Alhaji Dahiru Saude V. Alhaji Halliru Abdullahi (1989)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C. 

This case was commenced on the 18th day of February , 1981 in the High Court of Kaduna State by the respondent, as plaintiff, applying exparte under Order 1 rule 2(3) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, S.1 (1) of 1979, for an order to enforce his fundamental right under the Constitution of the Federal Republic of Nigeria, 1979. The application was granted by the High Court. Thereafter the plaintiff took out an originating summons under Order 2 rule 1(1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 which states-

“1. (1) When leave has been granted to apply for the order being asked for, the application for such order must be made by notice of motion or by originating summons to the appropriate court, and unless the court or Judge granting leave has otherwise directed, there must be at least eight clear days between the service of the motion or summons and the day named therein for the hearing. Form No.1 or 2 in the Appendix may be used as appropriate.”

In the originating summons the plaintiff asked for the following reliefs against the Governor and Attorney-General of Kaduna State, as 1st and 2nd 398 Nigerian Weekly Law Reports 18 September 1989 (Uwais, J.S.C.) defendants respectively, and against the appellant herein, as 3rd defendant –

(1) A declaration that the purported revocation by the first defendant of the plaintiff’s Statutory Right of Occupancy No. NC.5200 dated the 26th March, 1979 and Registered as No. KDR.74 at Page 74 Volume 15 (Certificate of Occupancy) (sic) of the Lands Registry in the Office at Kaduna is invalid, void and of no effect whatsoever and should accordingly be set aside.

(2) A declaration that Section 34(2)(c) of the Land Tenure Law (Cap. 59) Laws of Northern Nigeria (As applicable in Kaduna State) under which first defendant revoked the plaintiff’s said Certificate of Occupancy does not confer on the defendant the power to effect such a revocation because the facts and reasons upon which the first defendant based the said revocation are not within the contemplation of Section 34(2)(c) of the Land Tenure Law Cap. 59 aforesaid.

(3) A declaration that the purported revocation of the plaintiff’s said Certificate of Occupancy without compensation is inconsistent with and contravention of the provisions and intendment of Section 40(1)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1979.

(4) A declaration that the reasons given or the revocation as contained in the Revocation Order (sic) dated 28th day of November, 1980 and registered as No.KDR.75 at page 75 in Volume 28 (Miscellaneous) of the Kaduna State Land Registry in the Office at Kaduna are invalid as they do not fall within the reasons set out in Section 28(1)(b); and Section 50(1) of the Land Use Act, 1978 and/or Section 2 and 34(1) and (2) of the Land Tenure Law Cap. 59 Laws of Northern Nigeria applicable to Kaduna State. Alternatively and or Section 40(2) of the Constitution of the Federal Republic of Nigeria, 1979. And seeks an order of the court in the following terms namely:

(5) An order restraining the defendants, their agents, servants, privies or anyone acting by any authority express or implied of the defendants from taking possession of or doing any act inconsistent with or contesting with rights and interest of the plaintiff over the land subject of the aforementioned Certificate of Occupancy. Or alternatively seeks an order of the court in the following terms; namely:

(6) An order that the plaintiff be adequately compensated by the defendants in the sum of N50,000.00 it being a fair, reasonable and just compensation for the compulsory acquisition of the said plaintiff’s landed property covered by and subject of Occupancy No. NC.5200 dated 26th March, 1979.” No oral evidence was adduced by any of the parties at the hearing of the originating summons. Instead the case was contested on the affidavit and counter-affidavits filed by the plaintiff and 1st, 2nd and 3rd defendants respectively.

The facts as deposed in the affidavit and counter-affidavits and which were not generally in dispute are as follows-

The plaintiff, on the 5th day of August, 1976 applied on two separate application forms to the Ministry of Lands and Surveys of former Kaduna State for the grant of statutory right of occupancy in respect of 2 plots of land situate at Katsina town. The plots were numbered as plots K.29 and K.30. In the application forms, the plaintiff indicated that plot No.K.29 was required for the purpose of setting up a garage and a metal structure while plot No.K.30 was to be used in establishing a factory for the manufacture of floor tiles. The applications were accompanied with the necessary fees, for which a single Revenue Collector’s Receipt No. 430607 of 18th August, 1976 was issued to the plaintiff. Two years later the plaintiff received a letter dated the 6th September, 1978 stating that his application in respect of plot No. K.29 had been approved for the grant of a Certificate of Occupancy bearing No. NC.4294. Another letter dated the 19th October, 1978 conveying the grant of right of occupancy to the plaintiff on plot No. K.30 was received by the plaintiff. The grant was in terms of Certificate of Occupancy No. NC.5200. Both grants of right of occupancy were accepted by the plaintiff in his two letters to the Permanent Secretary, Ministry of Lands and Surveys, Kaduna State, which were dated the 15th September, 1978 and 27th October, 1978.

Whilst the plaintiff’s applications were being processed by the Ministry, the numbers of the plots were changed. Plot No. K.29 became plot No. 8 and plot No. K.30 became plot No.9. Certificate of Occupancy No. NC.5200 in respect of plot No.9 was issued to the plaintiff in March, 1979 and Certificate of Occupancy No. NC.4294 was issued in July, 1979. Building plans for the development of the plots were submitted by the plaintiff to Town Planning Authority which approved them. Consequently. the plaintiff commenced development on plot No.9. He expended the sum of about N45,000.00 by the and day of December, 1980.

On his part, the 3rd defendant applied to the Ministry of Lands and Surveys, Kaduna State, on the 13th day of February, 1976 for a right of occupancy over a piece of land in Katsina town, known as plot No. K.32 which was situated at Katsina Industrial Layout. He indicated in the application that he needed the plot for the purpose of setting up a soap manufacturing factory. He paid the appropriate fees for the application and a Revenue Collector’s Receipt No. NC.201795 dated 13th February. 1976 was issued to him.

The grant of the right of occupancy over the piece of land was conveyed to the 3rd defendant by a letter from the Ministry, which was dated the 20th August, 1979. The right of occupancy so granted was covered by Certificate of Occupancy No. NC.3459. However, it was remarkable that the right of occupancy was stated by the letter to be in respect of plot No.9 already granted to the plaintiff in 1978 and not plot No. K.32 in respect of which the 3rd defendant applied for right of occupancy.

The 3rd defendant paid the necessary fees in respect of the allocation of the plot and he was issued the Certificate of Occupancy No. NC.3459 on the 28th day of November, 1980. The building plans of the 3rd defendant were approved by the Town Planning Authority. It was at this stage that the 3rd defendant discovered that the plaintiff had been in possession of plot No.9 and had since commenced development on it.

The confusion in the allocation of Plot No.9 to both the plaintiff and the 3rd defendant was also discovered by the Ministry of Lands and Surveys. A letter the 31st October, 1980 was sent by the Permanent Secretary of the Ministry to the plaintiff asking him to stop the development on the land in dispute. This was followed on the 22nd of December, 1980 by a letter in which it was indicated by the Permanent Secretary that the plaintiff’s right of occupancy over plot No.9 was revoked by the Governor of Kaduna State. A Deed of Revocation signed by the Governor, was enclosed in the letter. The letter made no reference to payment of compensation to the plaintiff. The Deed of Revocation reads as follows –

“The Land Tenure Law (Cap. 59)

REVOCATION OF RIGHT OF OCCUPANCY

No. NC.5200

WHEREAS by a Certificate of Occupancy under the hand of the Commissioner of Land and Survey, Kaduna State of Nigeria, dated the 26th day of March, 1979 and numbered NC.5200 (which said Certificate of Occupancy was registered as No. KDR.74 at page 74 in Volume 15 (Certificate of Occupancy) of the Lands Registry in the Office at Kaduna) it was certified that Alhaji Halliru Abdullahi of Sallau Estate, Malumfashi, Kaduna State of Nigeria was entitled to a Right of Occupancy over the land at plot No.9 Katsina Industrial Estate on the plan numbered NCLP.109 and more particularly described in the schedule to the said Certificate of Occupancy.

