DIN V. ATTORNEY-GENERAL OF FEDERATION
| Pages | 449-480 |
DIN V. ATTORNEY-GENERAL
OF FEDERATION
449
5
DIN V. ATTORNEY-GENERAL OF FEDERATION
JOSEPH MANGTUP DIN
V
10 A-G. OF THE FEDERATION
SUPREME COURT OF NIGERIA
OBASEKI
Ag.C.J.N.
UWAIS,
J.S.C.
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KARIBI-WHYTE,
J.S.C.
NNAEMEKA-AGU, J.S.C.
WALT,
J.S.C.
23rd September, 1988
APPELLANT
RESPONDENT
SUIT NO. SC 40/1986
Constitutional Law - Fundamental Human Rights - Government acquisition of property -
Recovery - Ouster of Jurisdiction of the Court - Retroactive legislation - Fundamental
Rights (Enforcement Procedure) Rules 1979.
Evidence - Affidavit evidence - Conflicts - Resolution - Proper verdict thereof.
Practice and Procedure - Institution of actions - Originating
S11171171011S -
Entering of
appearance - Affidavit evidence - Resolution of conflicts in affidavits.
Jurisdiction - Issue of jurisdiction - Time to raise - Courts - Enquiry into validity of a decree.
Interpretation of Statutes - Statutes encroaching on the fights of subjects - Construction
strict - Fonissime contra preferentes.
ISSUES:
1.
Whether an appeal court can
suo motu
raise issues which the parties did not raise
and under what circumstance can Issues be raised
(suo motu).
2.
Whether fundamental rights violated in 1970 or 1974 can be enforced under the
provisions of sections 40 and 42 of the 1979 Constitution of the Federal Republic
of Nigeria.
3.
At what point can the issue of jurisdiction be raised in an action.
4.
Whether the court has jurisdiction to deal with an issue relating to the validity of
a decree.
5.
What is the difference between the concept of acquisition, and the concept of
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forfeiture of property.
FACTS:
The appellant, as plaintiff, instituted an action by originating summons against
the respondent in 1983, under the Fundamental Rights (Enforcement Procedure)
Rules 1979, claiming
inter alia
a declaration that the purported forfeiture by the
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Federal Military Government, of his property at Vondi Estate, the temporary site of
the Federal Advanced Teachers College Pankshin, was unconstitutional, null and
void. He also claimed mesne profits and an injunction to restrain the Government
agents from continuing to use the property, or in the alternative, he claimed com-
pensation.
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35
40
450
NIGERIAN SUPREME COURT CASES
[1988] 2 N.S.C.C.
The respondent did not enter an appearance, and judgment was given in default,
against the respondent. The respondent however, applied to set aside the judgment,
and filed a counter- affidavit, challenging the appellant's claims.
The land, the subject matter of the dispute, was acquired by the appellant over
a period of time, beginning from 1959, and was being developed as a holiday resort
consisting of 16 bungalows. The appellant contended, that in January 1984, the land
was entered into by agents of the Federal Ministry of Education, without his consent
and he proceeded to send various complaints and protests to the government, until
1983, when he brought this action. The respondent on the other hand, contended
that in 1970, the Federal Military Government Promulgated the Recovery of Public
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Property (No.2) Act. by which the appellant forfeited his property, and that every-
thing done in respect of the property was done in pursuance to the intendment of
the Recovery of Public Property Decree No.58 of 1970 as amended by Decree No.22
of 1972.
No oral evidence was taken, and the case was heard on the conflicting affidavits
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of the parties. The counsel for the respondent in his final address, contended that
the trial court had no jurisdiction to entertain the matter. The learned trial judge
agreed with this, and held that he was not competent to entertain the application,
and dismissed the action.
The appellant, agrieved by this decision, appealed to the Court of Appeal, con-
2
tending
inter aiia,
that the learned trial judge erred in not taking oral evidence in order
to resolve the conflicts in the affidavits and that the trial judge could not have come
to the conclusion that the appellant's property was forfeited, without hearing oral evi-
dence. These complaints were upheld by the Court of Appeal, which reversed the
decision of the trial court, and remitted the matter to the High Court for trial
de-novo
before another judge.
The appellant, again aggrieved by the decision of the Court of Appeal, appealed
to the Supreme Court, complaining
inter alia
that the learned justices of the Court
of Appeal erred in law and in fact in not holding that the learned trial judge was wrong
in setting aside the default judgment obtained.
Lt.
HELD:
1.
It is trite law that generally an Appeal Court would not
suo motu
raise issues
which the parties did not raise; however, in exceptional circumstances the court
has a discretion to raise such issues, particularly where the issue involved is
fundamental in nature. The issue of jurisdiction, which was raised in this case,
is indeed fundamental, and ought not to have been overlooked by the lower
courts.
2.
The cause of action in this case, arose in 1970 or 1974, and the appellant did
not challenge the forfeiture at the time, but waited till around 13 or 9 years later.
