abandoned claim No.4 in the originating summons. While counsel for the respondent contended in his address that the trial Court had no jurisdiction to entertain the appellant’s action. In his judgment, the learned trial Judge (Soluade, J.) arrived at the following conclusion –

“It is an accepted cannon of interpretation of statute that any law which seeks 10 deprive any person of his proprietary rights must be construed strictly against the law-maker. Vide Bello v. The Diocesan Synod of Lagos, (1973) 3 ECSNLR (part 1) 330 at p.344…

But once the Court after hearing evidence is satisfied that the act done was in good faith (or bad faith not having been established) in accordance with Section 4 of Decree (sic) No. 20f 1970 now to read section 5 of Decree (sic) No. 22 of 1972, then the Court will proceed no farther.

I believe that the Federal Military Government made this provision to show that it is not acting arbitrary, (sic) but in conformity with civilized behaviour. It is only by its conduct expressed or implied that it can be judged (sic) whether or not it acted in good faith, and it is the Court that can determine this aspect. The ousting of the jurisdiction of the Court in this matter is not therefore absolute – as the learned Counsel for the respondent contended.

It has been shown as in the cases referred to in Peenok Investment Limited v. Hotel Presidential Limited, (1982) 12 S.C.1.

‘that it is a wise and ancient doctrine that a Court will not inquire into the motives of a legislative body or assume them to be wrong.’

In other words that no mala fides should be imputed to a legislator in regard to his legislation. It therefore follows that for the applicant to succeed he must establish or prove bad faith, he who asserts must prove it. The applicant having failed to do so, the presumption is that the conduct of the Inspector-General of Police was in good faith.

For the reasons given earlier I have come to the conclusion that this Court is not competent to entertain this application (sic) It is therefore dismissed.” (Italics mine)

Dissatisfied with the decision, the appellant appealed to the Court of Appeal (Akanbi, JCA, Agbaje, JCA (as he then was) and Ogundare, JCA) complaining inter alia –

“(1) That the learned trial Judge could not on the affidavit evidence before him come to the conclusion that it was established by the respondent that the asset in dispute was forfeited or held by the police, without hearing oral evidence.

(2) That having regard to the conflict in the affidavit and counter-affidavit relied upon by the respondent, the learned trial Judge ought to have rejected the evidence adduced by the respondent.”

These complaints were upheld by the Court of Appeal. In his judgment Akanbi, J.C.A. observed as follows-

Here, because of the nature of the procedure adopted, the case had to be fought on affidavit evidence.

As can be discerned from his affidavit, the appellant averred that he was in effective control and possession of the property until he was ousted out of possession in 1974 by officers or servants of the Federal Ministry of Education and the Federal Advanced Teachers’ College, Pankshin.

There is no indication, however, of how the appellant came to be ousted by the Federal Ministry of Education, and what steps were taken, what acts were done which compelled him to give up possession. It is also not clear from his affidavit that if as at 1974 the Ministry of Education indicated that they were acting on the authority of the Military Authority and if so, if there was any order of forfeiture and by whom, or on the authority of the Inspector-General whose functions have been clearly defined under the relevant Act.

I am not in any way unmindful of the averment in paragraph 15 of the first affidavit of the appellant that the said property ‘was never confiscated nor forfeited not acquired in any legal manner whatsoever…throughout the years of Military inter-regnum from 1966 to 1979’. I suppose this is why the claim itself speaks not of a ‘forfeiture’ by the Federal Government but of a ‘purported forfeiture’.

The significant point is that while the appellant says that he was in effective control in 1974, the affidavit of Temisanren seeking to justify the holding by the Inspector-General, stated that as far back as 1970, the Police were in custody of the property and that the property was passed on to the Ministry of Education for their ‘temporary use’ because it was not possible to effect a sale.

