Agnes Deborah Ejofodomi V. H. C. Okonkwo (1982)
LawGlobal-Hub Lead Judgment Report
A. N. ANIAGOLU, J.S.C.
In the District Court of Kano State, the Plaintiff/Respondent (H.C. Okonkwo hereafter referred to as the Respondent) took out a writ of summons against the Defendant/ Appellant (AGNES DEBORAH EJOFODOMI also hereinafter referred to as the Appellant) as follows:
WRIT OF SUMMONS
The Plaintiff is entitled to the possession (sic) of the house and premises situate and being at No.6 Church Road, Sabon Gari, Kano otherwise known as ‘GREEN TRAVELLERS LODGE’ which the plaintiff had let to the Defendant as a tenant from month to month tenancy and which tenancy was determined by Notice to Quit given to the tenant through the Plaintiffs (sic) Solicitors on 31st July, 1979.
Arrears of Rent, from June to November 1979 at =N=900.00,=N=5,400.00 (Five Thousand Four Hundred Naira (sic).
“Despite the said determination of the said tenancy the Defendant still retained the said house and premises and holds over same from the Plaintiff. The Plaintiff claims:
(a) Possession of the said house and premises.
(b) Arrears of Rent.
(c) Mesne profit at the rate of =N=900.00 per month until possession is given up.
Dated this 28th day of November, (sic) 1979.
CHIEF IKEM AMAZU,
Plaintiff’s Solicitor,
12 Sani Ungogo Road,
Fegge – Kano.”
Although the writ of summons was taken out by Chief Ikem Amazu (Solicitor), Counsel who conducted the Respondent’s case was one Mr Emelogu. It would appear that in the course of the hearing of the case, Mr Emelogu, realizing that the sum claimed in the writ was above the jurisdiction of the District Court, withdrew his claim for arrears of rent amounting to =N=5,400.00 and mesne profits at the rate of =N=900.00 per month, leaving only the issue of possession to be contested.
Before the District Court, Defence Counsel, Mr Osuagwu, contended that the Court had no jurisdiction to hear the case by reason of the premises in dispute being residential having regard to S .12 of the Kano State Rent Control Law, 1977. Mr Emelogu replied and argued that the Court had jurisdiction by reason of the fact that the premises ranked as business premises, being used as a hotel for fee paying lodgers.
The character of the hotel and the use (decent or indecent) to which the hotel was alleged to be put by the Appellant was another matter, namely, whether the hotel had been turned by the Appellant into a brothel an issue which constituted one of the reasons upon which the Respondent based his claim for possession.
The Senior District Court judge (Mr. S.I. Leslie), at the close of hearing, ruled that the District Court had jurisdiction for the precise reason that the premises was business premises:
He held:
“Regarding this court’s jurisdiction, I hold that I have jurisdiction to hear this matter by virtue of sections 2 and 50 of the Kano State Rent Control Edict 1977 – only matters affecting Residential Accommodation are reserved for the Kano State Rent Tribunal. There is enough evidence in this case to show that No.6 Church Road, Sabon Gari, Kano is a business premises. D.W. 3’s testimony support this view e.g. He was/is the Assistant Manager in plaintiff’s ‘Green Traveller’s Lodge’, which Defendant said on oath that it is a Limited Company; and that she has a booming business there.”
In accepting the Respondent’s case and rejecting the evidence of the Defence and in giving judgment in Plaintiff’s favour, the learned District Court judge resolved the facts as follows:
“From the facts adduced before me, I am of the view that P. W. 1 and P. W. 5 are witnesses of truth.
Their testimonies are consistent, despite vigorous cross-examinations. The testimonies of D. W. 1 and D. W. 2, D.W. 3 are contradictory, especially those of D.W. 1 and D.W. 3. No reasonable tribunal can believe them. Regarding the quantom (sic) of proof required I hold that the Plaintiff had proved his case on the balance of probability.”