AND WHEREAS it has been observed that the said Alhaji Halliru Abdullahi had earlier applied for the allocation of Plot No.8 on Plan No. NCLP.109. The then Divisional Secretary Katsina forwarded his recommendations to the Ministry of Lands and Surveys, Headquarters under the cover of his letter No. KT/CER/271/Vol.1/4 of 20th August, 1976. The application was processed to approval. Offer of grant was issued under the cover of letter No. NCL.855 1/20 of 6th September, 1978 and accepted on the 6th day of September, 1978. Certificate of Occupancy No. NC.4294 dated the 26th day of July, 1979 and registered as No. KDR.191 at page 131 in Volume 17(C. of O.) of the Lands Registry Office Kaduna was issued in evidence of the grant;

AND WHEREAS under the cover of his letter dated 3rd January, 1978 which was filed at page 10 of file No. NCL.885 1. the said Alhaji Halliru Abdullahi forwarded to the Ministry of Lands and Surveys Headquarters, Photostat copies of the following documents: Letters No. KT/CER/271/Vol.1/4 of 20th August, 1976; KT/CER/2/1/Vol.1/5 of 15th December, 1977, KT/CER/271/Vol.1/6 of 12th January, 1978 and KT/CER/271/Vol.1/7 and “Form Land I” in which he applied for allocation of Plot No.8 on NCLP.109.

AND WHEREAS on receipt of these documents normal processing was initiated and I was subsequently advised to approve the allocation of plot No.9 on Plan No. NCLP 109 in favour of the said Alhaji Halliru Abdullahi which I did. An offer of grant was issued under the cover of letter No. NCL.18,404/14 of 19th October, 1978 and accepted on 22nd October, 1976. Certificate of Occupancy No. 5200 dated the 26th day of March, 1979 and registered as No. KDR.74 at page 74 in Volume 15 (C. of O) of the Lands Registry Office Kaduna was issued in evidence of the grant.

AND WHEREAS Alhaji Dahiru Saude of Post Office Box 4 Katsina had also applied on 26th January, 1976 for the allocation of the said plot No. 9 on Plan No. NCLP.109. The then Divisional Secretary Katsina forwarded his recommendation to the Ministry of Lands and Survey Headquarters under the cover of his letter No. KT/CER/206/Vol.1/5 of 2nd March, 1976. The application was processed to approval and offer of grant was issued under the cover of letter No. NCL. 7743/28 of 20th August, 1979 and accepted 20th September, 1979.

AND WHEREAS the two approvals, coupled with the offers of grants and acceptance thereof have thus tantamount to DOUBLE ALLOCATION.

AND WHEREAS in an effort to rectify the position it was detected that all those documents forwarded by Alhaji Halliru Abdullahi upon which the allocation of Plot 109 on Plan NCLP.109 was based, were in fact photostat copies of the original documents upon which the allocation in his favour of Plot No. 8 on Plan No. NCLP.108 was based. The said Alhaji Halliru Abdullahi has up till the time of detecting these anomalies not formerly applied for the allocation of Plot. No. 9 on Plan No.NCLP.109. Hence I decided to revoke his Certificate of Occupancy No. NC.5200 for good cause, particularly for the following reasons:-

(i) There was no formal application for the allocation of Plot No. 9 on Plan No. NCLP. 109 from Alhaji Halliru Abdullahi. The Photostat copies of the documents upon which the allocation was based seemed to have been fraudulently obtained. Both allocation and the issuance of the Certificate of Occupancy were thus highly irregular and not in conformity with the laid down procedure,

(ii) Alhaji Halliru Abdullahi has already obtained, in the same vicinity, the allocation of Plot No.8 on Plan No. NCLP.109 whereas Alhaji Dahiru Saude has none within the vicinity.

(iii) Alhaji Halliru Abdullahi had no specific industrial proposal, whose viability, under normal circumstances ought to have been found acceptable by the State Minister of Trade and Industries prior to the approval to the allocation of the plot. In fact Ministry of Trade and Industry had never been formerly requested for any viability assessment. Letter No. 8/TID/786/20 of 17th February, 1978 purporting to be that Ministry’s recommendation was found to have nothing to do with the allocation of the said plot, and

(iv) Alhaji Oahiru Saude has on the other hand, specific Industrial Project – Soap Production, whose viability was assessed by the Ministry of Trade and Industry and found acceptable vide Letter No. 8/TID/35/S1/78 of 9th August, 1978.

NOW THEREFORE, in exercise of the powers conferred upon me by Section 34(2)(c) of the Land Tenure Law (Cap. 59) I hereby revoke with effect from the 28th day of November, 1980. the said Right of Occupancy of the said Alhaji Halliru Abdullahi over that piece of land at Plot No.9 on NCLP.109 – Katsina Industrial Estate on the Plan numbered NCLP.109 and more particularly described in the schedule to the said Certificate of Occupancy numbered NC.5200.

Given under my hand this 28th day of Nov. 1980.

(Sgd.)

Governor,

Kaduna State of Nigeria.”

At the hearing of the case before Mohammed. C.J.. counsel for the 1st and 2nd defendants, namely the Governor and Attorney-General of Kaduna State respectively, conceded that the revocation of the plaintiff’s right of occupancy was illegal, null and void since the revocation was not in accordance with the provisions of Section 34 Subsection (2)(c) of the Land Tenure Law. Learned Chief Judge, therefore, entered judgment for the plaintiff in the following terms.

“I accordingly, make all the declarations sought by the applicant (sic plaintiff). I set aside the revocation and hereby issue the order restraining all the respondents, (sic defendants) their agents, servants, privies or anyone acting by their authority, express or implied from taking possession of or doing any act inconsistent with or contesting the rights and interests of the applicant over the land subject of Certificate of Occupancy No.NC.5200.

I assess costs at N350.00 against the first two defendants and N150.00 against the 3rd respondent (sic).”

The 3rd defendant appealed to the Court of Appeal against the decision complaining thus –

“1. That the decision is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence before the trial court.

2. The learned trial Judge erred in law in trying the suit without calling for oral evidence to resolve the affidavit evidence which were irreconcilably in conflict.
3. The learned trial Judge erred in law when he held that the commencement of the suit by way of originating summons for the enforcement of a fundamental right is not fatal to the plaintiff’s case.
4. The learned trial Judge erred in law in failing to consider whether the reason stated in the revocation order by which the plaintiff’s right of occupancy was revoked amounted to good cause, and in holding that particulars of good cause enumerated in Section 34(2) of the Land Tenure Law 1963 is exhaustive.
5. The grant of the declarations and the order of injunction sought by the plaintiff/respondent instead of the alternative remedy of compensation also claimed by the plaintiff/respondent is in all the circumstances of this case unreasonable and inequitable.
6. The learned trial Judge erred in law in trying the suit and entering judgment in favour of the respondent when the suit was incompetent and not properly before the court.”

