ALHAJI BABA BAKIN SALATI v ALHAJI TALLE SHEHU (SC 26/1984) [1986] NGSC 8 (17 January 1986)

ALHAJI BABA BAKIN SALATI (APPELLANT)

v.

ALHAJI TALLE SHEHU (RESPONDENT)

(1986) All N.L.R. 53

Division: Supreme Court Of Nigeria

Date of Judgment: 17th January, 1986

Case Number: (SC 26/1984)

Before: Eso, Nnamani, Uwais, Karibi-Whyte, Kawu JJ.S.C

The Military Administrator of Benue State (qua the Governor) has by B.S.L.N. No 6 of 1978 designated the whole of Markurdi Township within the township the property subject-matter of this appeal is situated as an Urban Area. The respondent sued the appellant and two others for the revocation of the sale of the plot of land, alleging that it was done contrary to Islamic principle of contract of sale. But neither in the Muslim Area Court nor the Appeal Court was the question of the jurisdiction of the trial Court canvassed.

At the hearing of the appeal counsel for the appellant moved a motion for enlargement of time to file and argue additional grounds of appeal and for leave of court to take a new matter not raised in the lower courts.

HELD:

1.      The attitude of court has been that of not allowing a party on appeal to raise a question not raised in the court of trial or grant leave to a party to argue new grounds not canvassed in the lower courts except where the new grounds involved substantial points of law substantive or procedural which need to be allowed to prevent an obvious miscarriage of justice.

2.      It was clear that no further evidence was needed to be called and that the additional facts on which the new contention was based were already before this Court. Therefore the new matter raised a point of law of substance. Thus in granting the application the court took cognisance of the law in that the new matter being one of jurisdiction could be raised at any stage of the proceedings.

3.      By the combined effect of B.S.L.N. No. 6 of 1978 and S. 34 (1)(2) and S.39(1)(a) of the Land Use Act 1978, it is only High Court of Benue State which had jurisdiction to entertain the suit between the parties. It follows therefore that the proceedings and judgment of the Muslim Area Court Makurdi are null and void and of no effect.

Appeal allowed.

Nnamani, J.S.C.-By Suit No. M.A.C.9/79 filed in the Muslim Area Court of the Makurdi, Benue State, the respondent in this appeal sued the appellant and two others "seeking court assistance for revocation of sale Plot No. 3 Bank Road, Markurdi done contrary to Islamic principle of contract of sale"

At the trial which commenced on 28th January, 1980, neither party was represented by counsel. All the parties except the 1st defendant therein, Alhaji M. Fari, who sent a letter protesting against the trial on grounds of what he called "non-Islamic objectivity", were present. After a trial in which the Respondent, his two witnesses as well as two of the defendants gave evidence, judgment was entered in favour of the respondent. Being dissatisfied with this judgment, the appellant herein appealed to the Benue State High Court which on 7th May, 1982, allowed the appeal and set aside the judgment of the Muslim Area Court. The respondent appealed to the Court of Appeal, Jos which on 1st March, 1984 allowed the appeal and restored the judgment of the Area Court. Umaru Abdllahi, J.C.A. concluded his lead Judgment in these terms:-

"........In view of the passage quoted above from the judgment of the area Court, with all due respect, the learned High Court Judges were wrong to hold that no principle of applicable Islamic law is staged by the trial court. It is my view that all the submissions made by Mr Uloko in respect of certificate of occupancy, applicability of the provisions of the Land Use Act 1978 and the non-joinder of the Governor as a party to the suit before the trial court are misplaced. Having regard to what I highlighted in dealing with the grounds of appeal above, it is my judgment that there is merit in this appeal. All the grounds of appeal argued succeed. The appeal is accordingly allowed."

The appellant herein appealed to this Court. It is pertinent to mention here that neither in the Muslim Area Court, nor in the Court of Appeal was the question of the jurisdiction of the trial court canvassed. Originally, the appellant filed two grounds of appeal complaining in the main against the failure of the Court of Appeal to hold that Tiv Native Law and Customs applied to the contract of sale of the property in question.

At the hearing of this appeal, however, learned Senior Advocate appearing for the Appellant, Mr Peterside, applied by way of motion for extension of time within which to file and argue additional grounds of appeal. In the course of argument on the motion, the appellant also prayed for leave of this Court as the new grounds of appeal had not been raised in the courts below.

In the first additional ground of appeal the appellant complained that

"the decision of the Court of Appeal is erroneous in law, in that it purports to confirm the judgment of the Muslim Area Court which court had no jurisdiction to try the claim, the subject matter of this appeal, having regard to Sections 34(1) (2)(3) and 39(1)(a) of the Land Use Act No.6 of 1978."

