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In The Supreme Court of Nigeria

On Friday, the 21st day of July 1989

SC 197/1987

 

Before Their Lordships

 

 

Andrews  Otutu Obaseki

......

Justice, Supreme Court

Kayode Eso

......

Justice, Supreme Court

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Chukwudifu Akunne Oputa

......

Justice, Supreme Court

Abdul Ganiyu Agbaje

......

Justice, Supreme Court

Ebenezer Babasanya Craig

......

Justice, Supreme Court

 

 

Between

 

Alhaji Dahiru Saude

......

Appellant

 

And

 

Alhaji Halliru Abdullahi

.......

Respondent

 

Judgement of the Court

Delivered by

Muhammadu Lawal 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 ex parte 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 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 any one 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 N 50,000.00 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 N 45,000.00 by the 22nd 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 dated 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.8551/2() 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.8851, 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/VoI. 1/6 of 12th January, 1978 and KT/CER/VOL.1/7 and "Form Land 1" 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/VOI.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 Ahdullahi 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.1 09 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 Aihaji 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/ T1D/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)   Aihaji Dahiru 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/TI D/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 in consistent 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 irreconciliably 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 plaintiffs 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(l) 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 powers 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.1172 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………

 

X X X X X X X X X

 

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.

 

X X X X X X

 

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 carry-out 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 cornplain 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 cornplaint 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 rnotu 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 II) 180 at p.192; Salawu Ajao V. Karimu Ashiru & Ors. (1973)1 All N.L.R (Part II) 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. A 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) I at p.21 and A-G. of Ananibra State V. C.N. Onaselogu 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 hefore 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 l 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's" 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 mis-direction 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.l64 ,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 Kuti'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 judgrnent 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. (Pt.38) 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.

 

 

Judgement Delivered by

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 any one 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 N 50,000.00 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 plaintiff's 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 respondents 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 ommitted 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 sub-mission 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 riullity 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. 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 of the 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 forrnulated 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 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 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 28(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 he 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.

 

 

Judgement delivered by

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 he 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 he 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 he 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 high-lighted: 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 statements 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 Lid. 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 2&h 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 ~981 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 F 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.

 

 

Judgement delivered by

Karibi-Whyte. J.S.C.

 

I have had the privilege of reading the judgment of my learned brother, Uwais, J.S.C., in this appeal. I agree entirely with the reasoning and endorse the conclusion that this appeal should be dismissed. I only wish to comment on the first issue for determination in this appeal, which involves the issue of whether or not the signing of the originating summons, by respondent's counsel in the process initiating the action was a mere procedural error, therefore an 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. In the latter case the proceedings are a nullity.

 

Counsel to the appellant, Mr. Akunyili, has in his brief of argument, and orally before us contended quite forcefully on this issue that where an originating summons which initiates an action is signed by counsel and not a Judge of the High Court, the proceedings thereafter are a nullity, having not been initiated by due process of law. He relied on the decisions of this court in Modukolu & 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 10; Okwuosa V. Okwuosa (1974) 2 S.C. 13 at p.20; Ike & Ors. V. Patrick Nzekwe & Ors. (1975)2 S.C. 1 at p.7; Macfoy V. U.A.C. Ltd. (1961) 3 All E.R. 1169 at 1172. It was submitted therefore that the originating summons which was signed by counsel to the plaintiff in this case was therefore a nullity, and the High Court by reason of the nullity was incompetent to hear the suit. The proceedings before the High Court are incurably bad, null and void.

 

Learned Senior Advocate for the respondent, Abdullahi Ibrahim, S.A.N., in his reply, submitted that this fact that the originating summons was not signed by a Judge of the High Court, was not fatal to the proceedings, and the proceedings initiated by virtue of the originating summons were not a nullity. Counsel then submitted that the absence of the signature of a Judge of the High Court on the originating summons is a mere technicality which should not be allowed to defeat the course of justice. Learned Senior Advocate conceded that the defect in the originating summons merely rendered the summons irregular, but not illegal. Accordingly, the summons could only be set aside if there was a prompt objection raised by a party complaining about the irregularity. The decisions of this court in 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;. Akhiwu V. Principal Lotteries Officer, Midwest State & Anor. (1972)1 All N.L.R. (Pt.1) 229 at p.234. Appellant having been late in challenging the validity of the originating summons, has lost the right to set it aside.

 

It was finally submitted that the irregularity in the originating summons did not affect the competence of the trial court.

 

The contention of the parties therefore on this issue can be reduced to whether the proceedings in the courts below are a nullity because counsel to the plaintiffs and not a Judge of the High Court signed the originating summons, as contended by the appellants or that the proceedings are valid, as contended by the respondents, the signing of the originating summons by counsel, and not by a Judge of the High Court, notwithstanding being a mere irregularity.

