➥ CASE SUMMARY OF:
Alhaji Dahiru Saude V. Alhaji Halliru Abdullahi (1989) – SC
by “PipAr” Branham-Paul C. Chima.
Supreme Court – SC.197/1987
➥ JUDGEMENT DELIVERED ON:
Friday, the 21st day of July, 1989
➥ AREA(S) OF LAW
Judge’s signature on summons.
➥ PRINCIPLES OF LAW
⦿ SIGNING OF ORIGINATING SUMMONS BY A JUDGE – FORM 2
It is clear from the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 1979 that nowhere in the body of the Rules is it provided that whenever an originating summons is being taken out it must be signed by a Judge of the High Court to which the originating summons relates. The Rules are silent on such a provision. However, the form of the originating summons which is prescribed in the Appendix to the Rules as Form 2 implies that the originating summons would be signed by a Judge. But nowhere is it provided that it is mandatory for a Judge to sign the originating summons. That notwithstanding, a close examination of Form 2 will reveal that directives are being given to a prospective defendant in an action to do certain things. Some of the directions read as follows – “Let the defendant, within 14 days (or if the summons is to be served out of the jurisdiction, insert here the time for appearance fixed by the order giving leave to issue the summons and serve it out of the jurisdiction) after service of this summons on him, inclusive of the day of service, cause an appearance to be entered to this summons, which is issued on the application of the plaintiff…” “If the defendant does not enter an appearance, such judgment may be given or order made or in relation to him as the court may think just and expedient. The defendant may enter an appearance in person or by a solicitor by handing in the appropriate forms, duly completed, at the Federal High Court at or in the High Court of……..State sitting.” Surely, neither the plaintiff nor his counsel would be expected to issue these directives to the defendant, for the defendant who is at loggerheads with the plaintiff could ignore such directives and to no consequence, since neither the plaintiff nor his counsel could have any power to carryout or enforce the sanctions contained in the directions. It is only a Judge that is conferred with such coercive powers. It, therefore, follows that the Fundamental Rights (Enforcement Procedure) Rules, contemplate that an originating summons issued in the form of Form 2 thereof would be signed by a Judge. What would be the effect if any person other than a Judge signs the originating summons need not bother us here in view of what I intend to state anon. — Uwais, JSC.
⦿ APPROPRIATE TIME TO RAISE AN OBJECTION AS TO PROCEDURAL IRREGULARITY
It has since been established by a plethora of authorities that the appropriate time at which a party to proceedings should raise an objection based on procedural irregularity is at the commencement of the proceedings or at the time when the irregularity arises. If the party sleeps on that right and allows the proceedings to continue on the irregularity to finality, then the party cannot be heard to complain, at the concluding stage of the proceedings or on appeal thereafter that there was a procedural irregularity which vitiated the proceedings- See C.F.A.O. v. The Onitsha Industries Ltd. 11 N.L.R. 102 at p.103; Johnson v. Aderemi & Ors. 13 W.A.C.A. 297; Adebayo & Ors. v. Chief Shonowo & Ors. (1969) 1 All N.L.R. 176 at p.190; Ashiru Noibi v. Fikolati & Anor. (1987) 1 N.W.L.R. (Part 52) 619 at p. 632 and Ezomo v. Oyakhire (1985) 1 N.W.L.R. (Part 2) 195 at pp.202-203. The only exception to this general rule is that the party would be allowed to complain on appeal if it can show that it had suffered a miscarriage of justice by reason of the procedural irregularity. — Uwais, JSC.
⦿ IT MUST BE SHOWN THAT SUO MOTO ISSUES RAISED AFFECTED THE RIGHT OF THE PARTY COMPLAINING
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. — Obaseki, JSC.
⦿ POWER TO REVOKE BY GOVERNOR IS DERIVED FROM THE LAND USE ACT, AND NOT THE LAND TENURE LAW
In other words, the provisions of Land Tenure Law is to be followed in the administration of land under the control and management of the Military Governor under the Land Use Act. Further, the provisions of the Land Tenure Law applicable for the purpose are to be modified so as to bring the law into conformity with the Act or its general intendment. It is not the Land Tenure Law that is in operation but the Land Use Act. The provisions of the Land Tenure Law has therefore been incorporated into the Decree for the purpose of administering the lands under the control and management of the Military Governor. Since the Land Use Act came into force in March, 1978, the power a Governor/Military Governor has to grant a statutory right of occupancy and to revoke the statutory right of occupancy is derived from the Land Use Act and NOT the Land Tenure Law or State Land Law. It is a gross misconception of the true state of the law to think or hold the view that because the Land Use Act orders the administration of lands under the control of the Military Governor to be in accordance with the provisions of the Land Tenure Law in the Northern States that the powers exercised are powers under the Land Tenure Law. Both the plaintiff and the 3rd defendant/applicant could only have obtained their grant of statutory right of occupancy under the Land Use Act. The revocation of the right of occupancy could equally only have been exercised under the Land Use Act although in compliance with the procedure prescribed by the Land Tenure Law. The reference to the Land Tenure Law in the Deed of Revocation was a mistake occasioned by a misreading of section 4(a) of the Land Use Act. — Obaseki, JSC.
