3PLR – JOSEPH MANGTUP DIN V. A-G. OF THE FEDERATION

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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JOSEPH MANGTUP DIN

V.

A-G. OF THE FEDERATION

IN THE SUPREME COURT OF NIGERIA

SUIT NO. SC 40/1986

23RD SEPTEMBER, 1988

3PLR/1988/48  (SC)

 

OTHER CITATIONS

(1988) 4 NWLR (Pt.88)

 

BEFORE THEIR LORDSHIPS:    

OBASEKI Ag.C.J.N.

UWAIS, J.S.C.

KARIBI-WHYTE, J.S.C.

NNAEMEKA-AGU, J.S.C.

WALI, J.S.C.

 

REPRESENTATION

Chief F. R. A. Williams, S.A.N. (with him E. O. Sofunde), – for Appellant

1. O. Adio, Federal Director of Civil Litigation, (with him Uche-Okoro (Miss) State Counsel.), – for Respondent

 

MAIN ISSUES

CONSTITUTIONAL LAW – Fundamental Human Rights – Government acquisition of property – Recovery – Ouster of Jurisdiction of the Court – Retroactive legislation – Fundamental Rights (Enforcement Procedure) Rules 1979.

PRACTICE AND PROCEDURE – Evidence -Affidavit evidence – Conflicts – Resolution – Proper verdict thereof.

PRACTICE AND PROCEDURE – Jurisdiction -Issue of jurisdiction-Time to raise -Courts – Enquiry into validity of a decree.

INTERPRETATION OF STATUTES – Statutes encroaching on the rights of subjects – Construction strict – Fortissime contra preferentes.

PRACTICE AND PROCEDURE – Institution of actions – Originating Summons – Entering of appearance -Affidavit evidence – Resolution of conflicts in affidavits.

 

MAIN JUDGEMENT

UWAIS, J.S.C. (Delivering the Lead Judgment):

By an ex-parte application brought under Order 1 rule 2(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, the appellant was granted leave by the High Court of Plateau State, holden at Jos, to file an originating summons against the respondent claiming (as amended) as follows:-

“1.     A declaration that the purported forfeiture by the Federal Government of Nigeria of the plaintiff’s land and buildings situate at Vodni Estate, Mararaba Pushit, near Pankshin in the Plateau State of Nigeria, and at the temporary site of the Federal Advanced Teachers’ College Pankshin is unconstitutional, illegal, null and void.

2. N6,019,631.00k being Special Damages comprising:-

(i)      Mesne profits on the above estate for 9 years i.e. January, 1974 to December, 1983 at N1284,000.00k per annum N12,520,000.00k;

(ii)     Annual Bank Charges on Capital outlay for 9 years at 11% 143,149,631.00k

(iii)    Estimated cost of repairs and renovation 14350,000.00k

3. The sum of 14280,000.00k per annum or any proportions thereof as may be found due to the Plaintiff being mesne profits from January 1984 till judgment and thereafter until final payment to the Plaintiff.
4. And/or in the alternative, an inquiry into the amount of compensation due to the Plaintiff from the entry of the defendant and his agents unto the plain-tiff’s property at Vodni – Estate, Mararaba Pushit in 1974 to date.
5. An order of injunction restraining all officers and servants or agents of the Federal Government of Nigeria from continuing unlawfully to use the afore-said land and buildings of the plaintiff at Mararaba Pushit, Pleateau State of Nigeria without paying rents or compensation therefor.
6. Such further or other orders as the Court may deem appropriate.”

In the absence of the respondent entering appearance, judgment in default was given for the appellant. This was however set aside on the application of the respondent who thereafter filed a counter-affidavit challenging the appellant’s claims. The case was tried on the affidavit of the appellant and the affidavit and counter-affidavit filed by the respondent.

The facts of the case may be stated as follows. In 1970 the Federal Military Government promulgated the Recovery of Public Property (No.2) Act, 1970 by which the appellant forfeited some of his assets to the Federal Military Government. The 1970 Act was amended in 1972 by the Recovery of Property (Amendment) Act, 1972, which took effect retrospectively from the date that the 1970 Act came into force, namely, 24th December, 1970. Sections 1 and 2 of the 1970 Act, as amended, read thus –

1. Relevant assets for the purpose of this Decree are assets which are or purport to be the property of –

(a)     a person known or formerly known as Captain Din, or

(b)     a company known as Nitico, or

(c)     any other person or body corporate or in-corporate accused with the said Captain Din in criminal proceedings which terminated in Lagos in the year 1970.

