SAUDE V. ABDULLAHI.

• Pages: 177-214

SAUDE V. ABDULLAHI

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177

SAUDE V. ABDULLAHI

ALHAJI DAHIRU SAUDE

V

ALHAJI HALLIRU ABDULLAHI

SUPREME COURT OF NIGERIA

APPELLANT

RESPONDENT

SUIT NO. SC 197/1987

OBASEKI,

ESO,

UWAIS,

KARIBI-WHYTE,

OPUTA,

AGBAJE,

CRAIG,

21st July, 1989

J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

Constitutional Law - Fundamental Human Right - Certificate of Occupancy - Revocation

of - S.40(1) of 1979 Constitution - Fundamental Right (Enforcement Procedure) Rules,

1979.

Land Law - Certificate of Occupancy - Revocation of - Land Tenure Law and Land Use

Act.

Practice and Procedure -

C017111102CeMent Of

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-

Originating Summons - Irregularities

in - Effect of - When to be raised. Appeals - Issues for detennination - New issues - Need

for cross appeal or Respondent's Notice - Appeals - Grounds of Appeal - Raising issues

suo motu - Hearing to panics.

ISSUES:

1.

Whether the absence of the signature of a High Court judge on an originating

summons constitutes such a defect as to render the proceedings subsequent

thereto a nullity.

2.

When should an objection against procedural irregularity be raised?

3.

Under what circumstance will a party be allowed to raise an objection based on

procedural irregularity on appeal?

4.

What is the effect of a misdirection on the judgment of a trial court?

5.

When is an action initiated with due process of law?

6.

Whether an appellate court can deal with issues not raised before it.

7.

How should an appellate court exercise its discretion to take points

suo motu?

8.

Whether the Supreme Court in

Governor of Kaduna State v. Dada

decided the

effect of revocation of right of occupancy under the Land Tenure Law.

9.

Whether an appellate court can be asked to affirm a decision on a ground which

does not arise from the grounds of appeal.

10.

What is the effect of the Land Use Act on the Land Tenure Law?

FACTS:

The Respondent, as Plaintiff, took out an originating summons in the Kaduna

High Court under the Fundamental Right (Enforcement Procedure) Rules 1979

against the Governor of Kaduna State, Attorney-General of the state and the

appellant (the 3rd defendant) challenging the revocation of his statutory right of

occupancy over a piece of land. The revocation order was made under the Land

Tenure Law. The originating summons, was not signed or sealed by a judge.

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NIGERIAN SUPREME COURT CASES

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[1989] 3 N.S.C.C.

The case was contested on affidavit evidence as no oral evidence was adduced

at the hearing. At the trial, counsel to the 1st and 2nd defendants conceeded that

the revocation order was illegal, null and void. The learned trial Judge entered

judgment for the Respondent.

The Appellant appealed to the Court of Appeal challenging

inter alia,

the validity 5

of the originating summons. Leave was sought and obtained to raise this issue on

appeal as the alleged irregularity or invalidity of the originating summons was not

challenged at the court below. The Court of Appeal held that the failure of the judge

to sign the originating summons did not vitiate the proceedings.

Dissatisfied with the judgment of the Court of Appeal the Appellant appealed to 10

the Supreme Court contending,

inter alia,

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. In reply, the Respondent 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.

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HELD:

1.

Nowhere in the body of the Fundamental Rights (Enforcement Procedure) Rules

1979 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. However, the form of the originating summons which is prescribed in the 20

Appendix to the Rules as Form 2 implies that the originating summons would be

signed by a judge. Failure of a judge to sign an originating summons is a

procedural irregularity.

2.

It is a 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 25

be set aside if the party affected acted timeously and before taking a fresh step

since discovering the irregularity.

3.

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 30

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.

4.

Where the person complaining of an irregularity on appeal is able to show that a

miscarriage of justice had occured by reason of the irregularity, he would be 35

allowed to rely on the alleged irregularity to set aside the proceedings.

5.

Unless a 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. Under the provisions of Order 8, rule 13 of the Supreme Court Rules, 1985,

the Supreme Court has the power to order a new trial on the ground of 40

misdirection, but it will not exercise that power unless it is satisfied that substantial

wrong or miscarriage of jutice has been occasioned by reason of the

misdirection.