The Defendant/Appellant appealed to the Kano High Court in its appellate jurisdiction (Aikawa and Rowland, JJ.) which allowed the appeal, holding that the District Court, Kano, had no jurisdiction to entertain the suit. By reason of its comparative shortness I reproduce the judgment in its entirety as follows:
“JUDGMENT (SIC)
The fundamental issue raised by both counsel in this appeal is the question of the jurisdiction of Senior District Judge to entertain the matter. Mr Hughes learned counsel for the Appellant submitted that the learned Senior District Judge had no jurisdiction to hear the case but Mr Emelogu learned counsel for the Respondent asserted that he had on the ground that although the premises was let out to the Appellant for residential purposes, she put it into commercial use and as such not governed by the 1977 Kano State Rent Control Edict. Mr Emelogu went on to say that simply because the Appellant let out single rooms in the buildings to persons for short time purpose, “it therefore becomes ipso facto a commercial business. He however agreed that the Appellant did not provide boarding and carering (sic) facilities in the building. This case should have come under the jurisdiction of the Senior District Court Judge prior to March, 1977 under the Recovery of Premises Law. However, this Law has now been superceded (sic) by the Kano State Rent Control Edict No. 1 of 1977. This Edict covers the letting of houses and the hiring of single rooms even for a short time. It defines a tenant under section 2 as follows. Tenant means residential occupier of premises having right under a tenancy agreement (whether oral or written) to be in occupation and it includes a sub-tenant. It also goes to define accommodation in any premises whether or not any part of such premises is used for purposes other than residential. From there (sic) definitions and the fact that the Appellant conducted the business (sic) of living or letting out single rooms to individuals, we are of the view that the business conducted by the Appellant in the premises falls within the compass of the first schedule of the Edict. The case should have therefore been tried or entertained by the Rent Tribunal. We are therefore of the view that the learned Senior District Court Judge has no jurisdiction to entertain this matter since at the time the case came before him a Rent Tribunal had already been set up under the Rent Control Edict is Edict No.1 of 1977. To this extent the appeal is allowed and we therefore set aside the decision of the Senior District Court Judge.
(Sign.) R.O. ROWLAND, (Sign.) S.A. AIKAWA,
Judge Judge
29-10-80 29-10-80”
The Respondent appealed to the Federal Court of Appeal. The matters in contest before the Federal Court of Appeal, were contained in five grounds of appeal with “PARTICULARS” given in elaboration. These grounds, without the particulars are as set out hereunder:
- Error in Law. – The learned appeal judges erred in law when they held that the Defendant/Respondent was a tenant within the definition of the word ‘tenant’ under section 2 of the Kano State Rent Control Edict No.1 of 1977 when the evidence on the record of proceedings shows that the Defendant/Respondent does not come within the definition of the tenant under the said edict.
- Error in Law. – The Learned appeal judges erred in law and misdirected themselves on the facts on record when they held that “the fact that the Appellant (meaning Defendant/Respondent) conducted the business of letting out single rooms to individuals, we are of the view that the business conducted by the Appellant (meaning Defendant/Respondent) in the premises falls within the compass of the first schedule of the Edict and so come to a wrong conclusion that the trial District Court Judge has no jurisdiction to try the case.
- Error in Law. – The learned appeal judges erred in law when they held that the premises in question (No.6 Church Road, Kano) was not a business premises having regard to the evidence which was believed by the trial Senior District (sic) came to a wrong conclusion that the trial court had no jurisdiction.
- Error in Law. – The learned appeal judges erred in law when they held that the Kano State Rent Control Edict No.1 of 1977 “covers the letting of houses and the hiring of single rooms even for short time” when there is no section of the said Edict that supports that assertion.
- The judgment is not supported by the evidence on record.”
Before the Federal Court of Appeal the Appellant, who was then the Respondent in the appeal pending in the Federal Court of Appeal moved the Federal Court of Appeal for extension of time within which to cross-appeal and raised for the first time that the tenant of the premises m dispute was not the Appellant (AGNES DEBORAH EJOFODOMI) but a limited liability company – “GREEN TRAVELLERS LODGE LTD.” – into which the Appellant had constituted her business. The Court of Appeal refused the application and ruled (per Coker J.C.A.) inter alia, that:
“The Application is misconceived and in particular, this point now sought to be raised was not a defence at the trial. Throughout her evidence, the Respondent did not dispute that was the tenant of the premises, notwithstanding the evidence of a witness D.W. 3, who described himself as the Asst. Manager of Green Travellers Lodge Ltd., The Respondent spoke of the P. W.4 as her landlord; she said she was taken to the Rent Tribunal by Okonkwo, Tunde and P.W.4 and tendered receipts exhs. 4A, 4B, 4C, 4D. Nowhere did she say she was not the tenant, but a different body – The Green Travellers Lodge Ltd. At the High Court Kano, although leave was granted to argue this ground, it was never argued and was not considered.”