⦿ COURT SHOULD NOT RAISE AND DECIDE ISSUES SUO MOTO
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. — Eso, JSC.
⦿ CIRCUMSTANCES WHERE PROCEEDINGS WILL BE REGARDED AS AN IRREGULARITY
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. — Karibe-Whyte, JSC.
⦿ ABSENCE OF SIGNATURE OF THE JUDGE ON THE ORIGINATING SUMMONS – NON-COMPLIANCE
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 noncompliance with its provisions. — Karibe-Whyte, JSC.
⦿ ABSENCE OF SIGNATURE OF A JUDGE IN AN ORIGINATING SUMMONS
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. — Karibe-Whyte, JSC.
⦿ SITUATIONS WHERE IRREGULARITY WILL BE WAIVED
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 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. — Karibe-Whyte, JSC.
⦿ AN APPEAL IS AGAINST A RATIO, NOT OBITER
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. — Oputa, JSC.
⦿ WHAT DEFENDANT CAN DO IF WRONGFULLY SUMMONED
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 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.202l203, (1985) 2 S.C. 260. — Oputa, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
Mr. P.O. Akunyili.
⦿ FOR THE RESPONDENT
Abdullahi Ibrahim, S.A.N.
➥ CASE FACT/HISTORY
This case was commenced on the 18th day of February , 1981 in the High Court of Kaduna State by the respondent, as plaintiff, applying exparte under Order 1 rule 2(3) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, S.1 (1) of 1979, for an order to enforce his fundamental right under the Constitution of the Federal Republic of Nigeria, 1979. The application was granted by the High Court. Thereafter the plaintiff took out an originating summons under Order 2 rule 1(1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979.
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.
The facts as deposed in the affidavit and counter-affidavits and which were not generally in dispute are as follows –
The plaintiff, on the 5th day of August, 1976 applied on two separate application forms to the Ministry of Lands and Surveys of former Kaduna State for the grant of statutory right of occupancy in respect of 2 plots of land situate at Katsina town. The plots were numbered as plots K.29 and K.30. In the application forms, the plaintiff indicated that plot No.K.29 was required for the purpose of setting up a garage and a metal structure while plot No.K.30 was to be used in establishing a factory for the manufacture of floor tiles. The applications were accompanied with the necessary fees, for which a single Revenue Collector’s Receipt No. 430607 of 18th August, 1976 was issued to the plaintiff. Two years later the plaintiff received a letter dated the 6th September, 1978 stating that his application in respect of plot No. K.29 had been approved for the grant of a Certificate of Occupancy bearing No. NC.4294. Another letter dated the 19th October, 1978 conveying the grant of right of occupancy to the plaintiff on plot No. K.30 was received by the plaintiff. The grant was in terms of Certificate of Occupancy No. NC.5200. Both grants of right of occupancy were accepted by the plaintiff in his two letters to the Permanent Secretary, Ministry of Lands and Surveys, Kaduna State, which were dated the 15th September, 1978 and 27th October, 1978. Whilst the plaintiff’s applications were being processed by the Ministry, the numbers of the plots were changed. Plot No. K.29 became plot No. 8 and plot No. K.30 became plot No.9. Certificate of Occupancy No. NC.5200 in respect of plot No.9 was issued to the plaintiff in March, 1979 and Certificate of Occupancy No. NC.4294 was issued in July, 1979. Building plans for the development of the plots were submitted by the plaintiff to Town Planning Authority which approved them. Consequently. the plaintiff commenced development on plot No.9. He expended the sum of about N45,000.00 by the and day of December, 1980.