 

It is common ground that the action which was initiated by originating summons was brought in accordance with the provision of Order 2 Rule 1(1) of the Fundamental Rights (Enforcement Procedure) Rules 1979. The only issue in contention is whether the absence of the signature of a High Court Judge on the originating summons constituted such a defect to the original summons as to render the proceedings subsequent thereto a nullity. In effect the appellant is contending that the proceedings have been initiated without due process of law. The question therefore is, when is an action initiated with due process of law? This court has spelt out in Madukolu V. Nkemdilim (supra) the circumstances where proceedings can be regarded as a nullity. These are where

 

1.     The court is not properly constituted as regards numbers and qualification of the members of the bench

 

2.     The subject matter of the action is not within the jurisdiction of the court

 

3.     The case before the court is not initiated by due process of law, or that there is a condition precedent to the exercise of jurisdiction.

 

The third of the conditions prescribed, and which is relied upon by the appellant in this appeal is where the action comes before the court of trial without due process of law. There is non-compliance with due process of law when the procedural requirements have not been complied with, or the preconditions for the exercise of jurisdiction have not been complied with. In such a circumstance, as in the other two cases, the defect is fatal to the competence of the trial court to entertain the suit. This is because the court will in such a situation not be seised with jurisdiction in respect of the action.

 

The facts have been fully and lucidly stated in the judgment of my learned brother, Uwais, J.S.C. I do not wish to repeat them. I adopt them for the purpose of this judgment.

 

I have read all the cases cited to us by counsel on both sides. It is however clear from the special facts of the case that although the general principles are the same, none of the decisions governs the situation before us. The issue of the absence of the signature of the Judge in an originating summons governing the entry of appearance is peculiar to Form No.2.

 

It is pertinent to observe that the competence of the court to exercise jurisdiction is not questioned on any other than the ground alleging want of signature of the Judge. Accordingly, for appellants to succeed they must show that the absence of the signature of a High Court Judge to an originating summons, is fatal to the validity of the proceedings initiated by it. Stricto sensu, there is no provision in the rules of court indicating the effect of non-compliance with its provisions.

 

The main thrust of the argument of counsel to the appellant on this issue is that there was non-compliance with the provisions of Order 2 r.1(1) of the F Fundamental Rights (Enforcement Procedure) Rules 1979

 

For a proper appreciation of the contention of the appellants, I consider it helpful to reproduce the provisions of Order 2 rule 1(1) relied upon; which are as follows –

 

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.

 

A careful reading of the rule discloses that an applicant seeking to enforce a provision under Chapter IV of the Constitution 1979 has an option either to proceed by way of motion, and to use Form No.1 in the Appendix for the purpose or by originating summons and to use Form No.2 in the Appendix.

 

There are significant differences in the wording of Form No.1 and Form No.2. The provision requires that Form No.1, which is by way of Motion, is to be signed by the applicant or his legal representative. Form No.2, which is the applicable Form in the instant case is in two parts and contains no such requirement, but there is provision for the signature of a Judge. The first part of the summons requiring the applicant to state the claims and seeking the determination of the court requires the applicant to state that the proceedings have been taken out by the solicitor for the plaintiff, whose address is required to be stated, or by the plaintiff who is suing in person.

 

The second part of the Form 2 giving directions for Entering appearance, requires the defendant to enter appearance in person or by a solicitor by handing in the appropriate forms duly completed at the relevant High Court. It is this part that is governed by the signature of a Judge of the High Court.

 

An examination of the originating summons in this appeal discloses a strict compliance by the applicant with Form No.2 in the Appendix.

 

The part of Form No.2 which contains the signature of a Judge of the High Court is the part of the form which the plaintiff is required to comply with. This part is for the compliance of the court.

 

The procedure is that on the applicant making the application in Order 2 r. 1(1) in respect of his claim and complying with the first part of Form 2 in the Appendix, the court or Judge to whom the application is made will in compliance with Order 4 r. 1(1), direct that the "originating summons as in the Form 2 in the Appendix be issued, or that an application therefore be made by notice of motion, as in the Form 3 or ,…….."

 

I reproduce below Form No.2 of the Appendix for ease of reference -

 

In the Federal High Court at……….High 

Court…….State……..Division

Suit No……………

(in the matter of……………….)

Between A.B. ………….Plaintiff

and

To C.D. of………..in the…………..of

 

Let the defendant, within 14 days (or if the summons is to be served out of the jurisdiction, insert 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, which is issued on the application of the plaintiff……….of……………..

 

By this summons the plaintiff claims against the defendant………….(or seeks the determination of the court of the following questions, namely, ………….or as may be).

 

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

DATED the……day of…………….19....

Note: This summons may not be served later than twelve calendar months beginning from the above date unless renewed by order of the court.

 

This summons was taken out by…………………………of………………………………….

the solicitor for the plaintiff whose address is………………………………………………or where the A plaintiff sues in person this summons was taken out by the said plaintiff who resides at …………………….

 

DIRECTIONS 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 ……………….. State sitting at ……………….

(Delete court which is not applicable).

JUDGE

For Service on

……………………………………

Defendant or Solicitor acting for him.

 

If counsel had carefully studied the Forms and relevant rules, it would have been self evident that the applicant did not at any time contravene the provisions of Order 2 r. 1(1) and Form No.2 of the Appendix prescribed for the enforcement of the Fundamental Rights sought to be enforced. The applicant or his counsel did not in fact sign the originating summons as is being alleged. Learned Senior Counsel to the respondents on his part had conceded that there was a defect in the originating summons which thereby constituted it an irregularity because the originating summons was not signed by a High Court Judge. As I have pointed out above, there is no defect in the originating summons as applied for by the applicant, having complied with Order 2 r.1(1). Applicant having fulfilled his part of the procedural requirement, it is clearly no concern of his that the court or Judge has failed to comply with the rules as prescribed.