The averment that the Police took control of the property in 1970 appears to me to be in sharp conflict with the appellant’s contention that he was in physical control of the property up to 1974. Besides, there is also the affidavit of Mr. Osholowu in which he averred that the property was forfeited in 1974 by the Federal Military Government. Clearly, without oral evidence it would to my mind be difficult to determine whether as the appellant contends there was no forfeiture. Or as indeed the respondent asserts, there was a forfeiture.

That issue must first be resolved before any determination as to whether or not the property in question was lawfully held by the Inspector-General of Police can be made. And there has to be evidence to establish that the property (referred to as the ‘relevant assets’ in the Decree) indeed belongs to the appellant, since they have not been identified or listed in the Decree.

Equally so, a determination as to whether or not the alleged act of handing over of the property to the Federal Ministry of Education by the Inspector-General of Police constituted an illegality which rendered any possession by the Inspector-General ab initio unlawful, becomes relevant and necessary, if and only if, the issue of forfeiture is determined one way or the other.

And that determination, among others, as I said before, cannot be made on the basis of conflicting affidavit evidence; but on evidence given viva voce by witnesses whose credibility the trial Judge is pre-eminently qualified to assess. I need only add here that a long line of cases attests to the need to take oral evidence in cases where the affidavits are conflicting on ‘crucial facts’; and it is well that I refer to only a few of them in this judgment. See Akinsete v. Akindutire, (1966) 1 All NLR 147 at 148; Omosohwofe Eboh & Anor. v. Willie Oki & Ors.(1974) 1 SC 179 at 189; Lawrence Olu-Ibunkun & Anor. v. Adesola Olu-Ibunkun (1974) 2 SC 41 at 47/8; Falobi v. Falobi (1976) 1 NMLR 169 at 178 cited by appellant’s counsel.” (emphasis mine)

On the question of the jurisdiction of the High Court to consider the appellant’s claims, the following issues were raised by the appellant for the determination of the Court of Appeal –

“2. Whether before the jurisdiction of the Court could be ousted by the provisions of Decree No. 58 of 1970, the appellant had proved bad faith on the part of the Inspector General of Police;

3. Whether the Court was right in going outside the provision of Decree No. 58 of 1970 to determine what are ‘relevant assets’ under that Decree;
4. Whether the non-compliance with the provisions of Decree No. 58 of 1970 did not vitiate the holding of the property by the Police;” The Court of Appeal held as follows-

“There is no doubt that the trial Judge declined to exercise jurisdiction and give the case the deserved treatment because of the view he took on the issue on who had the duty of establishing ‘good faith’ with respect to any dealing with the ‘relevant assets’ under the law. Here again, it is my considered view that until there has been a determination as to whether or not there was indeed a forfeiture, who by and what circumstances prompted it, any rule of thumb pronouncement made in this judgment on section 5 of the (1970) Decree (sic Act) which is sought to be interpreted, will be otiose if not hypothetical. To my mind section 5 does not come into play until it has been (shown) that there was a forfeiture and a lawful possession of the ‘relevant asset’ by the Inspector-General.” per Akanbi, J.C.A. (Italics mine).

Agbaje, J.C.A. (as he then was) observed as follows-

“Claim one of the plaintiffs claim talks of purported forfeiture of the property in question by the Federal Government of Nigeria. If this is taken along with the averment in 8(i) upon which the plaintiff is relying, one gets the impression that the plaintiff is talking of a military forfeiture.

On the other hand, we have the contention of the defendant in the affidavit evidence I have copied above that the properties’ in question were forfeited to the Federal Military Government as far back as 1970. So to that extent it can be safely said that the defendant has pleaded forfeiture of the property in question to the Federal Government.

It is also clear tome that the defendant was relying on the Recovery of Public Property Act of 1970 (as amended by Act No. 22 of 1972) for his contention that the property has been forfeited to the State. Section 4 of that Act provided that the Head of the Federal Military Government may by an instrument direct that the assets in question shall be forfeited to the State. So, it is my view that it is the instrument which signifies the forfeiture of the assets. In other words, the Decree itself has not specifically forfeited the assets referred to. This is not to say that the assets were not forfeited under the Decree. It only means that the assets were forfeited by an instrument made pursuant to the Decree.