The appeal was unsuccessful and it was dismissed by the Court of Appeal (Maidama. Akpata and Ogundere, JJ.C.A.). Hence the further appeal to this court. The complaints before us are based on three grounds of appeal and these have been formulated, in the appellant’s brief of argument, into three issues for determination which read-

“(a) Whether or not the signing of the originating summons in this suit by the respondent’s counsel was a mere procedural error or irregularity which could be waived by the appellant or whether it was a fundamental defect that affects the competence of the suit and consequently the jurisdiction of the court to entertain it.

(b) Whether or not the issues as itemised in the grounds of appeal and canvassed by both parties before the Court of Appeal were those actually adjudicated and pronounced upon by the said court or the said court suo motu formulated its own issues, canvassed them and based its decision on them without calling upon both parties to address them (sic) on those issues so raised suo motu

(c) Whether or not Section 28 of the Land Use Act has impliedly or expressly repealed the provisions of Section 34 of the Land Tenure Law, in which case the Governor cannot any more act under the said Section of the Land Tenure Law but under the Land Use Act. 1978.”

Arguing the first issue for determination, learned counsel for the appellant canvassed that by virtue of Order 2 rule 1(1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 and Form 2 in the Appendix to the Rules together with the provisions of the Kaduna State High Court (Civil Procedure) Rules, 1977 an originating summons must be signed by a Judge who is seised with the matter. Furthermore, it was argued that the originating summons must be sealed and signed by a Judge or any officer of the High Court that has been authorised by the Chief Judge of Kaduna State, since the summons is a command. The rationale behind the originating summons being sealed and signed by a Judge was submitted to be that only a Judge has coercive powers to punish disobedience to the command in the originating summons. Consequently, a legal practitioner who has no such coercive power could not, it was contended, compel any person to attend a court to answer any question or accept or deny any liability. Therefore, when a counsel signed the originating summons in the present case he acted illegally since he did not have the authority to sign the originating summons. Hence, learned counsel for the appellant submitted on the authority of Madukolu & Ors. v. Nkemdilim (1962) 1 All N.L.R. 587 at p.594; Nzonwanne & Ors. v. Igwe & Ors. (1976) 2 S.C. 11 at p.20; Uttah v. Independence Breweries Ltd. (1974) 2 S.C. 7 at p.10; Okwuosa v. Okwuosa (1974) 2 S.C. 13 at p.20; Ike & Ors. v. Patrick Nze & Ors. (1975) 2 S.C. 1 at p.7 and Mcfoy v. U.A.C. Ltd. (1961) 3 All E.R. 1169 at p.172 that the originating summons was null and void and the High Court by reason of the nullity of the originating summons was incompetent to hear the suit. As a result, he argued, that the proceedings before the High Court were incurably bad and are as such null and void.

In reply, learned Senior Advocate for the respondent, submitted that the fact that the originating summons was not signed by a Judge of the High Court of Kaduna State was not fatal to the proceedings, nor was the trial of the case a nullity. He argued that the absence of the signature of a Judge on the originating summons is a mere technicality which should not be allowed to operate in defeat of a course of justice. However, learned Senior Advocate conceded that an originating summons which is irregular, though not illegal, may be set aside if there is a prompt objection raised by the party complaining against the irregularity. He relied on Ezomo v. Oyakhire (1985) 1

N.W.L.R. (Pt.2) 195 at p.202; Noibi v. Fikolati (1987) 1 N.W.L.R (Pt.52) 619 at p. 632 and Akhiwu v. The Principal Lotteries Officer Midwest State & Anor. (1972) 1 All N.L.R. (Part 1) 229 at p.234 to submit that the appellant was late in challenging the validity of the originating summons on appeal instead of the beginning of the trial. Finally learned Senior Advocate submitted that the irregularity in the originating summons did not affect the competence of the trial court to the extent that the trial could be rendered a nullity. The appellant’s contention, he argued, was based on mere technicality which did not affect the substance of the case.

It is clear from the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 1979 that nowhere in the body of the Rules is it provided that whenever an originating summons is being taken out it must be signed by a Judge of the High Court to which the originating summons relates. The Rules are silent on such a provision. However, the form of the originating summons which is prescribed in the Appendix to the Rules as Form 2 implies that the originating summons would be signed by a Judge. But nowhere is it provided that it is mandatory for a Judge to sign the originating summons. That notwithstanding, a close examination of Form 2 will reveal that directives are being given to a prospective defendant in an action to do certain things. Some of the directions read as follows –

“Let the defendant, within 14 days (or if the summons is to be served out of the jurisdiction, insert here the time for appearance fixed by the order giving leave to issue the summons and serve it out of the jurisdiction) after service of this summons on him, inclusive of the day of service, cause an appearance to be entered to this summons, which is issued on the application of the plaintiff…”

“If the defendant does not enter an appearance, such judgment may be given or order made or in relation to him as the court may think just and expedient.

The defendant may enter an appearance in person or by a solicitor by handing in the appropriate forms, duly completed, at the Federal High Court at or in the High Court of……..State sitting.

Surely, neither the plaintiff nor his counsel would be expected to issue these directives to the defendant, for the defendant who is at loggerheads with the plaintiff could ignore such directives and to no consequence, since neither the plaintiff nor his counsel could have any power to carryout or enforce the sanctions contained in the directions. It is only a Judge that is conferred with such coercive powers. It, therefore, follows that the Fundamental Rights (Enforcement Procedure) Rules, contemplate that an originating summons issued in the form of Form 2 thereof would be signed by a Judge. What would be the effect if any person other than a Judge signs the originating summons need not bother us here in view of what I intend to state anon. Suffice it to say that it is when a point on procedural irregularity is timeously and properly raised that it becomes necessary for an Appeal Court and indeed a trial court to consider its merit.

It has since been established by a plethora of authorities that the appropriate time at which a party to proceedings should raise an objection based on procedural irregularity is at the commencement of the proceedings or at the time when the irregularity arises. If the party sleeps on that right and allows the proceedings to continue on the irregularity to finality, then the party cannot be heard to complain, at the concluding stage of the proceedings or on appeal thereafter that there was a procedural irregularity which vitiated the proceedings- See C.F.A.O. v. The Onitsha Industries Ltd. 11 N.L.R. 102 at p.103; Johnson v. Aderemi & Ors. 13 W.A.C.A. 297; Adebayo & Ors. v. Chief Shonowo & Ors. (1969) 1 All N.L.R. 176 at p.190; Ashiru Noibi v. Fikolati & Anor. (1987) 1 N.W.L.R. (Part 52) 619 at p. 632 and Ezomo v. Oyakhire (1985) 1 N.W.L.R. (Part 2) 195 at pp.202-203. The only exception to this general rule is that the party would be allowed to complain on appeal if it can show that it had suffered a miscarriage of justice by reason of the procedural irregularity. In Adebayo & Ors. v. Chief Shonowo & Ors. (supra) Coker, J.S.C., observed as follows on p.190 thereof-

“Even if the procedure adopted by the applicant Adebayo were wrong, we think that it is now much too late in the day for the directors to complain about it. They failed to challenge the correctness of the procedure at the commencement of the proceedings or on their entry into the case and sought unsuccessfully to get the Statement of Delinquencies filed by the applicant Adebayo struck out. Clearly in those circumstances the adoption of a wrong procedure would be no more than an irregularity, and would not render the entire proceedings a nullity as was submitted by learned counsel for the director Kamson: so unless a miscarriage of justice is thereby alleged and proved, the proceedings would not be struck out. See In re Kellock (1887) 56 T.L.R. 887; also Allen v. Oakey (1890) 62 T.E.R. 724.” (Italics mine)

In the present case no allegation whatsoever of miscarriage of justice has been made by the appellant. It is not, in fact, his case that he suffered a miscarriage of justice by reason of the irregularity. It follows that the complaint of the appellant that the originating summons was not signed by a Judge being a procedural irregularity is no more than a storm in a tea cup. It is an exercise in futility which does not enhance his appeal any further.