 

Although I do not agree with learned counsel to the respondents in his submission that absence of the signature of a Judge in an originating summons is a mere technicality, I think it is correct to say that the defect did not render the originating summons a nullity. Where the non-compliance with the rules is on the part of the court, the defect is merely administrative and did not render the originating summons or proceedings consequent thereto a nullity.

 

In Alawode V. Semoh (1959) 4 F.S.C. 29, it was held that delay in the issue of a writ is an administrative matter which did not concern a plaintiff who has paid the necessary fees with his application and particulars of claim.

 

I am of opinion this reasoning applies to the failure by the Judge to sign an originating summons or a writ of summons. I have carefully perused the record before us and have been unable to find any direction for defendant to enter appearance as required under Form No.2 in the Appendix. Thus the only feature is that there was no process compelling defendant to enter appearance to the application. Appellant is not disputing that he entered appearance and accordingly submitted to the jurisdiction.

 

It seems to me that the failure of the Registry of the High Court to issue directions to the defendant to enter appearance, does not affect the competence of the High Court to hear and adjudicate on the matter since the appellant had entered appearance. The failure to sign the second part of the Form No.2 in the Appendix is therefore a mere irregularity.

 

It is well settled law that a breach of a rule of practice can only render a proceeding an irregularity and not a nullity. Such irregular proceeding can only be set aside if the party affected acted timeously and before taking a fresh step since discovering the irregularity - See Niger-Benue Transport Company Ltd. v. Narumal & Sons Ltd. (1986) 4 N.W.L.R. (Pt.33) 117. Hence, where an action has been commenced by a procedure which is irregular a defendant who took active part in the proceedings without complaining about the irregularity cannot be heard subsequently to seek to set aside the action on the grounds of the irregularity acquiesced - See Noibi V. Fikolati (1987)1 N.W.L.R. (Pt.52) 619.

 

In Sonuga & Ors. V. Anadein & Ors. (1967) N.M.L.R. 77, this court was confronted with a situation in which a party to an action had acquiesced in an irregularity in the endorsement of a writ of summons, and who after several adjournments of the case without objection to the endorsement finally successfully raised objection to the writ of summons on the grounds, earlier acquiesced in. On appeal against the judgment of the court setting aside the writ of summons, the Supreme Court said at p.79

 

In the appeal before us the question appears to be, is it right for the defendant to take advantage of an irregularity he had himself accepted or led the plaintiff to believe he had accepted and had acted on it, without any harm done to him? We think it is now too late for him to raise an objection. In the case of Dickson V. Law and Davidson where an amended writ served out of the jurisdiction did not bear the endorsement prescribed by an appendix to the Rules of court, for a writ to be served Out of jurisdiction, it was held that the defendant is not entitled to take advantage of an irregularity occasioned by a slip which has been made by the plaintiff and which has done no harm to the defendant.

 

The courts have consistently held in several decided cases that an objection to a procedural irregularity in an action, to be countenanced, must be taken at the commencement of the proceedings or at the time when the irregularity arises. After the party raising and relying on the irregularity to set aside the action had taken steps in the proceedings aware of the irregularity, it will be too late and against the interest of justice to raise and rely on the objection. The following are some of the decided cases on this proposition - C. F.A.O. v. The Onitsha Industries Ltd. 11 N.L.R. 102; Johnson V. Aderemi & Ors. 13 W.A.C.A. 297; Adebayo & Ors. v. Chief Shonoivo & Ors. (1969)1 All N.L.R. 176; Noibi v. Fikolati & Anor. (1987)1 N.W.L.R. (Pt.52) 619; Ezomo v. Oyakhire (1985)1 N.W.L.R. (Pt.2) 195.

 

However, where the person complaining of the irregularity is able to show that a miscarriage of justice had occurred by reason of the irregularity, he would be allowed to rely on the alleged irregularity to set aside the proceedings. This was the reasoning of Coker, J.S.C., in Adebayo & Ors. v. Chief Shonowo & Ors. (supra) at p.190 which I agree represents the correct position and is consonant with justice.

 

It is obvious from the foregoing that appellant has not brought his case within any of the consideration that will entitle him to set aside the proceedings on the alleged irregularity. Firstly, appellant did not complain about the A irregularity until after the trial and judgment in the High Court. The issue was raised first as a ground of appeal in the Court of Appeal.

 

Secondly, it is not the case of appellant that he had by the irregularity suffered a miscarriage of justice. Thirdly, the nature of the non-compliance which is by the court is not fundamental and therefore insufficient to vitiate the action; it is a mere irregularity which has been cured by the acquiescence of the appellant in the proceedings. Appellant can therefore not be allowed to rely on the fact that the originating summons was not signed by a High Court Judge to set aside the proceedings.

 

With the above reasons and the much fuller reasons given in the judgment of my learned brother, Uwais, J.S.C., I hereby dismiss the appeal of the appellant and award costs assessed at N500 to the respondent.