Since it is the defendant that is contending that the plaintiff’s property has been forfeited under the Act, the burden of producing the relevant instrument forfeiting the assets will no doubt be on the defendant. But this to my mind is a matter of evidence. I do not think the averment of the plaintiff in the affidavit evidence which I referred to above is a sufficient admission of the contention of the defendant that the assets, the subject matter of this action has been forfeited to the Federal Military Government. This, therefore, is not, in my view, a case where the contentions

of both parties in this action can be resolved as regards forfeiture of the property in question on affidavit evidence before the Court without further evidence in the witness box.

In effect I hold as regards grounds IV, V and VI of the additional grounds of appeal that the question whether the property in dispute in this case has been forfeited to Federal Military Government pursuant to Act No. 58 of 1970 as amended by Act No. 22 of 1972 cannot be properly and satisfactorily resolved on the affidavit evidence alone before the Lower Court without further evidence in the witness box. In my judgment therefore, the judgment of the lower Court cannot be allowed to stand.” (italics mine)

And Ogundare, J.C.A. stated thus-

“No instrument was produced in evidence to support paragraph 3 of the counter-affidavit of Michael Olakunle Osholowu at page 23 of the records which reads-

“3. That the property of the applicant; the subject matter of this suit was forfeited by the Federal Military Government in 1970, and I am informed that the property was forfeited under the Recovery of Public Property Decree No. 22 of 1972.”

Surely if there was aforfeiture of the property the subject-matter of these proceedings, it could only have been effected by an instrument made by the Head of the Federal Military Government. It is not enough to assert, as was done in paragraph 3of the affidavit of Osholowu that there was a forfeiture; the instrument of forfeiture must be exhibited. Without it, it would be wrong to hold there was a forfeiture, as claimed by the respondent in this case.” (Italics mine)

It is obvious from these quotations that the minds of the learned Justices of the Court of Appeal were occupied by the following considerations-

1. That there were conflicts in the affidavits relied upon by the parties as to whether the land in dispute was forfeited to the Federal Military Government in accordance with the provisions of the

1970 Act as amended by the 1972 Act.

2. That in accordance with settled rule of law, the conflicts in the affidavits could only be resolved by oral evidence and no such evidence was adduced.
3. That if in fact there was forfeiture of the land in dispute, the forfeiture took place in 1974, that is a her the 1970 Act as amended had been promulgated, and therefore that could only have been validly effected by an instrument of forfeiture made by the Head of the Federal Military Government.

The learned Justices of the Court of Appeal therefore allowed the appeal, set aside the decision of the High Court and remitted the case to the High Court for trial de novo before another Judge.

The appellant, once more being aggrieved. appeals to this Court against the decision of the Court of Appeal. Two grounds of appeal were filed. They read –

The learned Justices of the Court of Appeal erred in law and in fact in not holding that the learned trial Judge was wrong in setting aside the default judgment obtained on the 9th day of May, 1984.

Particulars of Error

(a) the respondent did not give any satisfactory reason why he was not represented by counsel on 19/4/84 and 9/5/84;

(b) the attitude of the respondent all along both before and after the default judgment was delivered was such that no discretion should have been exercised in his favour;

(c) even the learned trial Judge was not satisfied as to the reasons given for the absence of the respondent;

(d) even if further affidavit evidence was introduced on the day the appellant moved for judgment there was no evidence that the respondent had no notice of it.

(e) the respondent never sought to set aside the default judgment on the ground that further affidavits of which he had no notice were made use of, nor did the respondent file a notice to contend in the court of appeal that the decision of the High Court to set aside the default judgment be affirmed on the ground of the introduction of further affidavits.

(f) the issue of the further affidavits ought not therefore to have been raised by the Court of Appeal, and even if the court had to (which is not conceded) the parties ought to have been given an opportunity to address on it.

2. The learned Justices of the Court of Appeal erred in law and in fact in sending the case back for retrial on the ground that there is conflict in the affidavits filed by both parties.