With regard to the second issue for determination, the appellant’s contention is that the Court of Appeal (per Ogundere, J.C.A.) raised issues suo motu and decided the appeal before it on those issues without inviting the parties or giving them the opportunity of being heard on the issues. Learned counsel for the appellant submitted that a miscarriage of justice was occasioned by reason of the court’s action. Learned Senior Advocate for the respondent conceded that new issues were raised on the lead judgment of the Court of Appeal but submitted that no miscarriage of justice had been occasioned.

It is true that Ogundere, J.C.A., raised new issues in his lead judgment when he commenced the judgment as follows –

“The primary question that arises in this appeal is whether or not a person who has no privity of contract with another person can pursue an action on appeal for the rescission of that contract. The secondary question is whether or not a person, who has a mere “spes successionis”, or a hope of stepping into the shoes of the owner of a legal estate, arising from a contract, on the cancellation or rescission of that legal estate, can pursue an action for the rescission of such a contract or the revocation of such an estate suo motu, even when the contracting party had abandoned its action for rescission of the contract or the revocation of the estate. The tertiary question is whether such a person has an estate or interest in law or in equity to warrant a resort to law or equity. There is also the question of the propriety of the use of originating summons for enforcing a fundamental human right or the interpretation of a statute.”

It is also clear from the grounds of appeal in the Court of Appeal (earlier quoted herein) and the record of proceedings that the issues so formulated were not part of the defendant’s appeal in that court nor were the parties called upon to address the Court of Appeal in that respect. This is a gross misdirection on the part of the learned Justice of Appeal and a blatant disregard, if I may say so, of the numerous warnings issued by this court to the effect that it is not the business of an appeal court to deal with an issue that is not raised before it – See Chief Lahan & Ors. v. Lajoyetan & Ors. (1972) 6 S.C. 190 at p.200; Kuti &Anor. v. Jibowu & Anor. (1972) 1 All N.L.R. (Part 11) 180 at p.192; Salawu Ajao v. Karimu Ashiru & Ors. (1973) 1 All N.L.R (Part 11) 51 at p.63; Atanda & Anor v. Lakanmi (1974) 1 All N.L.R. (P.1) 168 at 178; Kuti v. Balogun (1978) 1 L.R.N. 353 at p.357; Olusanya v. Olusanya (1983) 1 S.C. NLR 134 at p. 139; Chief Ebba v. Chief Ogodo & Anor. (1984) 4 S.C. 84 at p.112; Overseas Construction Ltd. v. Creek Enterprises Ltd. & Ors. (1985) 3 N.W.L.R. (Pt.13) 407 at p.408; Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 N.W.L.R. (Pt.39) 1 at p.21 and A-G. of Anambra State v. CN. Onuselogu Enterprises Ltd. (1987) 4 N.W.L.R. (Pt.66) 547 at p.561.

In Lahan’s case (supra) Sowemimo, J.S.C., (as he then was) observed as follows-

“We regret we cannot but repeat, that a procedure whereby a Court of Appeal takes up a point before parties or their counsel are heard and decides the issue is most inappropriate and irregular. We have often in the past drawn attention to the impropriety of dealing with an appeal in this way and it is our hope that this practice will be discontinued.”

In Olusanya’s case (supra) I said at p.139 thereof-

“This court has said on a number of occasions that although an appeal court is entitled, in its discretion, to take points suo motu, if it sees fit to do so, yet that discretion must be exercised sparingly and in exceptional circumstances only. Where the points are so taken the parties must be given the opportunity to address the appeal court before decision on the points is made by the appeal court.”

(Italics mine)

Again in Ebba’s case (supra), Kayode Eso, J.S.C., strongly stated the point when he said at p.112 thereof-

‘With utmost respect, it should be plain to a court of appeal that when an issue is not placed before it, it has no business whatsoever to deal with it. A Court of Appeal is not a knight errant looking for skirmishes all about the place.”

It is significant to point out that although Akpata, J.C.A., agreed that the appeal before the Court of Appeal had failed, he disassociated himself from the pronouncement of Ogundere, J.C.A., that is being challenged here. Learned Justice’s concurring judgment reads as follows-

“I have been privileged to have a preview of the judgment of my learned brother, Ogundere, J.C.A., just read. I am in complete agreement with him that the appeal be dismissed. There is, however, one aspect of the judgment with which I disagree and from which I wish to disassociate myself. It is that portion dealing extensively with “Privity of Contract.” My learned brother’s exposition of the law relating to “Privity of Contract” or whether a stranger to a contract can maintain an action to set it aside demands respect.

Looking at the case from his point of view, his reasoning and the conclusion reached by him cannot be faulted. I am convinced, however, that looking at the case from a broader perspective the question of “Privity of Contract” or “Spes Succession” is only remotely, if at all, relevant to this appeal.

The simple issue in the appeal, stripped of the legal parties and technicalities, which do not rightly attach to it is whether the respondent’s Certificate of Occupancy is validly or lawfully revoked to have warranted a Certificate of Occupancy being issued in favour of the appellant over the same parcel of land. Since the trial Judge held, in effect, that the respondent was entitled to the land, the appellant was pre-eminently competent to appeal against the decision firstly, as a defendant in the case and, secondly, as a person with vested interest in the land in question, if even he was not made a party.

However this appeal is bound to fail, not because the appellant was not privy to the contract between the Military Governor and the respondent, but because the revocation of the Certificate of Occupancy granted to the respondent was wrong in law ab initio, and therefore null and void. The Military Governor cannot validly revoke any Certificate of Occupancy under Section 34 of the Land Tenure Law.”

There is no doubt that the Court of Appeal committed a serious misdirection in its lead judgment (per Ogundere, J.C.A.) when it inappropriately raised and considered new issues in the appeal before it. The question is: what is the effect of the misdirection Unless the misdirection is so grave as to have occasioned substantial miscarriage of justice, an appeal court will not ordinarily interfere with the decision of the lower court. In Isaac Ayoola v. Adebayo & Ors. (1969) 1 All N.L.R.159 at p.164 Coker, J.S.C., made the following observation –

“The success of the plaintiffs before the learned appellate Judge on grounds of appeal Nos. 4 and 5 cannot, ipso facto, entitle the plaintiffs to succeed on the appeal unless they could show as well that the error in law or misdirection alleged by them must have affected the judgment in a way which is crucial to the decision.”