On his part, the 3rd defendant applied to the Ministry of Lands and Surveys, Kaduna State, on the 13th day of February, 1976 for a right of occupancy over a piece of land in Katsina town, known as plot No. K.32 which was situated at Katsina Industrial Layout. He indicated in the application that he needed the plot for the purpose of setting up a soap manufacturing factory. He paid the appropriate fees for the application and a Revenue Collector’s Receipt No. NC.201795 dated 13th February. 1976 was issued to him. The grant of the right of occupancy over the piece of land was conveyed to the 3rd defendant by a letter from the Ministry, which was dated the 20th August, 1979. The right of occupancy so granted was covered by Certificate of Occupancy No. NC.3459. However, it was remarkable that the right of occupancy was stated by the letter to be in respect of plot No.9 already granted to the plaintiff in 1978 and not plot No. K.32 in respect of which the 3rd defendant applied for right of occupancy. The 3rd defendant paid the necessary fees in respect of the allocation of the plot and he was issued the Certificate of Occupancy No. NC.3459 on the 28th day of November, 1980. The building plans of the 3rd defendant were approved by the Town Planning Authority. It was at this stage that the 3rd defendant discovered that the plaintiff had been in possession of plot No.9 and had since commenced development on it. The confusion in the allocation of Plot No.9 to both the plaintiff and the 3rd defendant was also discovered by the Ministry of Lands and Surveys. A letter the 31st October, 1980 was sent by the Permanent Secretary of the Ministry to the plaintiff asking him to stop the development on the land in dispute. This was followed on the 22nd of December, 1980 by a letter in which it was indicated by the Permanent Secretary that the plaintiff’s right of occupancy over plot No.9 was revoked by the Governor of Kaduna State. A Deed of Revocation signed by the Governor, was enclosed in the letter. The letter made no reference to payment of compensation to the plaintiff.
At the hearing of the case before Mohammed. C.J.. counsel for the 1st and 2nd defendants, namely the Governor and Attorney-General of Kaduna State respectively, conceded that the revocation of the plaintiff’s right of occupancy was illegal, null and void since the revocation was not in accordance with the provisions of Section 34 Subsection (2)(c) of the Land Tenure Law. Learned Chief Judge, therefore, entered judgment for the plaintiff in the following terms. “I accordingly, make all the declarations sought by the applicant (sic plaintiff). I set aside the revocation and hereby issue the order restraining all the respondents, (sic defendants) their agents, servants, privies or anyone acting by their authority, express or implied from taking possession of or doing any act inconsistent with or contesting the rights and interests of the applicant over the land subject of Certificate of Occupancy No.NC.5200.”
The 3rd defendant appealed to the Court of Appeal against the decision; 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.
➥ ISSUE(S) & RESOLUTION(S)
I. 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?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT NO MISCARRIAGE OF JUSTICE HAS BEEN SUFFERED BY THE SAID IRREGULARITY
“In the present case no allegation whatsoever of miscarriage of justice has been made by the appellant. It is not, in fact, his case that he suffered a miscarriage of justice by reason of the irregularity. It follows that the complaint of the appellant that the originating summons was not signed by a Judge being a procedural irregularity is no more than a storm in a tea cup. It is an exercise in futility which does not enhance his appeal any further.”
II. 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?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE ERROR OF THE JUDGE IN RAISING ISSUES SUO MOTO, THOUGH WRONG, HAS NOT OCCASIONED A MISCARRIAGE OF JUSTICE
“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.”
“There is no doubt that the Court of Appeal committed a serious misdirection in its lead judgment (per Ogundere, J.C.A.) when it inappropriately raised and considered new issues in the appeal before it. The question is: what is the effect of the misdirection Unless the misdirection is so grave as to have occasioned substantial miscarriage of justice, an appeal court will not ordinarily interfere with the decision of the lower court.”
“I am of the opinion that the misdirection involved in this case has not been shown to have given rise to any miscarriage of justice, as was the case in Kurt’s case (supra) and Olusanya’s case (supra), so as to call for the ordering of a new hearing in the Court of Appeal or the allowing of the appeal and setting aside the decision of the Court of Appeal. I entirely agree with Akpata, J.C.A., when he held in his judgment (quoted above), that shorn of the misdirection in the lead judgment of Ogundere, J.C.A., the appeal before that court was bound to fail.”
III. 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?
“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.”
“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.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ ADOPTION OF A WRONG PROCEDURE WAIVED WILL BECOME AN 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.”
⦿ DISTINCTION BETWEEN VOID & VOIDABLE
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.”
➥ REFERENCED (OTHERS)