Particulars of Error

(a) A court is only required to resolve the conflict in evidence where it cannot give a decision to the matter without deciding which version of the conflicting affidavits to accept.

(b) In the case in hand, even on the face of the affidavit evidence of the respondent, the evidence could not have afforded a valid defence to the appellant’s action having regard to the majority decision of the Court of Appeal as to the meaning and effect of the provisions of Decree No. 58 of 1970 as amended by Decree No. 22 of 1972.”

Chief Williams, learned Senior Advocate, for the appellant, formulated 4 questions in the appellant’s brief of argument for our determination. But at the hearing of oral argument, learned Senior Advocate did not pursue the first ground of appeal, in respect of which the first three questions for determination were postulated. The only question that remains for determination is question No.4, which reads-

“Whether having regard to the decision of the Court of Appeal as to the true meaning and effect of Decree (sic Act) No. 58 of 1970 as amended by Decree (sic Act) No. 22 of 1972 there was any need to send the case back to the trial Court to resolve the conflict in the affidavit evidence of the two parties”

Chief Williams submits that the rule that conflicts in affidavit evidence must be resolved by calling oral evidence before deciding a case applies only where the resolution is necessary for the determination of the case. He argued that such resolution does not arise in this case because the Court of Appeal found as follows –

(1) There has to be a forfeiture of the relevant assets.

(2) The only way the relevant assets in dispute in this case can be forfeited is by an instrument of forfeiture.

(3) The respondent had to prove forfeiture and the only way to prove it is to produce, in evidence, the instrument of forfeiture.

(4) Pursuant to the forfeiture the Inspector-General of Police could take possession of the relevant assets.

(5) Subsequent to taking possession the Inspector-General of Police is to sell the relevant assets.

(6) In taking possession of the relevant assets and selling them the Inspector-General of Police has to act in good faith.

(7) The initial burden of proving good faith rests on the respondent though the legal burden is on the appellant.

(8) Having regard to paragraphs 4 and 6 of the affidavit of Daniel Temisamen (supra) the respondent failed to establish the good faith as required by section 5 of the 1970 Act.

Chief Williams then submitted that there was no need for the Court of appeal to remit the case to the High Court to resolve the conflict in evidence having regard to the above findings which the Court of Appeal had made.

Replying learned Counsel for the respondent argued, in the respondent’s brief of argument, that the learned Justices of the Court of Appeal were right in remitting the case to the High Court for re-trial. As his reason for so arguing, he submitted that the Court of Appeal did not merely remit the case because of the conflict in the affidavit evidence adduced by the parties but to resolve the following controversial issues-

(a) Whether or not there was an instrument under the hand of the Head of the Federal Military Government forfeiting the property in dispute to the State.

(b) What attempts were made by the Inspector-General of Police to sell the property.

(c) When the buildings on the land in dispute were developed so as to determine what buildings formed part of the property when on 24th December, 1970 it was ordered to be sold by the Decree (Act).

(d) When was the appellant dispossessed of the property by the Nigeria Police so as to determine whether it was held by the Police on 24th December, 1970 when the Decree (Act) came into force or whether it was property to which section 4 of the (1970) Decree (Act) (as amended) applied.

Learned Counsel for the respondent argued further that the Court of Appeal has the power under section 160fthe Court of Appeal Act, No. 43 of 1976 to make the remittal order. He cited in support of his contention Onyema Oke v. Amos Eke & 3 Ors. (1982) 12 SC. 218 and Samuel Fadiora & Anor. v. Festus Gbadeba & Anor. (1978) 3 SC.219.

Now section 4 subsection (1) of the Recovery of Public Property (No.2) Act. No. 58 of 1970 as inserted by the Recovery of Public Property (Amendment) Act, No. 22 of 1972 reads-

4 – (1) Where the Head of the Federal Military Government is satisfied that there are relevant assets, other than those mentioned in the foregoing sections 2 and 3, he may by an instrument direct that the assets in question shall be forfeited to the State; and accordingly, section 8(4) of the Investigation of Assets (Public Officers and Other Persons) Decree, 1968 shall apply as if the reference therein to an order made by the appropriate authority were a direction of the Head of the Federal Military Government.”