Under the provisions of Order 8 rule 13 of the Supreme Court Rules, 1985 this court has the power to order a new trial on the ground of misdirection, but it will not exercise that power unless it is satisfied that substantial wrong or miscarriage of justice has been occasioned by reason of the misdirection. Order 8 rule 13(1) and (2) reads –

“13. (1) On the hearing of any appeal the court may, if it thinks fit, make any such order as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the court below.

(2) The court shall not be bound to order a new trial on the ground of misdirection of the improper admission or rejection of evidence, unless in the opinion of the court some substantial wrong or miscarriage of justice has been thereby occasioned.

I am of the opinion that the misdirection involved in this case has not been shown to have given rise to any miscarriage of justice, as was the case in Kurt’s case (supra) and Olusanya’s case (supra), so as to call for the ordering of a new hearing in the Court of Appeal or the allowing of the appeal and setting aside the decision of the Court of Appeal. I entirely agree with Akpata, J.C.A., when he held in his judgment (quoted above), that shorn of the misdirection in the lead judgment of Ogundere, J.C.A., the appeal before that court was bound to fail.

The final issue for determination in this appeal is whether the Governor of Kaduna State had the power to revoke (as he did) the respondent’s right of occupancy under the provisions of Section 34 subsection (2)(c) of the Land Tenure Law Cap. 69 in view of the provisions of Section 28 of the Land Use Act, 1978.The Court of Appeal (per Ogundere, J.C.A.) held as follows-

“Quite apart from the position at Common Law, Dada’s case (i.e. Governor of Kaduna State & Anor. v. Dada (1986) 4 N.W.L.R. (PU8) 687) has established that a Governor cannot revoke a Certificate of Occupancy under Section 34 of the Land Tenure Law, as the 1st defendant Governor unsuccessfully sought to do in the case in hand, but only under Section 28 of the Land Use Act.”

Learned counsel for the appellant argued that the Court of Appeal was in error when it held that the Governor of Kaduna State could not revoke a right of occupancy under Section 34 of the Land Tenure Law. He contended that that was not what this court decided in the case cited and submitted further that effect must be given to both the Land Use Act and the Land Tenure Law as they are “existing laws” by virtue of the provisions of Section 274 of the Constitution of the Federation of Nigeria, 1979 and Section 4 of the Land Use Act, 1978.

In reply, learned Senior Advocate conceded that the decision in Dada’s case did not specifically state which law, between the Land Use Act and the Land Tenure Law, applies to the revocation of a certificate of occupancy in Kaduna State. He referred to the lead judgment of Kazeem, J.S.C., in Dada’s case on pages 695 to 696 thereof which states as follows-

“In the circumstances the declaration made by the Court of Appeal on the issue, that the purported revocation of the Certificate of Occupancy No. 6483 of 6th May, 1954 was invalid, unlawful, null and void and of no effect whatsoever still subsists.”

and submitted that the observations made by Bello, J.S.C. (as he then was) and me on pp.696-698 and 699-700 thereof respectively should be upheld by this court in this case. He, therefore, urged upon us that we should hold that the purported revocation of respondent’s certificate of occupancy No. NC.5200 under the provisions of Section 34 subsection (2)(c) was invalid, null and void.

I think on a proper study of the decision of this court in Dada’s case it will appear clearly that this court did not hold that a revocation of right of occupancy under Section 34(2)(c) of the Land Tenure Law was invalid or null and void. It was the Court of Appeal that so decided when it heard the appeal in that case. The decision of the Court of Appeal on that particular point was not technically challenged in this court since the ground that raised the question was struck-out in limine, and so this court did not make any pronouncement confirming or disagreeing with the dictum of the Court of Appeal. Therefore the position of the law, so far, is as has been decided by the Court of Appeal in Dada’s case. That being the case, Ogundere, J.C.A., was right in following the decision because he was bound to do so by virtue of the doctrine of stare decisis. However, the learned Justice was wrong in regarding the dictum as that of this court. This court is yet to pronounce on the accuracy or otherwise of the decision of the Court of Appeal on the point as it has not done so in Dada’s case.

Now Learned Senior Advocate has urged that we should hold that there can be no valid revocation of right of occupancy under Section 34 of the Land Tenure Law, since by the interpretative doctrine of covering the field, Section 28 of the Land Use Act, 1978 has made sufficient provisions on the subject. I am afraid we cannot accede to the request. It will take the case beyond the scope of the appellant’s appeal. There is neither a notice of cross-appeal nor respondent’s notice filed by the respondent. Order 8 rule 3(1), (2) and (3) of the Supreme Court Rules, 1985 provides thus –

“(1) A respondent who, not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect specifying the grounds of that contention and the precise form of the order which he proposes to ask the court to make, or to make in that event, as the case may be.

(2) A respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds other than those relied upon by that court must give notice to that effect specifying the grounds of that contention.

(3) Except with the leave of the court, a respondent shall not be entitled on the hearing of the appeal to contend that the decision of the court below should be varied upon grounds not specified in a notice given under this rule, to apply for any relief not so specified or to support the decision of the court below upon any grounds not relied upon by that court or specified in such a notice.”

Although the appellant partly succeeds in his last issue for determination, in showing that the Court of Appeal was in error when it held that the Supreme Court held in Dada’s case (supra) that a revocation of a right of occupancy under Section 34 of the Land Tenure Law was invalid, null and void, the appeal has, for the reasons given, on the whole failed. Accordingly, it is hereby dismissed with N500.00 costs to the respondent.

OBASEKI, J.S.C.: I have had the privilege of reading in advance the draft of the judgment just delivered by my learned brother, Uwais, J.S.C. I agree with the opinions expressed therein on all the issues raised in this appeal.

The appellant was the 3rd defendant to a claim commenced by originating summons taken out by the respondent under Order 2 Rule 1(1) of the Fundamental Rights (Enforcement Procedure) Rules in the High Court of Justice of Kaduna State holden at Kaduna on the 9th day of March, 1981.

The 1st defendant was the Governor of Kaduna State and the 2nd defendant was the Attorney-General of Kaduna State. By the said summons, the respondent claimed:-

“(1) A declaration that the purported revocation by the first defendant of the plaintiff’s statutory right of occupancy No.NC.5200 dated 6th March, 1979 and registered as No. KDR.74 at page 74 Volume 15 (Certificate of Occupancy) of the Lands Registry in the office at Kaduna is invalid ultra vires the powers of the defendants null and void and of no effect whatsoever and should accordingly be set aside.

(2) A declaration that Section 34(2)(c) of the Land Tenure Law (Cap. 59) Laws of Northern Nigeria (As applicable in Kaduna State) under which the first defendant revoked the plaintiff’s said Right of Occupancy does not confer on the defendant the power to effect such a revocation because the facts and reasons upon which the first defendant based the said revocation are not within the contemplation of the Land Tenure Law Cap. 59 aforesaid.

(3) A declaration that the purported revocation of the plaintiff’s said Certificate of Occupancy without compensation is inconsistent with and a contravention of the provisions and intendment of Section 40(1)(a) and (b) of the Constitution of the Federal Republic of Nigeria 1979.