In concurring with the ruling of Coker, J.C.A., Maidama, J.C.A.,
“Entirely agreed that this application should not be entertained”
While Karibi-Whyte, J.C.A.
“Agreed that the application be refused”.
In the ultimate, the Court of Appeal allowed the plaintiff’s appeal, set aside the judgment of the High Court and restored the judgment of the District Court which granted possession of the premises to the plaintiff.
I am putting you, my Lords, through the tedium of these detailed facts and the issues on which the parties vehemently fought this case before the District Court, the High Court and the Federal Court of Appeal, in order to place in proper perspective, against its peculiar background, the request for leave for a change of ground now being made by the Appellant before us.
By her motion dated 30th September, 1981, Appellant, by her Counsel, Chief F.R.A. Williams, S.A.N., applied to this Court for an order:
(i) For extension of time within which to apply for leave to appeal from the judgment of the Federal Court of Appeal delivered in the above matter on the 9th July, 1981 on questions of fact;
(ii) For leave to appeal from the said judgment on questions of fact;
(iii) For leave to add the Grounds of Appeal shown in the Schedule to this Motion to the Grounds of Appeal filed herein and dated 2nd October, 1981;
(iv) For accelerated hearing of the said appeal
(v) For an order directing a departure from the rules of this Honorouable Court so that the appeal may be heard on the papers annexed to the Affidavit filed in Support of this Motion and marked Exhibit X with liberty to the Respondent to file such additional papers as he may be advised by his counsel to file;
(vi) Dispensing with the need to file briefs or (alternatively) reducing the period within which either party may deliver their briefs;
(vii) for an injunction restraining the Respondent, his servants or agents from removing the roof of the premises at No.6 Church Road, Sabon Gari or otherwise altering the structure of the said premises pending the determination of the appeal herein and
(viii) Such further or other orders as this honourable court may deem fit to make.
SCHEDULE
- The learned Judges of the Federal Court of Appeal erred in law in failing to uphold the conclusion of the Kano High Court that the District Court had no jurisdiction to entertain the Plaintiff/Respondent’s action.
PARTICULARS OF ERROR
(a) The Premises in dispute is the subject of a statutory right of occupancy pursuant to Section 34 of the Land Use Decree.
(b) Accordingly only the High Court of the State has jurisdiction to entertain the proceedings under Section 39(1)(a) of the Land Use Decree.
(c) In the alternative to (a) it was not established that the premises in dispute is the subject of a customary right of occupancy.
(d) Accordingly, it cannot be assumed that the District Court had jurisdiction to entertain the proceedings.
(e) In the premises the Federal Court of Appeal ought to have upheld the conclusion of the Kano High Court even if for different reasons.
- The learned Judges of the Federal Court of Appeal erred in law in failing to observe that the Plaintiff/Respondent did not establish his right or title to sue for possession of the premises in dispute.
PARTICULARS OF ERROR
(a) The Plaintiff’s claim to the property was based on an alleged purchase of the property on 8th June, 1979 for N80, 000.00.
(b) The Defendant/Appellant throughout the trial maintained that her landlord was Michael Abolaji Ibidipo Oguntuga (4th Plaintiff’s Witness) and she did not attorn to Plaintiff;
(c) It was not established that the transaction of sale on which the Plaintiff/Respondent relied was in accordance with the provisions of the Land Use Decree or that the necessary consent of the Governor of Kaduna State was obtained to the said transaction of sale.
(d) In the premises the alleged transaction of sale was void under Section 26 of the Land Use Decree.
Dated this 30th day of September, 1981.