2. Where any relevant assets are held by the Nigeria Police, it shall bathe duty of the Inspector-General of the Nigeria. Police to cause those assets to be sold and to cause the proceeds of the sale to be paid into the Consolidated Revenue Fund of the Federation”.

In 1959 the appellant began to acquire a tract of land measuring about 7 hectares at Mararaba-Pushit in Mangu Local Government Area of Plateau State. In January, 1974 part of the land was entered into by officers, servants and agents of the Federal Ministry of Education and the Federal Advanced Teachers College, Pankshin, Plateau State without the consent or permission of the appellant. As no oral evidence was adduced and the dispute between the parties in this case was tried by the High Court on the affidavits and counter-affidavit filed by the parties, it becomes necessary to have recourse in extenso to the depositions therein. Paragraphs 1 to 7 inclusive and paragraph 15 of the affidavit sworn to by the appellant state as follows:-

‘1.      The defendant is sued as the Chief Legal Officer of the Federal Government of Nigeria including its Ministries, and in particular as representing the Federal Ministry of Education, and the Federal Advanced Teachers’ College, Pankshin.

2. That I am the beneficial owner of 14 acres (approximately 7.1205 hectares) of land and buildings which form the subject-matter of this action situate at Mararaba Pushit in Mangu Local Government Area, 20 Kilometres from Pankshin on the Pankshin-Shendam-Jos Road, north of Jos Township in Plateau State of Nigeria, and more particularly delineated in the site Plans attached to the Certificate of Occupancy Nos. 944/82 and 945/82 dated 30th November, 1982 issued to me by the Mangu Local Government Council, annexed herewith, and marked Exhibits’a’ and ‘b’.
3. That I began acquiring the 14 acres (approximately 7.1205 hectares) which comprise the land in dispute sometime in 1959 and remained in undisturbed possession of same exercising maximum acts of possession thereon by inter alia, putting up various buildings, on parts thereof, until sometime in January 1974 when I was ousted of possession by officers, servants, and agents of the Federal Ministry of Education and of the Federal Advanced Teachers’ College, Pankshin, who went unto the premises without my con-sent, and in spite of several demands, have to date, refused or neglected to pay rents or any compensation whatsoever for their occupation and use of my property.
4. That sometime in 1960, I began developing the land in dispute into an estate-cum-holiday resort with the name “Mararaba-Pushi Vodni Estate.” By 1973, it consisted of 16 units of bungalows; the walls, of sandcrete and ash lar finish; the ceiling of flat asbestos sheets; and the doors of Crittall-Hope glazed and timer finish types.
5. That upon its entry in 1974 into the Vodni Estate, the Federal Ministry of Education put up its sign-post on the premises and referred to it as “the Temporary Site of the Federal Advanced Teachers’ College, Pankshin.”
6. That in spite of protests and petitions to officials of the Federal Government of Nigeria, including, inter alia, His Excellency, the President of the Federal Republic of Nigeria, Alhaji Shehu Shagari, past Heads of State, The Honourable Minister, Federal Ministry of Education, the Honourable Attorney-General of the Federation and the Principal of the Federal Advanced Teachers’ College, Pankshin, I have been unable to recover possession of the said property nor obtain just compensation thereof.
7. That at the trial of this action I will rely on various correspondence between me and/or my solicitors and officials of the Federal Government of Nigeria on the issue of the occupation of my Estate at Mararaba-Pushit near Pankshin and my unceasing demand for compensation or restoration of the pos-session to me.”
8. That to the best of my knowledge and belief the Vodni Estate at Mararaba-Pushit was never confiscated nor forfeited nor acquired in any legal manner whatsoever by any order, Decree, Edict, Act, or law of the Federation or of a State throughout the years of the Military inter-regnum from 1966 to 1979.”

Of the affidavit and counter-affidavit filed by the respondent the affidavit was sworn to by one Daniel Temisanren – A Chief Superintendent of Police. Paragraphs 1 to 9 of the affidavit read –

“1.     That I am Chief Superintendent of Police attached to ’A’ Department Force Headquarters, Moloney Street, Lagos and in that capacity I am familiar with the facts of this case.