(4) A declaration that the reasons given for the revocation as contained in the Revocation Order dated 28th day of November 1980 and registered as No. KDR.75 at page 75 in Volume 28 (Miscellaneous) of the Kaduna State Lands Registry in (the office at Kaduna are invalid as they do not fall within the reasons set out in Section 28(1) and 2(6) and Section 50(1) of the Land Use Act 1978 and/or Section 2 and 34(1) and (2) of the Land Tenure Law Cap. 59 Laws of Northern Nigeria applicable to Kaduna State. Alternatively and or Section 40(2) of the Constitution of the Federal Republic of Nigeria 1979.

and seeks an order of court in the following terms, namely:

(5) An order restraining the defendants, their servants, privies or anyone acting by any authority express or implied of the defendants from taking possession of or doing any act inconsistent with or contesting with rights and interest of the plaintiff over the land subject of the aforementioned Certificate of Occupancy.

Or alternatively, seeks an order in the following terms, namely:

(6) An order that the plaintiff be adequately compensated by the defendants in the sum of N50,000.00 it being a fair and reasonable and just compensation for the compulsory acquisition of the said plaintiff’s landed property covered by and subject of Certificate No. NC.5200 dated 26th March, 1979.”

The matter was decided in the High Court on affidavit evidence. There was no oral hearing although the affidavit of evidence of the respondent was in conflict with that of the plaintiff in several material aspects.

The 1st and 2nd defendants having conceded the correctness of plaintiffs objection, Muhammed, C.J., gave judgment in favour of the plaintiff and granted him all the declarations and the orders of injunction claimed.

The 3rd defendant’s appeal to the Court of Appeal was unsuccessful. Still dissatisfied, he has brought this appeal.

The grounds of appeal and the facts of the case have been set out in the judgment by my learned brother, Uwais, J.S.C., and except as may be necessary, I shall not repeat them in this judgment.

The issues formulated by the appellant for determination in this appeal are threefold and they read as follows:

“(a) Whether or not the signing of the originating summons in this suit by the respondent’s counsel was a mere procedural error or irregularity which could be waived by the appellant or whether it was a fundamental defect that affects the competence of the suit and consequently the jurisdiction of the court to take it.

(b) Whether or not the issues as claimed in the grounds of appeal and canvassed by both parties before the Court of Appeal were those actually adjudicated and pronounced upon by the said court or the said court suo motu formulated its own issues canvassed them and based its decision on them without calling on both parties to address them on those issues so raised suo motu.

(c) Whether or not Section 28 of the Land Use Act impliedly or expressly repealed the provisions of section 34 of the Land Tenure Law in which case the Governor cannot anymore act under the said section of the Land Tenure Law but under the Act.”

The respondent formulated three issues slightly differently in his brief as follows:

“(i) Whether the signing of the originating summons in this suit by the respondent’s counsel was an irregularity and therefore not a fundamental defect which affects the competence of the court to adjudicate on same.

(ii) Whether there were issues raised suo motu by the court below and if there were whether such issues affected the decision of the court below.

(iii) Whether or not the Governor could have validly revoked the certificate of occupancy under section 34(2)(C) of the Land Tenure Law.”

I will now treat the issues one by one. The first issue raised complained of the originating summons. It was contended by learned counsel for the appellant that as the originating summons was not signed by the Judge of the High Court from which it issued, it was not merely irregular but null and void.

The respondent’s counsel, Alhaji Abdullahi Ibrahim, S.A.N., submitted that the fact that the summons was not signed by a Judge of the High Court, Kaduna is not fatal to the case and contended that the signing of the originating summons by a Judge is not a judicial but a ministerial act and that failure to sign the summons does not render it illegal.

I have looked up the form Form 2 for originating summons Order 2 Rule 1(1) and Order 4 Rule 1(1) of the Fundamental Rights (Enforcement) Rules 1979 provided in the Appendix to the Rules. It is the Direction for Appearance that has to be signed by the Judge.

If therefore, in the absence of the Directions for Appearance, the respondent or defendant appears to the summons and completes the Form of Appearance, he cannot complain. Order 2 Rule 1 of the Rules is clear on the point that the applicant for the order has an option to come to court by notice of motion or by originating summons.

The name and address of the solicitor for the plaintiff or the plaintiff himself who takes out the summons must appear on the summons. There is nothing in the summons on record to show that the function of the Judge was usurped by the solicitor to the respondent in the instant appeal. The portion of the summons to be signed by the Judge which was omitted reads:

“Direction For Entering Appearance

The defendant may enter an appearance in person or by a solicitor by handing in the appropriate forms duly completed at the Federal High Court at or the High Court of Kaduna State sitting at Kaduna

For service

………………………………………….

on defendant or solicitor acting for him.”

This Direction is absent from the summons on record. There is no evidence that it was issued by the solicitor to the plaintiff/respondent. The absence of this Direction does not, in my opinion, render the summons null and void.

The appellant entered appearance, filed a counter affidavit setting out facts supporting his claim to Certificate of Occupancy and traversing the claim of the respondent to right of occupancy in respect of Plot No.9. The appellant appeared by counsel, Usman Muhammed on 5/5/81 before Kola Aroyewun, J. , in the High Court for the hearing of the application. The appellant’s counsel featured very prominently in the proceedings of the day in the High Court and the court record ended the proceedings of the day in the following words:

“With the consent of all the counsel, the case is adjourned to 26th and 27th October, 1981 for hearing.”

The appellant did not object to the summons on 5/5/81 but filed a further counter-affidavit on 13/5/81 and contested the motion for interim injunction without success. There is therefore, in my opinion, no substance in the submission that the originating summons is null and void and I so hold.

The cases on jurisdiction and competence of the court including Madukolu & Ors. v. Nkemdilim (1962) 1 All N.L.R. 587, and Macfoy v. United African Company (1961) 3 All E.R. 1169 at 1172-3 cited in support of the submission of nullity of the originating summons are inapplicable and of no assistance to the appellant. The submission that the subsequent proceedings following entry of appearance to the summons are illegal is also without foundation and I reject it. This is not a case of mere acquiescence to the proceedings or parties conferring jurisdiction on the court as contended by the appellant. It is on record that the respondent regularly obtained leave of the court to apply for the order and following the grant of leave, prepared the originating summons and filed it in court after payment.

If the appellant had objected to the absence of Direction for Appearance and the signature of the Judge before the learned trial Judge, The nullity of the summons could not have been in question and examined. If the failure of the appellant to object to the court for absence of The Direction does not constitute waiver of his right to that Direction, I do not know what the appearance of the appellant and active participation of the appellant could be evidence of. In my view, they constitute strong evidence of waiver as described in

Raimi Edun v. Odan Community (1980) 8-11 S.C. 103; and Bakare v. I.T.S.S. Apena & Ors. (1986) 4 N.W.L.R. (Pt.33) 1 at 20.

Turning to the second issue formulated by the appellant, the academic discourse on “Priority of Contract”, “spes successionis” and “locus standi”, interesting as it is, is an exercise not called for by the arguments and submissions of the parties before the court. The appellant was joined as defendant properly by the respondent in his summons as the interest of the appellant was likely to be adversely affected if judgment was delivered as happened in favour of the respondent.

Although the claims for declaratory judgment were not made against the appellant, the claim for injunction was definitely framed against the appellant along with the others. Issues arising from the grounds of appeal filed in the appeal to the Court of Appeal were expressly formulated by the appellant and the respondent in their briefs of arguments filed in the Court of Appeal. The appellant formulated five issues in the following terms:

(a) Whether the trial court was right in trying the suit on the basis of affidavit evidence only without calling for oral evidence to resolve the (conflict in) the affidavit evidence which were irreconcilably in conflict.