It was not necessary to consider the other additional grounds which were filed in the alternative. This additional ground of appeal raised a matter which was neither raised in the trial Court nor in the High Court nor in the Court of Appeal-in other words it was being taken for the first time in this Court. Learned Senior Advocate for the Appellant, while moving his motion for enlargement of time to file and argue this additional ground, also prayed for leave of this Court to take the new matter. The application was not opposed by learned Counsel for the respondent, Mr Emmanuel Toro. The prayer for enlargement of time to file and argue an additional ground did not raise much dust. It was the additional prayer to raise a new matter not raised in the three lower courts that merited closer attention. The attitude of this Court has been that it will not allow a party on appeal to raise a question not raised in the Court of trial or grant leave to a party to argue new grounds not canvassed in the lower courts except where the new grounds involve substantial points of law substantive or procedural which need to be allowed to prevent an obvious miscarriage of justice. See K. Akpene and Barclays Bank of Nigeria Limited and Anor. (1977) 1 S.C. 47; Debesi Djukpan v. Rhorhadjor Orovuyovbe and Anor. (1967) 1 All N.L.R. 134, 137; Re Cowburn Exparte firth (1881-85) All E.R. 987, 991; Agnes Deborah Ejiofodomi v. H.C. Okonkwo (1982) 11 S.C. 74 at 96-98, 109; United Marketing Co. Ltd. v. Kura (1963) 1 W.L.R.523.

Idigbe, J.S.C. in Fadiora v. Gbadebo 1 L.R.N.9, 108 touched on the other points which this Court takes into consideration. The learned and revered late Justice said-

"However, the law is that where a point of law which has not been taken in the court below is put forward by an appellant for the first time in a Court of Appeal that court ought not to decide in his favour unless it is satisfied beyond reasonable doubt-

(a)     that it has before it all the facts bearing on the new contention as completely as if it had been raised in the lower court (i.e. court of first instance) and

(b)     that no satisfactory explanation could have been given in the court below if it had been so raised (See Tasmania (Owners) and Freight Owners v. Smith, etc. City of Cornith (Owners) (1890) 15 APP Cas 223)."

In the instant appeal it was obvious that the new matter raised a point of law of substance. Indeed, it was fundamental since it touched on the jurisdiction of the trial court which heard the suit. It was equally clear that no further evidence needed to be called and that all the material facts on which the new contention was based were already before this Court. In granting the application this Court took cognisance of the law in that the new matter being one of jurisdiction could be raised at any stage of the proceedings.

Having thus secured the leave of this Court to argue the new ground learned Senior Advocate for the Appellant, Mr Peterside, made a short but fatal attack on the competence of the Moslem Area Court Makurdi to try the matter between the parties. He relied on Sections 1,2, 34(1)(2) and (3),39(1) of the Land Use Act 1978 pursuant to whose provisions land in each state is vested in the Military Governor of that State. The Military Governor is vested with power to designate areas of the State Urban areas. Land in such an area could be the subject of a statutory right of occupancy; The High Court had exclusive original jurisdiction with respect to any proceedings the subject matter of a statutory right of occupancy granted by the Military Governor or deemed to be granted by him under the Act. He also referred to the "Land Use Designation of Urban Area Order 1978" Published as B.S.L.N. of 1978 under which Makurdi was designated an Urban Area with effect from 24th November, 1978.

It was his submission that No.3 Bank Road, Makurdi being the subject of a statutory grant of right of occupancy deemed to be granted by the Military Governor, any matter concerning that statutory rights on occupancy (such as here there is a question) of revocation of sale of that plot) must be tried by the High Court and not the Muslim Area Court. Accordingly the judgment of the Muslim Area Court was a nullity and the subsequent proceedings before and judgments of the High Court of Appeal were also null and void.

Learned Counsel for the Respondent, Mr Toro, really had no answer to his argument. He nevertheless contended that from the cause of action and the entire circumstance of the case what was in dispute concerned a contract or agreement for the sale of the house in dispute made between Moslems. It was his view that since all that was involved was enforcement by specific performance of a contract or agreement for the sale of a house, a consideration of the provisions of the Land Use Act 1978 did not arise. He was reinforced in his view by the fact that the question of the Appellant having a certificate of occupancy was never raised before the trial Area Court. No certificate of occupancy was tendered by the Appellant in the High Court and efforts to do so in the Court of Appeal failed.