 

 

Judgement delivered by

Oputa. J.S.C.

 

I have had the privilege of a preview in draft of the lead judgment just delivered by my noble and learned brother, Uwais, J.S.C. I am in complete agreement with his reasoning and conclusions.

 

I think on the facts and in view of the concession made by learned counsel for the 1st and 2nd defendants (who did not appeal), the 3rd defendant was ill-advised to pursue this matter beyond the High Court. His only trump card would seem to be that the originating summons was void ab initio and could not therefore vivify the resulting proceedings and subsequent judgments. I shall consider, in some detail, this aspect of the appeal later on, as it is here that I intend to make some contributions.

 

The Introduction and Statement of Facts in the Brief of the appellant did not mirror nor did it reflect the facts which sparked off this case. It was therefore wrong of the respondent in his own brief to "adopt the Introduction and Statement of Facts in the appellant's brief." These facts are important as it is they that are going to frame the issues that will arise for determination and decision in this case. Fortunately the facts were beautifully summarised in the judgment of the learned trial Chief Judge of Kaduna State, Mohammed, C. J. They are as follows:-

 

1.     The plaintiff and respondent, in this court, applied for 2 plots -K.29 and K.30 - in the industrial area of Kastina town. He paid the necessary fees - N150 for each application and was issued Receipt No. 430607 of 18th August, 1978 for a total sum of N300.00.

 

2.     Later on the numbers of the plots the plaintiff applied for were changed - plot K.29 was renumbered plot No.8 while plot K.30 was renumbered plot No.9.

 

3.      In March, 1979, the plaintiff was issued with a Certificate of Occupancy No. NC.5200 in respect of plot No.9 and in July of the same year 1979, the plaintiff was again issued with another Certificate of occupancy No. NC.4294 in respect of plot No.8 The plaintiff paid the necessary ground rent and other charges in respect of these two plots as follows:-

 

N365.34 in respect of Certificate of Occupancy No. NC.5200, and N545.03 in respect of Certificate of Occupancy No. NC.4294

 

4.     On 22(12180, for no apparent reason, the Certificate of Occupancy No. NC.5200 issued to the plaintiff in respect of plot No.9 was revoked.

 

5.    The plaintiff in his affidavit swore that this revocation was motivated by malice and calculated to victimise him because of political differences between him and the 1st defendant, the Governor of the State.

 

6.    There was no denial of this rather serious allegation by the 1st defendant.

 

7.     Before the said revocation order, the plaintiff had expended about N45,000.00 on the said plot No.9.

 

8.     No compensation was offered to the plaintiff by the 1st defendant, at least, to offset his expenditure on the said plot No.9 whose Certificate of Occupancy was thus revoked.

 

9.      Having revoked the plaintiff's Certificate of Occupancy with regard to plot No.9, the self same plot was given to the 3rd defendant, the appellant in this court, and a new Certificate of Occupancy No. NC.3459, signed the very day (28th November, 1986) plaintiff's Certificate of Occupancy was revoked, was issued to the 3rd defendant.

 

These were the bare and naked facts of this case.

 

On the above facts, the plaintiff took out an originating summons claimings

 

1.     A declaration that the purported revocation by the 1st 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) 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 1st defendant revoked the plaintiff's said Certificate of Occupancy does not confer on the defendants more particularly the 1st defendant the power to effect such a revocation because the facts and the reasons upon which the 1st 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 plaintiffs 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 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 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)(b); and Section 50(1) of the Land Use Act 1978 and/or Sections 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 10(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 thc plaintiff  over the Land subject of the aforementioned Certificate ofOccupancy. 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 D plaintiff's landed property covered by and subject of Certificate of Occupancy No. NC.5200 dated, 26th March, 1979.

 

The plaintiff's claims came before Aroyewun, J., of the Kaduna State High Court. On 2/12/81 at p.44 of the record, the learned trial Judge made the following notes:-

 

Court:   It is very pleasant to hear of possible settlement out of court and I honestly implore all counsel representing different parties and interests to ensure that the matter is settled out of court.

 

The above supplication did not seem to have been heeded. Rather than settle, there followed a spate of applications, objections and Rulings until on 14/3/85 when Aroyewun, J., struck out the suit following the unexplained F absence of the parties and their counsel. This is stage 1.

 

Stage 2 opened with an application to relist, brought before Mohammed, C.J., on 18/3/85. The application was granted, the case relisted and adjourned to 14th and 15th October 1985 for hearing. Hearing started on 14/10/85 when Abdullahi Ibrahim, S.A.N., for the plaintiff addressed the court. On the 15/10/85, Mrs. Ugbor for 1st and 2nd defendants, made the following concessions:-

 

1.    I concede that the revocation was wrong. I also say that applicants did not come with clean hands.

 

2.    I also concede the revocation was not in accordance with S.34(2)(c) Land Tenure Law.

 

3.    I also concede that the reasons given for the revocation are not valid, revocation was therefore null and void.

 

I should have thought that the concessions made by learned State Counsel for the 1st and 2nd defendants - (the Governor of Kaduna State and the Attorney-General of Kaduna State respectively who were in fact the principal parties to this action) should have been the end of the matter as they amount to a total and unqualified admission of the plaintiffs claims. But no, the 3rd defendant (who was obviously joined in order that he may be bound by the results) had no intention of throwing in the towel. He addressed the court copiously and at the end of the day the learned trial Chief Judge reserved judgment which he delivered on 29/11/85. That judgment ended on this note:-

 

I accordingly make all the declarations sought by the applicant, I set aside the revocation and hereby issue Order restraining all the respondents, 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.