(b) Whether the commencement of the suit by originating summons for enforcement of fundamental rights is fatal to the claim;

(c) Whether the trial court was justified in holding that particulars of good cause stated in section 34(2) of the Land Tenure Law are exhaustive and that any other cause not specifically enumerated under the said section cannot amount to good cause;

(d) Whether the grant of declarations and injunction sought by the respondent instead of the alternative remedy of compensation also claimed by the respondent was in the circumstances of this case reasonable and equitable;

(e) Whether the entire proceedings are incompetent and a nullity in view of the fact that the originating summons was not signed by any Judge of the High Court of the State.

The respondent formulated only two issues as arising for determination in the Court of Appeal. They are:

(a) Whether the respondent’s Certificate of Occupancy was validly or lawfully revoked under section 34(2)(c) Land Tenure Law (Cap. 59) 1963 Laws of Northern Nigeria applicable in Kaduna State by the Governor of Kaduna State:

(b) Whether the lower court lacked jurisdiction to entertain and determine the subject matter oft he suit or there is any feature in the proceedings thus rendering the whole proceedings incompetent.

But the opening paragraph of the judgment of J.D. Ogundere, J.C.A. (with which Maidama and Akpata, JJ .C.A., concurred) set out three issues totally out of tune with the issues formulated by the parties. That opening paragraph reads:

1. The primary question that arises in this appeal is whether or not a person who has no privity of contract with another person can pursue an action on appeal for the recession of that contract.
2. The secondary question is whether or not a person who has amere “spes successionis” or a hope of stepping into the shoes of the owner of a legal estate arising from a contract on the cancellation or recession of that legal estate can pursue an action for recession of such a contract or the revocation of such an estate suo motu even when the contracting party had abandoned its action for recession of the contract, or the revocation of the estate.
3. The tertiary question is whether such a person has an estate or interest in law or in equity to warrant a resort to law or equity;
4. There is also the question of the propriety of the use of originating summons for enforcing a fundamental human right or interpretation of a statute.

The above questions for determination particularly questions numbered 1, 2 and 3 formulated by the learned Justice of the Court of Appeal do not arise from the ground of appeal and were not issues that could properly have been raised by the respondent who instituted the action against the appellant and obtained an order of injunction against the appellant in the High Court. The respondent cannot, in view of the above, question the locus standi of the appellant.

The 4th question formulated as regards the originating summons arose from ground 2 of the grounds of appeal.

Looking at the judgment, I observe that although the learned Justice has dealt with issues that never arose from the grounds argued, he adverted to the issues formulated by counsel. He set out the submissions of counsel after stating the facts in detail. The learned Justice, however, under the issues formulated by him, dealt with the issues formulated by the appellant and the respondent. The excursion to other issues raised Suo motu, though uncalled for, does not spell fatality to the judgment since the proper issues were covered. That disposes of the 2nd issue.

The 3rd issue that properly arises for determination in this appeal is as formulated by the respondent- whether or not the Governor could have validly revoked the Certificate of Occupancy under section 34(2)(c) of the Land Tenure Law. The Land Tenure Law has been kept alive by section 2 of the Land Use Act for the administration of the Act. Under the Land Tenure Law, the Governor has the power of revocation of statutory certificate of Occupancy. Similarly, under the Land Use Act, the power is preserved. The conditions or grounds for the exercise of the power have been spelt out by the Law and the Act. Those grounds are in respect of a grant not induced by mistake of fact.

It does not require an express provision of the Law or Act to give power to the Governor to correct errors made by him arising from a misunderstanding of the facts. If A applies for Plot X and B applies for Plot Y and Plot Z and approval for the allocation of the plot applied for is given, if plot Y is mistakenly given to A by the Governor and the mistake is subsequently discovered, the law gives the Governor inherent power to rectify the grant. That does not appear to be the case in the instant appeal.

It is unfortunate that the briefs filed by the parties failed to deal with the power of revocation to rectify mistakes. The express power of revocation a Military Governor has under the Land Use Act, 1978 is confined to revocation for overriding public interest as spelt out in section 23(2) and (3) of the Act and for requirement by the Federal Government for public purposes. There is no provision for revocation for any other grounds in the Act. However, section 5(2) of the Land Use Act creates a statutory revocation of all existing right on the grant of a statutory right of occupancy. It states:

“Upon the grant of a statutory right of occupancy under the provisions of subsection (1) of this section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.”

It cannot, therefore, be a correct statement of the law that the statutory right of occupancy granted to the appellant falls to the ground and became void as held by Ogundere, J.C.A., because the revocation of the statutory right of occupancy granted to the respondent was set aside. Upon a proper interpretation of subsection (2) of section 5 of the Land Use Act, a later statutory right of occupancy extinguishes all rights created by an earlier grant. To save an earlier grant of a statutory right of occupancy, the later right of occupancy must be expressly set aside.

The Land Tenure Law was imported into the Land Use Act by the Act itself. Section 4 of the Land Use Act stipulates that

“Until other provisions are made in that behalf and subject to the provisions of this Decree, land under the control of the Military Governor under this Decree shall be administered-

(a) in the case of a State where the Land Tenure Law of the former Northern Nigeria applies, in accordance with the provisions of that Law:

(b) in every other case, in accordance with the provisions of the State Land Law applicable in respect of State land in the State

and the provisions of the Land Tenure Law or the State Land Law, as the case may be, shall have effect with such modifications as would bring those laws into conformity with this Decree or its intendment.”

In other words, the provisions of Land Tenure Law is to be followed in the administration of land under the control and management of the Military Governor under the Land Use Act. Further, the provisions of the Land Tenure Law applicable for the purpose are to be modified so as to bring the law into conformity with the Act or its general intendment.

It is not the Land Tenure Law that is in operation but the Land Use Act. The provisions of the Land Tenure Law has therefore been incorporated into the Decree for the purpose of administering the lands under the control and management of the Military Governor. Since the Land Use Act came into force in March, 1978, the power a Governor/Military Governor has to grant a statutory right of occupancy and to revoke the statutory right of occupancy is derived from the Land Use Act and NOT the Land Tenure Law or State Land Law. It is a gross misconception of the true state of the law to think or hold the view that because the Land Use Act orders the administration of lands under the control of the Military Governor to be in accordance with the provisions of the Land Tenure Law in the Northern States that the powers exercised are powers under the Land Tenure Law.

Both the plaintiff and the 3rd defendant/applicant could only have obtained their grant of statutory right of occupancy under the Land Use Act. The revocation of the right of occupancy could equally only have been exercised under the Land Use Act although in compliance with the procedure prescribed by the Land Tenure Law. The reference to the Land Tenure Law in the Deed of Revocation was a mistake occasioned by a misreading of section 4(a) of the Land Use Act. The 1st and 2nd defendants properly conceded that the statutory right of occupancy was revoked under the repealed law.

The appeal fails and for the reasons set out above and in the judgment of my learned brother, Uwais, J.S.C., I hereby dismiss the appeal.

The respondent is entitled to costs fixed at N500.00.

ESO, J.S.C.: The points raised in this appeal are as important as they are Interesting.

Firstly the case was commenced ex parte under the Fundamental Rights (Enforcement Procedure) Rules 1979 S.1.1 of 1979. Those Rules strangely enough are seldom resorted to by parties bringing actions under Fundamental Human Rights as provided for by the Constitution. The Rules came into force on the 1st January 1980 and Order 1 Rule 2(2) thereof which deals with application for leave provides-

“2(2) No application for an order enforcing or securing the enforcement within that State of any such Rights shall be made unless leave thereof has been granted in accordance with this rule”.