Not satisfied with the submissions of his professional college, Alhaji Abba for the Respondent further contended that the Land Use Act 1978 did not apply because the issue in the suit was not the revocation of title under a c Certificate of Occupancy but revocation of Sale under Islamic Law. He contended that the applicable law is Area Court Edict No.4 of 1968, Sections 20 and 21. He also referred to Section 61 of the Area Court Edict on procedure.

The matter to be determined in this appeal seems to me quite short in the face of the appellant's ground of appeal raising jurisdiction. As earlier stated in this judgment, the summons in the Muslim Area Court was for revocation of sale of Plot 3, Bank Road, Makurdi done contrary to Islamic Principle of Contract of Sale. On the face of it, it would appear that the suit was concerned with a contract of sale which was thought to have been contrary to Islamic law. Mr Toro before the Court of Appeal referred to Sections 20(1)(a), and 21(2) of the Area Courts Edict (Law)1968. The two sections provide as follows:-

"20(1)(a)     Subject to the provisions of this Edict, and in particular of Section 21, an Area Court shall in civil cases and matters administer-

          (a)     the Customary law prevailing in the area of the jurisdiction of the Court or binding on the parties.

21      (1)     In mixed civil issues other than land cases the native law and custom to be applied by an area court shall be

          (2)     In land cases or matters, the native law and custom to be applied by an area court shall be the native law and custom in force in relation to land in the place where the land is situated."

It was his view that this being a case of a contention as to sale of property as between two Moslems the procedure of which was said to have violated Islamic principle of law simpliciter binding between the two parties the Land Use Act was irrelevant.

I think that the matter goes beyond the revocation of the contract of sale of property. The property involved here was a house known as Plot 3, Bank Road, Makurdi. The Military Administrator of Bendel State had in exercise of the powers conferred on him by Section 3 of the Land Use Act designated Makurdi an Urban Area. This was by B.S.L.N. No.6 of 1978 to which reference had earlier been made. Under the transitional provisions in the Land Use Act, Section 34(1)(2)(3) and (4) apply to developed urban area such as Plot 3, Bank Road, Markurdi S34(2) provides that:

"Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a statutory right of occupancy issued by the Military Governor under this Decree."

In other words, from the date Makurdi was designated an Urban Area such that this section became applicable to Plot 3, Bank Road, the vendor of it was deemed by law to be the holder of a certificate of statutory right of occupancy issued by the Military Administrator/Governor. It was misconceived to argue as Mr Toro and Alhaji Abba did that no certificate of statutory right of occupancy was tendered in the Area Court or the High Court. Being the subject of a grant of a statutory certificate of occupancy a sale of the property (whether Islamic principles would govern such contract of sale or not) cannot be effected without the involvement of the Governor/Military Administrator. Section 39(1) of the Land Use Act 1978 provides that-

"(1)    The High Court shall have exclusive original jurisdiction in respect of the following proceedings:-

(a)     proceedings in respect of any land the subject of a statutory right of occupancy granted by the Military Governor or deemed to be granted by him under this Decree; and for purposes of this paragraph proceedings includes proceedings for a declaration of title to a statutory right of occupancy."

By the combined effect of B.S.L.N. No. 6 of 1978, and Sections 34(1) (2) and 39(1)(a) of the Land Use Act 1978, it is only the High Court of Benue State which had jurisdiction to entertain the suit between the parties herein. It follows therefore that the proceedings before the Muslim Area Court Makurdi in Suit No. M.A.C. 9/79 are null and void and of no effect. The judgment of that Court dated 23.5.80 being delivered without jurisdiction is also null and void and of no effect. Since there was in effect no judgement appealable to the High Court, the entire proceedings of that court as well as the judgment dated 7.8.82 are declared null and void and of no effect. Similarly, and for the same reasons, the entire proceedings as well as the judgment of the Court of Appeal dated 1.3.84 are declared null and void and of no effect. The judgment of the Muslim Area Court having been declared null and void there was nothing on which a further appeal to the High Court and the Court of Appeal can be foisted. In the words of Lord Denning in MacFoy v. U.A.C. (1962) A.C. 152, 160.

"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."

(Italics mine.) See also Skenconsult (Nig.) Ltd. and Anor. v. Godwin Sekondly Ukey (1981) 1 S.C. 6 at 39.