Original Signed By
CHIEF F.R.A. WILLIAMS,
Esq., Appellant’s Counsel,
Chief Rotimi Williams’ Chambers,
1 Shagamu Avenue, Ilupeju,
Lagos” .
For Service on
MR H. C. OKONKWO,
10 New Road,
Kano.
The motion was granted. The appeal having now come for hearing, Appellant is taking up two issues for determination in her brief, namely;
(a) That by virtue of S.39 of the Land Use Act, jurisdiction in respect of this case was exclusively vested in the High Court of Kano and by reason thereof the District Court of Kano which heard the case was entirely without jurisdiction; and
(b) That the Respondent had not proved his title to the property in question.
Objection was taken, in limine, by Respondent’s Counsel, Mr. Ajayi, S.A.N., to these points being canvassed before this Court. He posed the issue as being:
“Whether the Defendant/ Appellant ought to be permitted to raise now, either or both of the two issues which were raised neither in the appeal to the High Court nor in the appeal to the Federal Court of Appeal. ”
Chief Williams, for the Appellant, readily conceded that the two question of law were being raised for the first time before this Court, but submitted that they should nonetheless be entertained by reason of the circumstances of this case and the character of the grounds of appeal being put forward. One of those grounds, he said, challenges the jurisdiction of the Kano District Court with reference to S.39 of the Land use Act. Being an issue as to jurisdiction the point can be raised at any time, even before this Court, the question of jurisdiction of a court being so fundamental that it falls within one of the well recognised exceptions to the rule that points raised for the first time in the Appeal Court will not be entertained.
Equally, the ground on Title should also, he contended, be entertained. Even if the question of title is regarded as an issue of fact (a point not conceded) the Appellant, he said, is entitled to appeal on the findings of fact by the Federal Court of Appeal since this Court granted her leave to appeal on facts on 10th February,1982, and therefore, for that reason, among others, this Court should entertain the ground of appeal on title.
Before deciding on the issue whether or not to allow these grounds of appeal to be argued, it is important to dispose of the little issue of whether or not this Court has a discretion to grant or refuse the application. As I understand Chief Williams’ argument on the matter, there was a veiled suggestion from him that the grounds of appeal being those of Law this Court, by reason of the provisions of Section 213 of the 1979 Constitution, has no discretion in the matter, but has to allow the grounds – especially the one as to jurisdiction to be argued.
I am in no doubt whatever that this Court possesses unfettered discretion to allow or refuse to be argued a point of law, on appeal, not raised in the court below and that in so far as one can call it a fetter, the only inhibition is that the discretion has to be exercised in accordance with principles and practice laid down by law and/or recognised by judicial precedents.
This Court in Samuel Fadiora and Another v. Festus Gbadebo and Another (1978) 3 S. C. 219 at 284, while recognizing that a court of last resort, as a matter of practice, is competent to entertain a point of law raised for the first time before it and that when the justice of a case so dictates it is expedient that it should entertain it, also acknowledge in its use of the word “may” that it is discretionary. The fact that the point involves “a substantial substantive point of Law” and that no further evidence could have been adduced which would affect it, are matters which could be taken into consideration in exercising the discretion. (See: Abinabina v. Enyimadu (1953) A. C. 207 at 215).
An Appellant’s right of appeal as of right does not confer on him an unlimited right to argue any ground of appeal filed in exercise of that right. This Court has the discretion, and indeed, the duty, to refuse an Appellant leave, where the justice of the circumstances so dictates, to argue a ground of appeal filed. Nothing in Section 213 of the 1979 Constitution has the effect of affecting, or in anyway abridging, this discretion. Indeed, by sub-section 6 of that section, the right of appeal provided by Section 213 of the Constitution is to be exercised:
“In accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Supreme Court.”