Order 2 Rule 1 provides for what happens after leave has been obtained in accordance with Order 2 Rule 2(2) supra. Order 2 Rule 1 provides –

“1-(1) When leave has been granted to apply for the order being asked for, the application for such order must be made by notice of motion or by originating summons to the appropriate court, and unless the court or Judge granting leave has otherwise directed, there must be at least eight clear days between the service of the motion or summons and the day named therein for the hearing.”

The Rule provides further –

“From No.1 or 2 in the appendix may be used as appropriate” Let us take a look at the Form which may and not shall be used, especially Form 2, which would be hereinafter referred to as the authority relied upon by the appellant. The Form indicates that a Judge signs the Originating Summons which is the subject matter of Form 2 and which Originating Summons is of course an order by the Judge directed to the defendant.

The issues that arose in this court during the appeal could now be highlighted: They are as stated in the appellant’s Brief-

(a) Whether or not the signing of the originating summons in this suit by the respondent’s counsel was a mere procedural error or irregularity which could be waived by the appellant or whether it was a fundamental defect that affects the competence of the suit and consequently the jurisdiction of the court to entertain it.

(b) Whether or not the issues as itemised in the grounds of appeal and canvassed by both parties before the Court of Appeal were those actually adjudicated and pronounced upon by the said court or the said court suo motu formulated its own issues, canvassed them and based its decision on them without calling upon both parties to address them on those issues so raised suo motu

(c) Whether or not Section 28 of the Land Use Act has impliedly or expressly repealed the provisions of Section 34 of the Land Tenure Law, in which case the Governor cannot any more act under the said Section of the Land Tenure but under the Land Use Act, 1978.”

As my learned brother, Uwais, J.S.C., has so admirably stated all the facts in the case including the reliefs sought by the plaintiff in the High Court in his judgment, a draft of which I was privileged to view and with which I am in complete agreement, I do not intend to repeat herein all those statement of fact that have been stated by my learned brother. Indeed my contribution herein is an amplification of some of the points that arose in the issues for determination.

The contention of the appellant is simple: As an Originating Summons is a command, it is only the Judge who has the coercive powers to punish in case of disobedience. As this is a function to be performed by a Judge, performance by anybody else, counsel argued is illegal. He argued further that since the originating summons is incompetent, the proceedings which were founded upon it were also incurably bad and as such, null and void. He relied upon the dictum of Lord Denning in Macfoy v. U.A.C. Ltd. (1961) 3 All E.R.1169.

Indeed counsel carried the point to the extent of jurisdiction relying on Westminster Bank Ltd. v. Edwards (1942) A.C. 529; 536 saying that consent to irregularity would not give the court jurisdiction.

Abdullahi Ibrahim, S.A.N., learned counsel for the respondent treated the signing of an Originating Summons as a ministerial and non-judicial function of the Judge. Thus he created an escape clause.

It seems to me that the whole complaint of the appellant in this respect is an attempt to draw a red herring. Let us ask the question: Has the court, that is the High Court Jurisdiction to take an originating summons on the issues affecting Fundamental Rights Of course the answer is in the affirmative. The Constitution itself [that is the 1979 Constitution] spells out in its Chapter IV the Fundamental Rights of the citizen. So be it, but it did not stop there. Section 42 of the 1979 Constitution gives the High Court a special jurisdiction in respect thereof. It provides-

“42 – Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress”

To stop here for a moment, It is my view that it would not matter by what manner that application has been made, once it is clear that it seeks redress for infringement of the Rights so guaranteed under the Constitution. Assuming the Statutory Instrument – S.1.1 of 1979 had not been made, the person seeking redress could bring the action to court in any manner that clearly depicts complaint of the infringement of the Rights. Indeed the Statutory Instrument is so clearly worded that it does not lay the procedure therein down as the only procedure by which redress could be sought. Fundamental Rights are important and they are not just mere rights. They are fundamental. They belong to the citizen. These Rights have always existed even before orderliness prescribed rules for the manner they are to be sought.

What is required by the Form in question It is to order the defendant to cause an appearance to be entered to the summons. He could not disobey with impunity if the order has been issued by the court. And so, common sense demands that a Judge is required to sign the order. But before the order is given, Order 1 Rule 2 has demanded that an application for redress be made to the court. Leave of the court has to be given. See Order 1 Rule 2(2). A statement setting out inter alia the ground on which the application is sought. It is only after all these and the leave of the Judge, that the defendant is ever brought to court.

But if the defendant enters appearance without coercion, force or order, is he not in court and has he not submitted himself to the jurisdiction of the court in regard to the originating summons and contents thereof In Madukolu v. Nkemdilim (1962) 1 All N.L.R., this court held that for the court to be competent to deal with a matter-

“the subject matter of the case [must be] is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction”

In my respectful view, it is beyond argument in this case that the matter of Fundamental Rights is within that competence of the court.

But in any event, it has been consistently held by this court over a long line of authorities that this court should not be held up by technicalities. Justice can only be done in substance and not by impeding it with mere technical procedural irregularities. What can be the substance in the complaint of the appellant here The applicant, a Malumfashi Businessman, swore to an affidavit in support of his application on 6th August, 1981.

Before then, on 21st April 1981 the solicitor to the 3rd respondent Alhaji Saude had given notice to the applicant and the two other respondents to produce certain documents relevant to his defence. On 28th April, 1981 he swore to a 22-paragraph counter-affidavit contesting every aspect of the complaint. The Permanent Secretary Ministry of Lands and Surveys Kaduna on behalf of the 1st and 2nd respondents swore to a 31-paragraph counter-affidavit. On 13th May 1981 the 3rd respondent swore to another 14-paragraph counter affidavit. There were replies to the counter affidavit filed by the Malumfashi Businessman. And so, it was a really contested action, before the Judge, in his judgment, made all the declarations sought by the applicant, setting aside the revocation of the title. To my mind no miscarriage of justice occurred by the procedural error of bringing the respondent before the court.

In regard to the second issue, that is, as to the court’s action in formulating its own issues suo motu and without calling upon learned counsel to address him, this court has always frowned upon a Court of Appeal arrogating to itself determination of issues that were not placed before it. The Court of Appeal has constitutional jurisdiction to take appeals from decisions in criminal or civil proceedings before the High Court and not proceedings which were not before the High Court. A Court of Appeal in its majesty awaits the decisions of the High Court and not manufacture decisions to be appealed against. To say the least it is not even dignifying.

What harm has been done in this case. Has there been, in the language of Order 8 rule 13(2) of the Supreme Court Rules 1985, in the opinion of this court, some substantial wrong or miscarriage of justice I think not. On the 3rd issue, I think my learned brother has clearly brought out the misconception surrounding the decision of this court in Governor of Kaduna State & Anor. v. Dada (1986) 4 N. W.L.R. (Pt.38) 687. I share the view of my learned brother, Uwais, J.S.C., when he said in the lead judgment that this court never held that a revocation of right of occupancy under S.34(2)(c) of the Land Tenure Law was invalid, null and void.

With all the reasons and those admirably set down by my learned brother, Uwais, J.S.C., in his lead judgment, I too will dismiss the appeal with N500.00 to the respondent.

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SC.197/1987