In all the circumstances, I shall allow the appeal. It is accordingly allowed. The judgment of the Muslim Area Court, Makurdi in Suit No. M.A.C. 9/79 is null and void and of no effect. I also declare null and void and of no effect the judgments of the High Court, Benue State and the Court of Appeal (Jos Judicial Division) being purportedly judgment on appeal from the said judgment of the Muslim Area Court, Makurdi. N300 costs are hereby awarded in favour of the appellant.

Kayode Eso, J.S.C.-I have had a preview of the judgment of my learned brother, Nnamani, J.S.C. in this appeal and I am in entire agreement. The only issue raised in the appeal is very short. It is a matter of jurisdiction. The property involved in the appeal is situated at No. 3 Bank Road and under the Land Use Act the Military Administrator of Benue State (qua the Governor) has, by notice contained in the Gazette, (see B.S.L.N. No. 6 of 1978), designated the whole of Makurdi Township within which township the property is situated as an Urban Area.

By virtue of Section 3 of the Act, the area was designated and by virtue of s. 34 of the Act the person in whom the land was vested immediately before the commencement dated of the Decree would be deemed by law to be holder of a certificate of statutory right of occupancy.

The Court that would have exclusive jurisdiction by law to deal with the issues raised on the law would therefore be the High Court of the State-see s. 39(1) of the Act.

For these reasons and the reasons which have been set out in detail in the judgment of my learned brother Nnamani, J.S.C. with which I am in full agreement, I too will allow the appeal. I abide by all the orders made in the judgment of my learned brother Nnamani, J.S.C.

Uwais, J.S.C.-I had been privileged to have a preview of the judgment by my learned brother Nnamani, J.S.C. I entirely agree with the reasoning and conclusion therein. I too would allow the appeal.

However, I deem it necessary, in view of the importance of our decision in this case, which affects the jurisdiction of the Area Courts in the Northern States, to discuss the import and implications of the provisions of Sections 3, 39 and 41 of the Land Use Act 1978. It is neither desirable nor necessary for the purpose of the exercise, for me to recount the facts of the case which have been adequately and ably narrated by my learned brother Nnamani, J.S.C.

The history of the jurisdiction of area courts in land matters is traceable to the provisions of the Land Tenure Law Cap. 59 of the Laws of Northern Nigeria 1963 which was enacted in 1962. Under the provisions of Section 5 of the Law the control of all the lands within the boundaries of the former Northern Nigeria as well as all the rights over the land were vested in the Minister of Northern Nigeria charged with the responsibilities of the appropriate Ministry that administered lands. The title to use and occupy land under the Land Tenure Law was called the right of occupancy. This right was divided into two, namely, statutory right of occupancy and customary right of occupancy. Statutory right of occupancy was a right of occupancy granted under the provisions of Section 6 of the Land Tenure Law or of any written law which had been replaced by the Land Tenure Law. The grant of such right was undertaken by either the Governor of Northern Nigeria or the Minister charged with the responsibility of administering lands or any public officer or local government that had been duly authorised to make the grant. By contrast, customary right of occupancy was a right or title that could be acquired only by a native of Northern Nigeria, or a native community. Such acquisition could only come about the operation of any native law and custom prevailing where the land was situated.

The jurisdiction of the courts established for Northern Nigeria followed the division of the rights of occupancy. Hence the provisions of Section 41 of the Land Tenure Law which are as follows:

"41.    (1)     The High Court shall have exclusive original jurisdiction in the following proceedings-

(a)     proceedings in which the right of the Governor or the Minister to grant a statutory right of occupancy over any land is in dispute;

(b)     proceedings by way of petition of right;

(c)     proceedings of the Attorney-General under the provisions of Subsection (1) of Section 39.

(2)     An area court of competent jurisdiction shall have jurisdiction in the following proceedings-

(3)     The High Court and District Court (within the respective limits prescribed in the District Court Law) shall have jurisdiction in the following proceedings-

(a)     proceedings in respect of any land the subject of a statutory right of occupancy granted by a native authority or of a customary right of occupancy where one or more of the parties are not subject to the jurisdiction or area courts;

(b)     proceedings of the description referred to in paragraph (a) of Subsection (2) where there is no native court of competent jurisdiction available to try the proceedings;

(c)     proceedings in respect of any land the subject of any right of occupancy other than those otherwise specifically described in this section.

(4)     Proceedings in respect of any land the subject of a right of occupancy shall include proceedings for a declaration of title to a right of occupancy.

(5)     (a)     Proceedings for the recovery of rent payable in respect of any certificate of occupancy may be taken in the High Court of a District Court (within the respective limits prescribed in the District Courts Law) by and in the name of any other officer appointed by the Minister in that behalf.