In exercise of its appellate jurisdiction under Section 4 of the Appellate Jurisdiction Act, 1987 [See also Sutherland v. Thompson (1906) A. C. 51 at 55]:
“The House of Lords has a duty to determine what ought to be done in the subject matter of an appeal. It therefore has a discretion to allow argument on points of law which were abandoned or not raised in the court below, but is averse to doing so unless a refusal would result in injustice.” (vol. 10 Hals. L.E. 4th Ed. para 745)
So much for the matter of discretion. I now turn to the state of the Law in the Northern States about land, within our con. The District Courts of Northern Nigeria were created in 1960 by the District Courts Law, 1960, contained in Volume I, Laws of Northern Nigeria 1963, Cap. 33 and the jurisdiction of a Senior District Judge is to be found in Section 13 of that Law. Sub-sections (a), (b), (d), and (e) of sub-section (1) therefore are relevant to the present appeal and they read:
“13.(1) Subject to the provisions of this Law and of any other written law, a Senior District Judge shall have and exercise jurisdiction in civil causes or matters
(a) in all personal suits, whether arising from contract or from tort, or from both, where the debt or damage claimed, whether as balance claimed or otherwise, is not more than five hundred pounds;
(b) in all suits between landlord and tenant for possession of any lands or houses claimed under agreement or refused to be delivered up, where the annual value or rent does not exceed five hundred pounds;
(d) in all civil proceedings in respect of which jurisdiction has been conferred upon a District Court by the Land Tenure Law where the amount claimed or the capital value of the land the subject matter of the proceedings, as the case may be, does not exceed five hundred pounds;”
The preamble to the Recovery of Premises Law of Northern Nigeria, Cap. 115,Volume III, Laws of Northern Nigeria, 1963 indicates that it is a law for the recovery of premises and it states that it is:
“A Law to make provision for the Recovery of Possession of Premises.”
Section 3 provides that:
“Proceedings under this Law may be brought in any Court of Competent jurisdiction”.
“Court” is defined therein in Section 2 to include:
“The High Court and District Courts but does not include a Native Court.”
Where proceedings are taken by a party in the High Court instead of the District Court, Section 4 of the Recovery of Premises Law denies the party costs beyond that which he would have been entitled to if he had taken the action in the District Court where the amount he recovers in the High Court does not exceed what he would have recovered in the District Court.
By Section 5 of the Law.
“The jurisdiction of a District Judge shall not be ousted by the Defendant bona fide setting up the title of a third person, unless he holds under, or claims through, such third person” .
The provisions of the Recovery of Premises Law make it clear that the Law applies to urban areas where rent-paying tenants exist, although the Governor-in-Council was empowered in Section 1 (2) thereof, from time to time, by order, to exempt any town, village, place or area specified in the such order from the operation of the said Law.
But the Land Tenure Law Cap. 59 Volume II. Laws of Northern Nigeria, 1963 was enacted for the preservation and protection of the customary rights of the indigenes of Northern Nigeria in respect of their user and enjoyment of their lands and the natural fruits thereof. By sections 4 and 5 of the Land Tenure Law:
“4. (1) Save and except
(a) All land to which a title shall have been established in accordance with the provisions of section 48;
(b) All land or interests therein in respect of which a title has been granted under the provisions of section 49, the whole of the lands of Northern Nigeria, whether occupied or unoccupied, are hereby declared to be native lands.
(2) Wherever any of the lands which are or have been included in section 48 or in section 49 contain or are expressed to contain native reserves such native reserves and lands required to be set aside for native reserves or purposes connected therewith shall be deemed to be native lands.
(5) All native lands and all rights over the same are hereby declared to be under the control and subject to the disposition of the Commissioner and shall be held and administered for the use and common benefit of the natives, and no title to the occupation and use of any such lands by a non-native shall be valid without the consent of the Commissioner. ”
The Commissioner is granted certain powers under Section 6 and these include grants of rights of occupancy. Section 39 provides for the recovery of possession of native land in appropriate Native Courts while Section 41(3) gives jurisdiction to the High Court and District Court (within the respective limits prescribed in the District Courts Law) in certain proceedings set out in the sub-section, namely:
(3) The High Court and District Court (within the respective limits prescribed in the District Courts Law) shall have jurisdiction in the following proceedings:
(a) Proceedings in respect of any land the subject of a statutory right of occupancy granted by a native authority or of a customary right of occupancy where one or more of the parties are not subject to the jurisdiction of native courts;
(b) Proceedings of the description referred to in paragraph (a) of subsection (2) where there is no native court of competent jurisdiction available to try the proceedings;
(c) Proceedings in respect of any land the subject of any right of occupancy other than those otherwise specifically described in this section. ”
It is clear from all the foregoing that lands in Northern Nigeria were (at least before the coming into force of the Land Use Act, 1978) subject to varying classifications and were of varying characters. Ex facie, the premises in dispute in this appeal, is situate at No.6 Church Road, Sabon Gari, Kano – an urban area of Northern Nigeria – to which on the face of it, Section 1(2) of the Recovery of Premises Law would normally apply and proceedings for possession in respect of which, by reason of Section 3 thereof, the District Court might, on the face of it, have jurisdiction; or by reason of Section 41(3) of the Land of Tenure Law, the High Court and the District Court (within the respective limits prescribed by the District Courts Law) might also, on the face of it, have Jurisdiction.