 

The above judgment seems to be in accord with the concessions made by learned State Counsel for 1st and 2nd defendants/respondents.

 

The 3rd defendant dissatisfied and aggrieved then appealed to the Court of Appeal, Kaduna Division. The 1st and 2nd defendants, as would be expected, did not appeal. Five original grounds of appeal dated 18/12/85 were filed. These grounds without their particulars were –

 

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

 

2.     That 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 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 reasons stated in the revocation Order by which the plaintiffs 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 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.

 

It is to he noted that all the five grounds listed above severally represent the appellant's complaint against one or other of the points or submissions he made in the trial court and was over-ruled. In other words, each ground rep-resents his complaint against a decision taken against him in the trial court which he now thinks was wrongly taken. And that is really what any ground of appeal should represent.

 

Now, while the appeal was pending in the Court of Appeal, the appellant, by Motion on Notice dated 24th day of March 1986, applied inter alia

 

(a)    …..

 

(b)    an order allowing the appellant to file and argue additional A grounds of appeal.

 

(c)    an order allowing the appellant to raise in this court the issue of competence and jurisdiction of the trial court which WM not taken in the court below.

 

The proposed additional ground of appeal was annexed to the Motion. It is as follows:-

 

Additional Ground of Appeal

 

1.     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.

 

Particulars

 

(a)    The originating summons taken out by the respondent was not signed by any Judge of the High Court as prescribed by Order 2 Rule 1(1) Form No.2 of Fundamental Rights (Enforcement Procedure) Rules 1979 and by Order 2 Rule 3 of the High Court (Civil Procedure) Rules 1977 but was signed by respondent's counsel who has no authority to sign the said summons.

 

(b)    Since the suit was incompetent and not properly before the High D Court, the court had no jurisdiction to entertain it.

 

The Court of Appeal (coram Maidama, Akpata and Ogundere, JJ.C.A.) heard the motion on the 14th April, 1986. Yunus Usman who appeared for the plaintiff/respondent had no objection and the court granted the application

 

to file and argue additional grounds and also to raise the issue of the trial court's jurisdiction.

 

The Court of Appeal, in a reserved judgment, then considered all the grounds filed, one by one, and found against the appellant on each ground. The court below per Akpata, J.C.A., then made the following pertinent remark at p.165 of the record of proceedings.

 

The simple issue in the appeal, stripped of the legal niceties and technicalities, which do not rightly attach to it, is whether the respondent's Certificate of Occupancy was validly or lawfully revoked to have warranted a Certificate of Occupancy being issued in favour of the appellant over the same parcel of land.

 

Akpata, J.C.A., then resolved the 'simple issue' as follows:-

 

…..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.

 

I therefore dismiss the appeal …….

 

The above is the real reason behind the judgment of the Court of Appeal - its ratio decidendi.

 

And it is against the above judgment "stripped of the legal niceties and technicalities which do not rightly attach to it" that any appellant ought to complain about and appeal against. It will be a useless luxury to complain about what the court below, per Akpata, J .C.A., observed were "legal niceties and technicalities which do not rightly attach" to the case on appeal. This shows the importance of our courts first and foremost settling what and what constitute the issues - the real issues - in the case or appeal; then having identified such issues, going straight on to their resolution. This approach will easily enable anyone to identify which portion of the judgment is obiter and what pronouncement constitutes a ratio decidendi in the case or appeal. It also has to be observed that an appeal is usually against a ratio not normally against an obiter except in cases where the obiter is so closely linked with the ratio as to be deemed to have radically influenced the latter. But even there, the appeal is still against the ratio.

 

The 3rd defendant having thus lost in the two courts below, has now appealed to this court. The 1st Ground of Appeal complained that:-

 

1.     The learned Justices of the Court of Appeal erred in law in holding that the signing of the Originating Summons by the respondent's counsel was a mere procedural error which could be waived by the appellant.

 

Particulars

 

(a)    ………

 

(b)    As the said originating summons was not signed by a Judge of the High Court, the suit did not come before the trial court initiated by due process of law and on the principle enunciated by the Supreme Court in Madukolu & Ors. v. Nkemdilim (1962)1 Ml NLR 587, this defect is fatal to the competence of the trial court to entertain the suit.

 

This ground is obviously an attack on the competence of the trial court to entertain, and adjudicate over, this case. "Competent" means duly qualified, answering all requirements, having sufficient ability or authority. The expression "competent" (used in relation to courts of law) has been given judicial definition and elaboration by this court in Madukolu v. Nkemdilim (supra) at p.595 thus:-

 

Put briefly, a court is competent when –

 

(1)    it is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another; and

 

(2)    the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

 

(3)    the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.

 

Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication. If the court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial …… It may turnout that the party complaining was to blame, or had acquiesced in the irregularity …… A defect in procedure is not always fatal.