Section 3 of the 1970 Act deals with the disposal of relevant assets held by banks. These, being liquid, by their nature, do not of course include land. Now reading sections 1,2 and 3 of the 1970 Act together, it is clear that the “relevant assets” that the 1970 Act was concerned with were assets which belonged to Captain Din (the appellant), Messrs Nitico and any other “person”. whether living or being a corporate or incorporate that stood criminal trial with the appellant in 1970. Some of such assets were of course held by the police at the time of the promulgation of the 1970 Act.

Amongst those not held by the Nigeria Police were cash expected to be in the banks. Hence the provisions of sections 2 and 3 thereof. However, by 1972 when the 1972 Act was promulgated it was clear that there were other “relevant assets” which were not held by the Nigeria Police, but to which forfeiture was intended to apply. Section 4 subsection (1) therefore laid down the procedure by which such assets are to be forfeited to the State. It is by an instrument issued by the Head of the Federal Military Government.

Now by paragraph 3 of the affidavit sworn to and relied upon by the appellant, which is quoted above, the appellant disclosed that he began to acquire the land in dispute in 1959 and that he remained on it undisturbed until 1974. The question is could it be true that the appellant had rightly been in possession of the land in dispute in 1974 in view of the provisions of section 1 of the 1970 Act, which provided that assets which were the property of the appellant or even purported to be his property were forfeited as at 24th December, 1970 when the Recovery of Public Property (No.2) Act, 1970 came into force The appellant must be held bound by the admission in his affidavit. If he held part of the land in dispute since 1959 and the 1970 Act provides that he has forfeited it, what oral evidence will be needed before a court can hold that the land in dispute was forfeited This is notwithstanding the fact that the affidavit and counter-affidavit relied upon by the respondent are in conflict with the affidavit in support of the appellant’s case.

It must be remembered that the key redress sought in the High Court by the appellant was –

“A declaration that the purported forfeiture by the Federal (Military) Government of Nigeria of the Plaintiff’s (appellant’s) land and buildings situate at Vodni Estate, Mararaba-Pushit, near Pankshin in the Plateau State of Nigeria, and at the temporary site of the Federal Advanced Teachers’ College Pankshin is unconstitutional, illegal, null and void.”

This declaration can only be granted if the appellant had succeeded in showing that the land in dispute was not forfeited under the 1970 Act as at the 24th day of December ,1970 and not when the land in dispute became occupied by the Federal Advanced Teachers’ College in 1974. Any other remedy sought by the appellant is consequent upon the declaration being granted. Once the declaration was refused there would be no question whatsoever of granting any of the consequential remedies.

The Court of Appeal was therefore misdirected and acted in error when it based its decision on the proposition canvassed by the appellant that because the Federal Advanced Teachers’ College came on to the land in dispute in 1974, the land in dispute became forfeited then to the Federal Military Government. This misconception led the Court of Appeal to hold that the burden was on the respondent to show that the Head of the Federal Military Government had issued an instrument of forfeiture in 1974 in accordance with the provisions of section 4 of the 1970 Act, which was inserted by the Recovery of Public Property (No.2) Act, 1972 long after the forfeiture had taken place. At the close of the addresses of learned Counsel we decided suo motu to raise and hear further addresses on the following two issues-

1. Can the Appellant’s fundamental rights violated in 1970 or 1974 be enforced under the provisions of sections 40 and 42 of the Constitution of the Federal Republic of Nigeria, 1979
2. The challenge to the competence of the Federal Military Government to promulgate the Recovery of Public Property (No.2) Act, No. 58 of 1970 and the validity of the Act.