Then comes the Land Use Act, 1978. Appellant’s Counsel says that by Section 39 thereof the present proceedings came within the exclusive jurisdiction of the High Court. Section 39 reads:
(1) The High Court shall have exclusive original jurisdiction in respect of the following proceedings
(a) Proceedings in respect of any land the subject of a statutory right of occupancy granted by the Military Governor or deemed to be granted by him under this Decree; and for the purposes of this paragraph proceedings includes proceedings for a declaration of title to a statutory right of occupancy;
(b) Proceedings to determine any question as to the persons entitled to compensation payable for improvements on land under this Decree.
(2) All lands, including rules of court, regulating the practice and procedure of the High Court shall apply in respect of proceedings to which this section relates and the laws shall have effect with such modifications as would enable effect to be given to the provisions of this section”.
Under the said Section 39 of the Land Use Act the proceedings coming under the exclusive jurisdiction of the High Court are
“Proceedings in respect of any land the subject of a statutory right of occupancy granted by the Military Governor or deemed to be granted by him under this Decree”
But section 4 of the Land Use Act makes provision for interim management of land in Northern Nigeria where the Land Tenure Law applies and provides that such lands would continue to be administered in accordance with the provisions of that law. It is necessary to set out the provisions of that section 4 as follows:
“4. Until other provisions are made in that behalf and, subject to the provisions of this Decree, land under the control and management of the Military Governor under this Decree shall be administered
(a) In the case of any State where the Land Tenure Law of the former Northern Nigeria applies, in accordance with the provisions of that Law; and
(b) In every other case, in accordance with the provision of the State Land Law applicable in respect of the State, and the provisions of the Land Tenure Law or the State Land Law, as would bring those laws into conformity with this Decree or its general intendment”.
In order, therefore, to definitely determine the character of the land and premises the subject matter of this dispute, one would need to hear evidence to determine categorically
(i) Whether the land is an Urban land (coming by reason thereof under the Recovery of Premises Law); or
(ii) Whether it is land coming under the Land Tenure Law and, therefore, under Section 41(1) or Section 41(3) of the said Law; or
(iii) Whether the land was one subject to a statutory right of occupancy granted by the Military Governor, or deemed to be so granted, and, therefore, subject to Section 39 of the Land Use Act; or
(iv) Whether by reason of the provisions of Section 4 of the Land Use Act the land is one to continue to be administered under the Land Tenure Law. Such evidence would undoubtedly be better heard and determined by the trial court and not by the Supreme Court. It could be necessary, upon the hearing of such evidence, that the position of the town where the premises is situate, be properly demarcated with reference to a plan and that the parties be subject to some cross-examination in order to determine any differences there are as to, or to ascertain the boundaries of, the areas. These are not matters properly falling within the province of this Court or which, by convenience, this court is suited to handle. They properly belong to the District Court, Kano, whose jurisdiction to hear the case is challenged; and this fact is one properly to be taken into consideration by this Court in exercising its discretion whether to allow or to refuse the new point on jurisdiction to be raised. In Fadiora v. Gbadebo (Supra) this Court, after stating the necessity for a court of last resort to allow a question of law to be raised for the first time in the interest of justice in an appropriate case, continued, at pages 248 to 249, and said:
“The rule of practice, however, is subject to the qualification that the Court of last resort may refuse to entertain the question’ of law sought to be raised for the first time “If it is satisfied that the Court below would have been in a more advantageous position to deal with the matter .