 

In the above case, this court drew the necessary distinction between a defect in competence in the sense of lack of jurisdiction which is fatal and a defect in procedure which is not at all fatal.

 

The first question that Ground 1 poses is - Is signing an Originating Summons an issue of jurisdiction or a matter of procedure? Particular (a) of Ground 1 reads:-

 

(a)    By Order 2 Rule 1(1) Form No.2 of Fundamental Rights (Enforcement Procedure Rights 1979 and Order 2 Rule 3 of the High Court (Civil Procedure) Rule, 1977, the Originating Summons must be signed by a Judge of the High Court of Kaduna State" (the italics is mine to highlight the distinction between jurisdiction stricto sensu and procedure).

 

The above particular (a) relegates any error in signing an Originating Summons into the arena of an error in obeying the Rules of Procedure – here either Enforcement Procedure Rules or Civil Procedure Rules or both. Such an error must necessarily partake of the genesis or source of the error - here procedure. It is therefore my view that in signing the originating summons himself, the learned Senior Advocate for the plaintiff or appellant offended the procedural rules relating to the signing of such summonses.

 

Now being an error in, and of, procedure, one result of such an error, will be to make the summons defective. A further question will then arise -What happens when a defendant to a civil Writ of Summons or a respondent to an originating summons is served with a defective summons? This question has been answered by this court in the recent case of Adegoke Motors Ltd. v. Adesanya & Anor. (1989) 5 S.C.N.J. 80 at p.89; (1989) 3 N.W.L.R. (Pt. 109) 250. But common-sense and the very meaning of the expression "Summons" (which is a call of authority, an admonition to appear in court) both dictate that if a person is irregularly summoned, he may refuse to answer the summons. Also since a Summons is a call of authority, as if, in the instant case, there was no authority backing up the originating summons, the 3rd defendant was not obliged to answer it. But to be on the safe side, the law F allows a defendant, irregularly or wrongfully summoned either:-

 

(a)    to enter an appearance on protest or,

 

(b)    to enter a conditional appearance, and

 

(c)    then file a motion in the court, the trial court seized of the matter to set aside the Writ or Originating Summons on the ground complained of.

 

This is the correct procedure which was successfully utilised in Skenconsult (Nig.) Ltd. & Anor. v. Ukey (1981)1 S.C. 6 and in Ben Obi Nwabueze & Anor. v. Justice Obi Okoye (1988) 4 N.W.L.R. (Pt.91) 664; (1988)10/11 S.C.60 and which was not utilised unfortunately and to the detriment of the complaining defendant in Ezomo v. Oyakhire (1985)1 N.W.L.R. (Pt.2) 195 at pp.202/203, (1985)2 S.C. 260.

 

When the appellant applied to the Court of Appeal for leave "to file and argue additional grounds of appeal", there was a second prayer for "an order allowing the appellant to raise, in this court, the issue of competence and jurisdiction of the trial court, which was not taken in the court below." Jurisdiction - its presence or absence - is a very radical and crucial issue. That being so, a proper issue of jurisdiction can be raised any time and at any stage of the proceedings either at first instance or on appeal. But as this court in Madukolu's case supra drew a distinction between a defect in competence (which will spell absence of jurisdiction) and a defect in competence (which might merely show and reveal an irregularity in the process of adjudication) so it is essential, in any given case, to find out whether what an appellant is attacking is a defect in competence or a defect in procedure. In the case now on appeal, it is my view that who signs an originating summons is an issue of procedure and not a question touching the court's competence. This now raises a major issue of jurisdiction, now the jurisdiction of the Court of Appeal to even entertain the additional ground of appeal filed with leave of that court.

 

The jurisdiction conferred on the Court of Appeal by Sections 22() and 221 of the 1979 Constitution is to hear appeals "from decisions of a High Court." By Section 277(1) "decision" means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation. The question now is - Was the issue whether an Originating Summons may validly be signed by learned counsel for the applicant or must it solely be signed by a Judge of the High Court determined by the Kaduna State High Court; so that its determination of that issue against the 3rd defendant/appellant can now form the basis for a valid appeal? The answer is that no such issue ever came before the trial Chief Judge and therefore there was no decision on or of that issue which can now be appealed against. I will here repeat what I said on this same point in Adegoke Motors v. Adesanya supra at p.84:-

 

The appellants came to this court on appeal. Generally an appeal is regarded as a continuation of the original suit rather than an inception of a new action. Because of this, in an appeal, parties are normally confined to their case as pleaded in the court of first instance. They are not allowed to make a new and different case on appeal ……. An appeal being a judicial examination by a higher court of the decision of an inferior court. it follows that such examination should normally and more appropriately be confined to the facts and issues that came before the inferior court for decision.

 

Relying on the principle of this court's decision in Adegoke Motors supra, the Court of Appeal would have stopped any submission on the additional ground.