Both learned Counsel filed supplementary briefs in respect of the questions raised. In his brief Chief Williams pointed out that the issue relating to the procedure for enforcement of fundamental rights was not raised at the trial of the case in the High Court. Attempt was made by the respondent to raise it in the Court of Appeal, this was opposed by the appellant and the Court of appeal refused the respondent leave since the point was not raised in the High Court. The brief argues further that unless the answer to a question not decided in courts below is so clear that any argument to the contrary is unworthy of consideration, it is inappropriate for such question to be raised and decided in a court of appeal, more particularly in a court of last resort. Learned Counsel contended that the efficacy of our system of the hierarchy of courts will be undermined if a court exercising appellate jurisdiction does not have the benefit of the decision of the court immediately below it.

This submission is based on the decisions in North Staffordshire Railway Co. v. Edge, (1920) A.C. 254 at p.263 per Lord Birkenhead L.C., United Marketing Co. v. Kara, (1963) 1 WLR 523 at p. 524 per Lord Hodson, Djukpan v. Dravuyovbe, (1967) 1 All NLR 134 at pp. 137-138 and Okoye v. Dumez, (1985) 1 NWLR 783 at p. 794 H. per Karibi-Whyte, J.S.C. Chief Williams submitted that there is an exception to the rule, which was laid down in United Marketing Co. v. Kara, (supra) at p.524 per Lord Hadson and Dullewe v. Dullewe, (1969) 2 A.C. 313 at p. 323 A per Lord Hodson, which is that the answer to the question raised may be so clear and so well settled that any contrary argument is wholly untenable.

Learned Counsel for the appellant then submitted that the point raised by question No.1 does not come within the exception and that this is demonstrated by the fact that we do not treat it as one which is too plain for argument, since we have invited argument on it. Furthermore, learned Counsel argued that the point in question raises a mere procedural irregularity and as such this Court, as a Court of last resort, ought not to entertain it. He relies in support on the Privy Council decision in Johnson v. Aderemi, 13 WACA 297 at pp. 297-298 per Lord Radcliffe, and Davis v. Galmoye 39 Ch. D. 322.

Learned Counsel submitted further that even if (which is denied) there is any irregularity in making use of the procedure prescribed under the Constitution of the Federal Republic of Nigeria, 1979 to commence the proceedings, such irregularity is insufficient to render the proceedings a nullity by virtue of the provisions of Order 2 rule 1 of the Rules of Supreme Court in England which are applicable 10 Plateau State by virtue of section 116 subsection (3) of the High Court Law of the State and the decision of this Court in Falobi v. Falobi (1976) NMLR 169 at p. 177.

He argued further that the irregularity being considered is in respect of the appellant making use of the form prescribed by the Rules made under the 1979 Constitution, then such irregularity does not affect the jurisdiction of the High Court to entertain the proceedings or make the order which the appellant sought. The proceedings, it is argued further, relates to infringement of fundamental right as spelt out under section 42 of the 1979 Constitution, which is identical with Section 32 of the 1963 Constitution. Learned Counsel submitted that the fight sought to be enforced is set out in section 31 of the 1963 Constitution and no rules had been prescribed under the 1963 Constitution.

Therefore failure to make the rules cannot deprive the High Court of the jurisdiction conferred upon it by the 1963 Constitution and the High Court could be approached in accordance with the ordinary procedure of the High Court – Akande v. Araaye, (1968) 1 All NLR 214 at pp. 217-218; Akunnia v. Attorney- General of Anambra State, (1977) 5 S.C. 161 and Re Squire’s Settlement, (1946) 115 LJ. Ch. 90. Moreover the error in following the procedure laid down under the 1979 Constitution cannot be material because the authority to bring the proceedings emanates from a valid authority – Forfie v. Seifar, (1958) A.C 59 at p.67 and Falobi v. Falobi, (1976) NMLR 169 at p.177.