The action was brought under the provisions of the Fundamental Rights
z
(Enforcement Procedure) Rules 1980, which prescribed the practice and
procedure to be followed in respect of the contravention of the fundamental
rights provided in Chapter 4 of the 1979 Constitution. This was an irregularity.
It is improper for an appellant to bring an action under the rules which were made
to facilitate the enforcement of rights under the 1979 Constitution, when he is
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not challenging the infringement of his fundamental rights under the 1979
Constitution.
3.
The issue of jurisdiction to entertain an action can be raised at any stage of the
proceedings, whether in the court of first instance, or at the Court of Appeal, as
was held by the Supreme Court in
Obikoya v. Registrar of Companies and Anor.
(1976) 4 S.C. 31, 34 - 35.
4.
The Recovery of Public Property Decree No.58 of 1970 as amended by Decree
No.22 of 1972 forfeited the assets of the appellant. That being the case, the
claim that the forfeiture be declared unconstitutional, null and void. is a direct
DIN V. ATTORNEY-GENERAL OF FEDERATION
451
challengeto the validity of the decree, and the competence of the Federal Military
Government, to promulgated the decree. The court has no judicial powers, by
virtue of section 6(6)(d) of the 1979 constitution, to deal with a matter relating to
the validity of a decree, and thus, has no powers to decide the issue.
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5. The concepts of acquisition of property and forfeiture are mutually exclusive.
While an acquisition under the Nigerian Law and the Constitution attracts
compensation, forfeiture does riot. Indeed, forfeiture connotes seizure of
property for a breach of code of conduct or infraction of the law.
OBITER:
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When it is stated that a court should construe an expropriatory legislation
for-
tissime contra preferentes
it simply means that such a statute should, if possible, be
interpreted in such a way as to respect such a right. That canon of construction will
become relevant only if there is an ambiguity, one possible meaning taking away
such a right, while the other preserves it. In such a case, on the presumption that
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proprietary rights are not taken away without a provision for compensation, the in-
terpretation which preserves the right is to be preferred.
Editorial Note:
As to
an appellate court raising issue
suo
mote which the parties did not arise
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See: Overseas Con. Co. Ltd. v. Creek Ent. Ltd. & Anor.
(1985) 16 N.S.C.C. Pt. 11
1371
As to
when the issue of jurisdiction can be raised in an action
I See:
1.
Management Enterprises Limited v. Otunsanya
(1987) 18 N.S.C.C. Pt. 1
577.
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2.
Obikoya v. The Registrar of Companies & Anor.
(1975) 9 N.S.C.C. 196.
3.
Ezomo v. Oyakhire
(1985) 16 N.S.C.C. Pt. 1 280.
4.
Chacharus v. Ekimpex Ltd.
(1988) 19 N.S.C.C. Pt. 1 65.
5.
Uwaifo v. Attorney-General Bendel State & Ors.
(1982) 13 N.S.C.C. 221.
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CASES REFERRED TO IN JUDGMENT:
1.
Bello v. The Diocesan Synod of Lagos
(1973) 3 E.S.C.N.L.R. (Pt. 1) 330 at
344.
2.
Peenok Investment Limited v. Hotel Presidential Limited
(1982) 12 S.C. 1.
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3.
Akinsete v. Akindutire
(1966) 1 All N.L.R. 147, 148.
4.
Omosohwofe Eboh & Anor. v. Willie Oki & Ors.
(1974) 1 S.C. 179, 189.
5.
Olu-Ibukun & Anor. v. Adesola Olu-Ibukun
(1974) 2 S.C. 41 at 4
7
/
8
.
6.
Falobi v. Falobi
(1976) 1 N.M.L.R. 169, 177-178.
40 7.
Onyema Oke v. Amos Eke & 3 Ors.
(1982) 12 S. C. 218.
8.
Samuel Fadiora & Anor. v. Festus Gbadebo & Anor.
(1978) 3 S.C. 219.
9.
North Straffordshire Railway Co v. Edge
(1920) A.C. 254, 263.
10.
United Marketing
Co. v.
Kara
(1963) 1 W.L.R. 523, 524.
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11.
Djukpan v. Oravuyovbe
(1967) 1 All N.L.R. 134, 137 - 138.
12.
Okoye v. Dumez
(1985) 1 N.W.L.R. 783, 794.
13.
Dullewe v. Dullewe
(1969) 2 A.C. 313, 325.
14.
Johnson v. Aderemi
13 W.A.C.A. 297, 298.
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15.
Davis v. Galmoye
39 Ch.D. 322.
16.
Akande v. Araoye
(1968) 1 All N L.R. 214, 217 - 218.
17.
Akunnia v. Attorney General, Anambra State,
(1977) 5 S.C. 161.
18.
Re Squire's Settlement
(1946) 115 L.J. Ch. 90.
19.
Forfie v. Seifar
(1958) A.G. 59, 67.
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