          (b)     Proceedings for the recovery of rent payable in respect of any statutory right of occupancy granted by a local authority or any customary right of occupancy may be taken by and in the name of the local authority concerned in an area court of competent jurisdiction.

(6)     An area court established under any Area Courts Edict shall, within the limits and to extent of its jurisdiction, be a court of competent jurisdiction for the purpose of this Section."

Now the Area Courts in Benue State were established in accordance with the provisions of Section 3 of the Area Courts Edict 1968 (Edict No. 4 of 1968) of the former Benue-Plateau State, applicable to Benue State. The section reads:

3.       (1)     By warrant under his hand, the Chief Justice may establish such area courts as he shall think fit.

          (2)     Every area court shall exercise the jurisdiction conferred upon it by or under this Edict within such area and to such extent as may be specified in its warrant.

          (3)     The Chief Justice shall assign to each area court established in pursuance of this section such name as he may think fit.

(4)     All warrants shall be operative and of effect from the date specified therein.

(5)      The Chief Justice may at any time suspend, cancel or vary any warrant establishing an area court or specifying the area within which, or the extent to which, the powers of an area court may be justified.

(6)     The Chief Justice shall cause the jurisdiction of each area court to be notified from time to time in the Benue-Plateau State Gazette."

By the provisions of Sections 14, 15 and 18 of the Area Courts Edict, the Area Courts of Benue State were conferred with the following jurisdiction-

"14     (1)     Subject to the provisions of this Edict and of any other written law, any person may institute and prosecute any cause or matter in an area court.

(2)     Any person who institutes or prosecutes any cause or matter in an area court under the provisions of Subsection (1) shall in that cause or matter be subject to the jurisdiction of that area court and of any other court exercising jurisdiction in that cause or matter.

15      (1)     Subject to the provisions of this Edict and of any other written law, the following persons shall be subject to the jurisdiction of area courts-

(a)     any person whose parents were members of any tribe or tribes indigenous to some part of Africa and the descendants of any such person;

(b)     any person one of whose parents was a member of such tribe; and

(c)     any other person in a cause or matter in which he consents to the exercise of the jurisdiction of the area court.

(2)     The Military Governor may by order direct that any or all of the powers conferred by this Edict shall not be exercised by any area court over any persons or classes of persons designated in such order or that such powers shall not be so exercised without the consent of the persons concerned.

(3)     No area court shall exercise, in contravention of any order made under Subsection (2), any jurisdiction conferred by this Edict.

18.     Every area court shall have jurisdiction and power to the extent set forth in the warrant establishing it, and subject to the provisions of this Edict and of the Criminal Procedure Code Law, in all civil and criminal cases in which all the parties are subject to the jurisdiction of such area court."

That was the extent of the jurisdiction of the Area Courts before the promulgation of the Land Use Act 1978. By the coming into force of the Act a radical change took place with regard to the division of the jurisdiction amongst the courts in the northern States. Unlike what obtained in the past, that is pre-28th March, 1978 when the Land Use Act came into force, all land in the territory of each State in Nigeria became vested in the Military Governor of such State. And the land in each state is to be held in trust by the Military Governor, who is to administer it for the use and common benefit of all Nigerians in accordance with the provisions of the Land Use Act.

By the provision of Section 3 of the Land Use Act 1978 the Military Governor of each State is empowered to designate any area of the state as an urban area. Such designation is to be effected by an order issued by the Military Governor, and the order must be published in the State Gazette. It was in exercise of that power that the Military Administrator of Benue State made the Land Use Designation of Urban Area Order 1978, which was published in the Benue State Gazette as Benue State Legal Notice, No. 6 of 1978. The Legal Notice reads:

"B.S.L.N. 6 of 1978

THE LAND USE DECREE, 1978(No. 6 OF 1978)

THE LAND USE DESIGNATION OF URBAN AREA ORDER, 1978       

Date of Commencement:                             24th November, 1978                       

In exercise of the powers conferred by section 3 of the Land Use Decree and of all other powers enabling in that behalf the Military Administrator of the Benue State of Nigeria hereby makes the following order:-

1. This order may be cited as the Land Use Designation of Urban title and Area Order, 1978, and shall be deemed to have come into operation on the 24th day of November, 1978.  Title and commencement.

2. All the area specified in the Schedule to this order hereby designated as urban areas for the purpose of the Land Use Decree, 1978.     Designation of urban area.

                                                                                             SCHEDULE

                                                                                      Designated Urban Areas

Adikpo,                                        Aliade,                               Ankpa,                                           Ayengba,