With due respect the argument of learned Counsel for the appellant begs the issue. It is trite law that generally an Appeal Court would not suo motu raise issues which the parties do not raise; however in exceptional circumstances the court has a discretion to raise such issues, particularly where the issue involved is fundamental in nature – see Kuti v. Jibowu, (1972) 6 S.C 147, Odiase v. Agho, (1972) 1 All N.LR. (Part 1) 170 Kuti v. Balogan, (1978) 1 S.C 53 and Olusanya v. Olusanya (1983) 1 SCNLR 134 at p. 139. In the present case the cause of action arose in 1970 or in 1974 – as the appellant would prefer it. The appellant did not challenge the forfeiture at that time but waited for nearly 13 or 9 years, as the case may be, to sue on the 29th day of September, 1983. Now the action had been brought under the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 1980 which prescribe the practice and procedure to be followed in respect of the contravention of any of the fundamental rights provided in Chapter IV of the 1979 Constitution. The appellant is not challenging the infringement of his fundamental rights under the 1979 Constitution. Apart from this irregularity there is the vital point that the substantive claim is for a declaration that an action taken, that is the forfeiture of the land in dispute, in 1970 or 1974 is unconstitutional, null and void. The forfeiture was made under the Recovery of Public Property (No.2) Act, 1970 which is an existing law under the 1979 Constitution. Section 6 of the 1979 Constitution, which gave to State High Courts general jurisdiction, ousted the power of the High Courts to entertain any action in the nature of the present case. The ouster provisions of the Section read as follows –

“6. (6) The judicial powers vested in accordance with the foregoing provisions of this section –

(d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such laws.”

Surely, this is a very important point which this Court cannot overlook and the lower Courts ought -not to have overlooked in the determination of the present case. The issue of jurisdiction is indeed fundamental.

The provisions of section 6 subsection 6(d) of the 1979 Constitution have since been interpreted by this Court in the case of Uwaifo v. Attorney-General, Bendel State (1982) 7 S.C 124; (1983) 4 NCLR 1 in which Idigbe, J.S.C. observed as follows on pp.213 and 35 thereof respectively-

“It seems to me that, while the (1979) Constitution empowers the courts to inquire into the validity of any existing law, it clearly intends that the courts should not inquire into proceedings which seek to determine issues or questions as to the competence of any authority or person (i.e. the legal capacity, power, legal qualification or jurisdiction of any authority or person) to make any existing law promulgated between 15th January, 1966 and 1st October, 1979; in other words, the courts are precluded from inquiring into the validity of any such laws. Indubitably, the provisions of section 6(6)(d) aforesaid are aimed at proceedings which seek to detract from the binding force and or authority of any unrepealed law made by the military regime between 15th January, 1966 and 1st October, 1979 when the new Constitution came into force.” (emphasis mine)

It follows therefore that whether going by the procedure followed by the appellant in instituting the action or the nature of the claims being made by the appellant in the action, the case which he filed in the High Court of Plateau State cannot be entertained, as that court as well as any other Superior Court of Record in this country, has no jurisdiction by virtue of the provisions of Section 6 subsection (6)( d) of the 1979 Constitution.

With regard to issue No.2, learned Senior Advocate contends that the appellant is not challenging the validity of the 1970 Act as amended by the 1972 Act nor is it the appellant’s contention that the Federal Military Government had no competence to make the Acts. He therefore submits that the case for the appellant is that the 1970 and 1972 Acts are valid but that the authorities failed to comply with the provisions. Here again the appellant is being ingenious.

By his claim, he was asking the High Court to declare the forfeiture of the land in dispute to the Federal Military Government as unconstitutional, null and void. As the forfeiture was effected in 1970 by Act No. 58 of 1970 is the claim of the declaration not an indirect challenge of the validity of the 1970 Act and the competence of the Federal Military Government to establish a Federal Advanced Teachers’ College on the land in dispute The answer to this question is in the affirmative and therefore falls well within the ambit of the provisions of section 6 subsection (6)(d) of the 1979 Constitution.

In view of the aforesaid, I hold that the High Court of Plateau State had no jurisdiction to entertain the appellant’s claim. The decision of the Court of Appeal is therefore set aside. The appeal in this Court fails and it is hereby dismissed with N500.00 costs to the respondent.

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SC.40/1986