 

It can then be argued that court itself gave the appellant leave to file and argue the additional ground. This aspect of the issues was considered recently by this court in Lawrence Adebola Oredayin & Ors. v. Chief Akala Arowolo (1989)4 N.W.L.R. (Pt.114) 172. If I may, I will again here refer to what I said in that case:-

 

There is the point made in the plaintiff/respondent's brief that the defendant/appellants in this court and respondents in the Court of Appeal never objected to the motion .... to argue the additional ground …. The 1st defendant was in error not to have opposed that motion. That error by itself alone did not relieve the Court of Appeal of the obligation on its own part to refuse to entertain a ground which was a complete round about turn ….. of the plaintiff's case as pleaded and as decided. A valid ground of appeal should be one complaining of some error in the resolution of a party's case as pleaded, as presented and as decided by the trial court …. A point not taken at the trial court but presented for the first time in the Court of Appeal ought to be very jealously scrutinised....

 

It is thus my humble view that, being a question of jurisdiction, when a new point or issue is to be urged in an additional ground, the Court of Appeal ought to satisfy itself that there was a decision one way or the other on that point or issue in the trial court against which the additional ground is now complaining.

 

On Issue No.2 - Whether the court below raised certain issues suo motu and whether those issues affected its decision -the concurring judgment of Akpata, J.C.A., at p.165 of the report, which I quoted earlier on in this judgment, is a complete answer. "The simple issue in this appeal, stripped of the legal niceties and technicalities, which do not rightly attach to it, is whether the respondent's Certificate of Occupancy was validly and lawfully revoked to have warranted a Certificate of Occupancy being issued in favour of the appellant over the same land." That was the simple issue in this case. It was not necessary to encumber and even becloud this simple issue with "privity of contract" and "spes successionis." But be that as it may, the lead judgment rightly resolved the crucial issue by holding that "the revocation Order under Section 34(2)(c) of the Land Tenure Law was void".

 

In his respondent's brief, learned Senior Advocate of Nigeria at p.8 para. 3.2.3. submitted that "the part of the lead judgment dealing with privity of contract and "spes successionis" should be regarded as obiter. I agree, but with this warning - Our courts should cautiously abstain from deciding more than what the immediate point or points argued and submitted to their consideration require. Obiter dicta like the proverbial chickens of destiny Ic come home to roost, sooner or later, in a very uncomfortable way and are

often a source of grave embarrassment in future cases; see Cooke v. New River Company (1888) L.R. 38 C.D. 70 per Bowen, L.J.

 

For all the reasons given above and for the fuller reasons in the lead judgment of my noble and learned brother, Uwais, J.S.C., which reasons I now adopt as mine, I, too, will dismiss this appeal. I will abide by all the con-sequential Orders in the lead judgment.

 

Judgement delivered by

Agbaje. J.S.C.

 

I have had the opportunity of reading in draft the lead judgment of my learned brother, Uwais, J.S.C.

 

I agree entirely with his reasoning and conclusions. It is only to emphasise the correctness of his decision that I make the following contributions to it.

 

The issues for determination in this appeal, as agreed upon by both sides, are 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 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 Law but under the Land Use Act, 1978.

 

The facts giving rise to these issues have been clearly stated in the lead judgment. So, I need not repeat them here. In fact there is no dispute about the facts relevant to the issues submitted for determination in this appeal.

 

The originating summons in the case in hand was not signed by a Judge. Nor was it sealed. It is the submission on behalf of the appellant by his counsel that such defects are fatal to the commencement of the proceedings in this case and, consequently, any proceedings founded on that fundamentally defective foundation are incurably bad, null and void and of no effect. For this submission much reliance was placed on the following passage from the judgment of Lord Denning in Macfoy v. United Africa Co. Limited (1961) 3 All E.R. 1169 at 1172-3:-

 

The defendant here sought to say therefore that the delivery of the statement of claim in the long vacation was a nullity and not a mere irregularity. This is the same as saying that it was void and not merely voidable. The distinction between the two has been repeatedly drawn. If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity. But if an act is only voidable, then it is not automatically void. It is only an Irregularity which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order of the court setting it aside; and the court has a discretion whether to set it aside or not. It will do so if justice demands it but not otherwise. Meanwhile it remains good and a support for all that has been done under it. So will this statement of claim be a support for the judgment, if it was only voidable and not void.

 

Order 2 rule 1(1) of the Fundamental Rights (Enforcement Procedure) Rules 1979 provides as follows:

 

1(1) When leave has been granted to apply for the order being asked for, the application for such order must be made by A 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 my view when leave has been granted to apply for the order being asked for, and an application for such order by originating summons has been made to the appropriate court, the proceeding for such order is commenced by the application for the summons to the Registrar of the appropriate court and the payment of the prescribed fees. I am firmly of this view because of the decision of this court in Alawode & Ors. v. Semoh (1959) 4 F.S.C. 27 at 29-30 where Ademola F.C.J., delivering the judgment of the court in the case said inter alia:-

 

It is to be observed that in England once a plaintiff buys his writ the action commences. In the Lagos High Court, as in this case, the provisions of Order 2 rule 1, require that an application for a writ be made by the plaintiff to the Registrar of the court who, after issuing the summons will place it before a Judge, or other officer empowered to sign it.