Similar view had been expressed by the Court of Appeal in England in the opinion of Sir Raymond Evershed, M.R. in the case of United Dominions Trust Ltd. v. Bycroft [1954] 3 All E.R. 455 at pp. 459 and 460. After deciding that the point sought to be raised, within the scope of the general issue in the case, was such a new way of putting the plaintiff’s case as to amount to a “new point of law”, he declared:
“As a matter of principle the Court of Appeal has always been strict in applying the rule that an Appellant from a county court, unless the other party consents, cannot be allowed in this court to raise a new point of law not raised below. After all, the county court is intended to serve litigants of relatively small means. It is not in accordance with the public interest that a party who has fought a case in a county court and been defeated should then raise in this court a new point and put his case in an entirely different way as matter of law and so make the other party, hitherto successful, litigate the matter again at the risk of having to pay the costs not only below, but in this court. ”
Sir Evershed, M.R., clearly stated in that case, as we pointed out to Counsel in the course of the hearing of this appeal, that within the scope of a general issue, in the course of the trial of that general issue, a party’s case might be put in many ways, and it would not be difficult to imagine the putting of a case before an appellate court in so different a way, although within the general issue, as to amount quite plainly to a new point of law. He pointed out that one of the reasons for the Courts’ attitude is the consideration that if the new point of law sought to be taken, in the appellate Court, had been taken in the court below, evidence might have been taken at the court below to meet it. To put it in his own words, at page 460:
“As counsel for the Defendant observed by reference to Smith v. Baker, [1981] A.C. 325 one consideration which has moved the courts in applying this rule is, that, if the point taken in the appellate court had been earlier taken, evidence might have been obtained to meet it.”
It would follow, as Counsel for the Respondent pointed out in his brief, that where no further evidence could have been adduced which would affect the decision of the case, the Court, in order to prevent a possible miscarriage of justice, would allow the new point of law to be taken on appeal. (Akpene v. Barclays Bank of Nigeria Ltd. and Anor. (1977) 1 S.C. 47).
In the instant appeal, the general issue before the District Court was one of jurisdiction. A challenge to the jurisdiction of a court could be based on varied and diverse points, for example,
(a) That the judge was not properly appointed;
(b) That the matter in issue is outside the limits of the territorial jurisdiction of the court;
(c) That the claim is above the justificiable power of the adjudicating court;
(d) That the period allowed the court to embark upon the hearing of the case has expired, etc.
Each issue there, is a matter of jurisdiction but quite different, one from another. The specific point in this appeal on which the objection to the jurisdiction of the court was based and challenged by the defence, was that the premises was a Residential premises, the adjudication in respect of which, by reason of the provisions of the Rent Control Law, 1977 (Section 12), came under the exclusive jurisdiction of the Rent Tribunal; to which argument the Plaintiff countered with the assertion that the premises was Business premises, coming under the jurisdiction of the District Court. Issue was joined on this contention. It remained the issue throughout – before the District Court; the High Court, and the Federal Court of Appeal. It was a specific point within the general issue of jurisdiction. Parties have fought their case, right up to this Court on that point. Having regard to all the foregoing, I cannot see that this Court should now allow the Appellant to jettison before this Court, the issue on which the parties fought their case all the way to the appeal court – an issue on which she lost all the way. To do so would amount, in effect, to our allowing her to commence an entirely new case before this Court. There must, in the public interest, be an end to litigation (interest reipublicae ut sit finis litium) and it is my view that to allow this new issue, under Section 39 of the Land Use Act, to be raised at this late stage, is not to further, but to hinder, that public interest. I must not be understood as saying that where a Court is clearly, on the face of it, without jurisdiction, like the case of Okpaku v. Okpaku (1947) 12 W.A. CA. 137, the issue could not be raised at any time. I am saying no such thing. Not only can it be raised in the course of the proceedings, it can, in fact, be raised in a subsequent suit in which that decision, based on the invalid jurisdiction, is later tendered. (Timitimi v. Amabebe 14 W.A. CA. 374).