6.

There is non-compliance with due process of law when the procedural

requirements have not been complied with, or the preconditions for the exercise 45

of jurisdiction have not been complied with.

7.

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 be correct to say that an

action or a suit has been commenced.

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50

8.

It is wrong for an appellate court to deal with matter which did not arise from the

issues submitted by the parties for determination in the appeal before it. The

excursion to other issues, though uncalled for, does not spell fatality to the

judgment if the proper issues are covered.

SAUDE V. ABDULLAHI

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179

9.

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.

10.

An appeal court is entitled, in its discretion to take points

suo motu,

if it sees it 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 a decision on the points is

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made by the appeal court.

11.The Court of Appeal in

Governor of Kaduna State v. Dada

decided that a

revocation of right of occupancy under S.34(2)(c) of the Land Tenure Law is

invalid null and void. The Supreme Court did not make any pronouncement

confirming or disagreeing with the Court of Appeal on this point as the decision

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on that particular point was not technically challenged in the Supreme Court since

the ground that raised the question was struck out

in limine.

12.

An appellate court will not take a case beyond the scope of the appellant's appeal

by acceeding to the respondent's request to consider an issue which does not

arise from the grounds of appeal unless there is a cross-appeal or respondent's

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notice. Applying Order 8, Rule 3(1), (2) and (3) of the Supreme Court Rules, 1985.

13.

The Land Tenure Law was imported into the Land Use Act by the Act itself in S.4.

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

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for the purpose are to be modified so as to bring the law into conformity with the

Act and its general intendment. It is not the Land Tenure Law that is in operation

but the Land Use Act.

[As to

Effect of Procedural Irregularities on Court Proceedings,

see:

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1.

Ajike v. Moladun

[1967] N.S.C.C. (Vol. 5) 264.

2.

Nneji & Ors. v. Chukwu & Ors.

[1988] N.S.C.C. (Vol.

19 Pt.

I) 1115.

3.

Eboh & Ors. v. Akpotu

[1968] N.S.C.C. (Vol. 5) 171.

4.

Madukolu & Ors. v. Nkemdilim

[1962] N.S.C.C. (Vol. 2) 374.

5.

Sken Consult (Nigeria) Ltd. v. Ukey

[1981] N.S.C.C. (Vol. 12) 1.

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6.

Ezomo v. Oyakhire

[1985] N.S.C.C. (Vol. 16 - Pt.

I)

280].

[As to

Attitude of Court to Issues volt raised before it,

see:

African Cont. Seaways

Ltd. v. Nig. Dredging Rds. & General Works Ltd.

[1977] N.S.C.C. (Vol. 11) 323.]

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[As to

Attitude of Appellate Court to Issues not raised in Grounds of Appeal,

see:

Odesanya v. Ewedemi

[1962] N.S.C.C:. (Vol. 2) 216.]

[As to

Effects of Technicalities generally on Judgments,

see:

1.

Obiora v. Osele 1

.

1989j 1 N.S.C.C. 174.

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2.

Trans Bridge

Co.

Ltd. v. Survey Inter. Ltd.

[1986] 2 N.S.C.C. 1101.

3.

Benson v. Ashiru

[1967] N.S.C.C. 198.

4.

Adunfe & Ors. v.

I.G.P. [1957] N.S.C.C. 60.

5.

Military Gov. of Lagos State v. Ojulmu & Anor.

[1986] 1 N.S.C.C. 304.

6.

Nneji & Ors. v. Chukwu & Ors.

[1985] 1 N.S.C.C. 1115.]

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CASES REFERRED TO IN JUDGMENT:

1.

Madukolu & Ors. V. Nkemdilim

(1962) 1 All N.L.R. 587.

2.

Nzawanne & Ors. v. Igwe & Ors.

(1976) 2 S.C. 11.

3.

Uttah v. Independence Breweries Ltd.

(1974) 2 S.C. 7.

4.

Okwuosa v. Okwuosa

(1974) 2 S.C. 13.

5.

Ike & Ors. v. Patrick Nze & Ors.

(1975) 2 S.C. 1.