 

The test for the commencement of an action both according to the English rules and the local Rules of Court appears to me to be this: has the plaintiff done all that is required of him by law to commence his action'? In England, all he has to do is to buy the writ and endorse it. In Nigeria he has to make an application to the Registrar and pay the necessary fees. From then on, his responsibility ceases and what is left to be done is a domestic affair of the court and its staff. From the time the plaintiff in Nigeria, delivers his application to the Registrar (provided it is not an action in which the consent of the court is necessary' before the writ is issued), and he pays the necessary fees, it will, in my view, be correct to say that an action or a suit has been "commenced."

 

Whatever delay is occasioned before the issue of the writ is a matter not within the power of the plaintiff to control but merely a domestic affair of the court for which the plaintiff cannot be penalised. It certainly would be a matter of grave injustice to a plaintiff who delivers his application for a writ and pays the necessary fees if he is deemed not to have commenced an action merely because, for some reason, it was not possible for the court or the Judge go sign the writ for a fortnight or so after the application. (Italics mine)

 

This case in my view is authority for the proposition too that any delay or, for that matter, failure on the part of a Judge in signing a summons will not be fatal to any proceeding once commenced by a plaintiff in the manner I have just stated.

 

The arguments for the appellant in this appeal are to the effect that the whole of the proceedings in the case in hand are null and void because the originating summons by which the respondent applied for the order sought for was not signed by a Judge, proceeded on the premise that the proceedings in question were not commenced until the originating summons was signed by a Judge and sealed. I have shown that having regard to our law counsel for the appellant has proceeded on a false premise, and that in fact from the time a plaintiff in Nigeria delivers his application to the Registrar (provided it is not an action in which the consent of the court is necessary before the writ is issued) and he pays the necessary fees it will be correct to say that an action or suit has been commenced.

 

In the case in hand, leave of the court to apply for the order sought by originating summons is necessary before it is issued. But the leave has been sought and obtained. The prescribed fees have been paid by the respondent on his application for the summons. In the circumstances, the proceedings in this case have in my view been properly commenced. This in my view is not a case where something was put on nothing. All the proceedings subsequent to the commencement of this suit were in my judgment founded on a good foundation. So, in my judgment the case of Macfoy v. U.A.C. (supra) does not apply here.

 

Both sides are agreed that when Ogundere, J.C.A., in his lead judgment said 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 recision 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 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.

 

he was dealing with matters which did not arise from the issues submitted by the parties for determination in the appeal before him. He was no doubt wrong in going into the above issues. See for instances Overseas Construclion Ltd. v. Creek Enterprises Ltd. (1985) 3 N.W.L.R. (Pt.13) 407 at 408; Chief Ebba v. Ogodo & Ors. (1984) 4 S.C. 84.

 

The learned Justice of Appeal however did not end his judgment with the consideration of the issues he took suo motu. In his judgment he also alluded to the following point namely:-

 

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.

 

And, having given his reasons, he held as follows in this regard:-

 

The irregularities in the signature on the originating summons being a mere technical error, does not vitiate the proceedings.

 

For the reasons I have given earlier on in this judgment I agree with him that the failure of the Judge to sign the Originating Summons will not vitiate the proceedings in this case.

 

In his judgment the learned Justice of Appeal referred too to section 28 of the Land Use Act and section 34 of the Land Tenure Law of Northern Nigeria and held in resolution of the arguments touching these provisions:-

 

The learned S.A.N., then submitted that the Supreme Court judgment in the case of The Governor of Kaduna State v. Dada (1986) 4 N.W.L.R. (Pt.38) p.687 had decided the issue on appeal definitively. In it, the Sunreme Court upheld the decision of the Court of Appeal, this Division, in particular to the effect, inter alia, for revocation of a right of occupancy and the provisions of the Act prevail over the provisions of Section 34 of the Land Tenure Law which also made provisions for revocation order under Section 34 of the Land Tenure Law, as in this case, is void.

 

For the reasons given in the lead judgment in this appeal to which I agree one cannot say that the learned Justice of Appeal was wrong in saying that as at now for revocation of a right of occupancy to be valid it must be by virtue of Section 28 of the Land Use Act and not under Section 34 of the Land Tenure Law of Northern Nigeria.

 

The two points about which I have just spoken eminently arose from the issues submitted for determination in the lower court. And besides the issues taken suo motu by the learned Justice of Appeal, the appeal of the appellant in that court was also decided on these two points. I have endorsed the conclusions of the learned Justice of Appeal on them. And they are enough to dispose of the appeal against the appellant in that court without recourse to the points taken suo motu in the lead judgment. In the circumstances I am satisfied that no miscarriage of justice has been occasioned by the error of the learned Justice of Appeal in taking suo motu issues not raised in the appeal in the lower court.

 

For the above reasons and the fuller reasons given in the lead judgment I too dismiss the appeal with costs as assessed in the lead judgment.

 

 

Judgement delivered by

Craig. J.S.C.

 

 I have had the pleasure of reading in draft the judgment of my learned brother, Uwais, J.S.C., and I agree entirely with the views expressed therein and the conclusions reached.

For the comprehensive reasons given in the lead judgment, I too would dismiss this appeal and make the same consequential orders as to costs.

 

 

 

Counsel

 

P. O. Akunyili

With him, C. A. Ekhasemomhe

........

For the Appellant

Abdullahi A. Ibrahim, S.A.N.

With  J.A.T. Ajala

........

For the Respondent