I now turn to the question of Title which can quite easily be disposed of. From the record in this appeal, it must be noted; .
(i) That the Appellant is not, and has never claimed to be the owner of the property, her position being that she was a tenant to the original owner, one OGUNTUGA:
(ii) That she did not appeal on an issue of title to any of the courts below;
(iii) That although Appellant’s Counsel has argued that the admission or concession made by Appellant’s Counsel before the District Court, in the last sentence of this address, that “Defendant does not dispute Plaintiff’s title” does not bind the Appellant,that statement was made by Appellant’s Counsel and the fact that thereafter Appellant did not appeal on the issue of title to the High Court or the Federal Court of Appeal is suggestive of that statement having been made on her behalf, to her satisfaction (until now), on the issue of title;
(iv) That between the Respondent who swore (P.W.1) that he bought the premises from MR OGUNTUGA (the admitted Landlord of the Appellant), and MR OGUNTUGA who swore (P.W.4) that he sold the premises to the Respondent, there is no dispute either as to the sale or as to title;
(v) That the person who witnessed the sale (Michael Ihunde, P. W .3) testified to that effect;
(vi) That the Assistant Land Officer at Waje, Kano one Alhaji Subairu Yakubu, has testified that the Respondent is the one now recorded in their official books as the owner of the premises in dispute.
I consider that these should be borne in mind in deciding whether or not to allow the Appellant to raise this new point of Title. As a matter of practice, in the House of Lords, an admission made in the courts below cannot be withdrawn before the House, although interpretation put upon it can be argued. (Gdynia Ameryka Linie Zeglugowe Spolka Akcyjna v. Boguslawski (1953) A.C. 11; (1952) 2 All E.R. 470 H.L., Vol. 10 Hals. L.E., 4th Ed. para. 745).
In the result, in the light of all the foregoing reasons and the circumstances of this case on appeal, it appears to me that this is a case in which this Court should refuse to exercise its discretion in favour of the Appellant. Accordingly, I hold that the objection taken by Respondent’s Counsel is well-founded and the application of the Appellant to argue those new points of law, identified, hereby refused.
G .S. SOWEMIMO, J.S.C.: I have had a preview of the judgement just delivered by my brother Aniagolu. I agree that the ruling that the new points of law on:
(a) Jurisdiction; and
(b) Title
be refused.
I wish to comment on a point raised by Chief Williams, in his argument, that since his appeal, on the new points, deal with questions of law, then he ought to be allowed to argue the appeal under section 213, sub-section 2 (a) of the Constitution of 1979. That relevant section reads thus:
“An appeal shall lie from the decisions of the Federal Court of Appeal to the Supreme Court as of right in the following cases
(a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Federal Court of Appeal. ”
As I earlier stated, the new points of law sought to be argued, do not arise from the decision of the Federal Court of Appeal in this case, and therefore this appeal cannot be faulted for that reason. These new points cannot be said to have arisen as of right.
The ruling against allowing arguments of the new points of law, will therefore be sustained and the appeal if it is to proceed further can now go on.
M. BELLO, J.S.C.: I had a preview of the ruling delivered by my learned brother, Aniagolu J.S.C. with which I entirely agree.
KAYODE ESO, J.S.C.: I have had a preview of the draft of the ruling just delivered by my learned brother Aniagolu J.S.C. I agree with the ruling and will also not allow the Appellant to raise the two points as to whether
(a) by virtue of Section 39 of the Land Use Act, jurisdiction in respect of this case was exclusively vested in the High Court of Kano and that the District Court of Kano which heard the case was without jurisdiction; and
(b) That the Respondent had not proved his title to the property in question.
I agree with my learned brother that this is a case where the court below would have been in more advantageous position to deal with the matter. See Fadiora v. Gbadebo (1978) 2 S.C. 219 at page 248. I do not consider this to be a proper case for us to exercise our discretion in favour of the Appellant and his application to argue the new points is refused.
M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the ruling read by my learned brother Aniagolu, J.S.C. I agree with the reasons and conclusion therein. I have nothing to add.
Other Citation: (1982) LCN/2158(SC)