2. That I have the authority and the consent of the respondent to swear to this affidavit.
3. That the property of the applicant, the subject matter of this suit and other liquid and concrete assets were in 1970 taken custody of by the Nigerian Police, Jos, pursuant to the Recovery of Public Property Decree No.58 of 1970.
4. That in 1974, due to the inability of the Nigerian Police to perform a sale of the property, the subject matter of the sale, the Inspector-General of Police, Alhaji Kam Salem gave the property to the Federal Ministry of Education for temporary use.
5. That the Nigerian Police force are by virtue of the Recovery of Public Property Decree No.58 of 1970 as amended by Decree No.22 of 1972 vested with the rights in the property.
6. That the consent of the Inspector-General of Police was given to the temporary use of the property by the Federal Ministry of Education, and that the applicant should have addressed all complaints to the Inspector-General of Police.
7. That the applicant’s right in the property was extinguished by the Recovery of Public Property Decree, 1970, and all rights are now vested in the Inspector-General of Police who has not been able to perform sale of the property till now.
8. That the applicant is not entitled to any damages as he no longer has any right in the property.
9. That everything done in respect of the property is in pursuance to the intendment of the Recovery of Public Property Decree No.58 of 1970 as amended by Decree No.22 of 1972.”

The counter-affidavit was sworn to by one Michael Olakunle Osholowu, who was a civil servant. Paragraphs 1 to 8 thereof state.

“1.     That I am a Deputy Secretary in the Federal Cabinet Office and in that capacity I am familiar with the facts of this case.

2. That I have the authority and the consent of the respondent to swear to this affidavit.
3. That the property of the applicant, the subject matter of this suit was forfeited by the Federal Military Government in 1970, and I am informed by Mr. E.O. Oyewo, State Counsel for the respondent whom I verily believe that the property was forfeited under the Recovery of Public Property Decree No. 58 of 1970, as amended by Decree No. 22 of 1972.
4. That the said Mr. E.O. Oyewo further informed me and I verily believe him that this Honourable Court has no jurisdiction to entertain this suit by rea-son of the Provisions of the Recovery of Public Property Decree No. 22 of 1972.
5. That I am further informed by Mr. E.O. Oyewo whom I verily believe that by virtue of the same Decree this action by the applicant is unmaintainable and lacks merit and should be so declared.
6. That Mr. E.O. Oyewo informed me and I verily believe him that by virtue of the provisions of the Constitution of the Federal Republic of Nigeria 1979 and also the provisions of the Recovery of Public Property Decree No.58 of 1970 as amended by Decree No.22 of 1972, this action is devoid of any merit and should be dismissed.
7. That the said Mr. E.O. Oyewo has further informed me and I verily believe him as follows:-
8. that since the subject matter of this suit was legally forfeited to the Federal Military Government in 1970, all right and interest which the applicant had in the property have been extinguished, therefore the Mangu Local Government could not legally grant a right of occupancy in respect of the same propertyto the applicant in 1982.
9. that the letter of the Permanent Secretary of 24th May, 1978, Ref. No. EDF.2/S.43/C.28/11/21 signed by one Okon W. Inyang on his behalf as pleaded in paragraph 8 of the applicant’s affidavit, was written in ignorance of the true legal position of the right of the applicant in the property.
10. that the letter from the Secretary to the Government of the Federation of 26th October, 1982, Ref. No.5852/IV/859A signed by one Camel Obi, as pleaded in paragraph 8 of the applicant’s affidavit, states the true legal position in respect of the property and the right of the applicant therein.
11. that the applicant is not entitled to any damages as his rights in the property were extinguished in 1970.
12. That Mr. E.O. Oyewo further informed me and I verily believe him that under Section 6 of Decree No.22 of 1972 it is the Head of the Federal Military Government, who may specify, if he thinks fit, a maximum sum recoverable under the Decree.”

At the hearing of the case both counsel for the appellant (as plaintiff) and the respondent (as defendant) addressed the learned trial Judge. In the course of his ad-dress counsel for the appellant abandoned claim No.4 in the originating summons while counsel for the respondent contended in his address that the trial court had no jurisdiction to entertain the appellant’s action. In his judgment, the learned trial Judge (Soluade, J.) arrived at the following’ conclusion –

“It is an accepted cannon of interpretation of statute that any law which seeks to deprive any person of his proprietary rights must be construed strictly against the law maker, vide Belle v. The Diocesan Synod of Lagos, (1973) 3 E.C. S. N. L. R. (Pt. 1) 330 at p.344 ………………… But once the Court after hearing evidence is satisfied that the act done was in good faith (or bad faith not having been established) in accordance with section 4 of Decree (sic) No.2 of 1970 now to read section 5 of Decree (sic) No.22 of 1972, then the Court will proceed no further.

I believe that the Federal Military Government made this provision to show that it is not acting arbitrary, (sic) but in conformity with civilized behaviour. It is only by its conduct expressed or implied that it can be Judge (sic) whether or not it acted in good faith, and it is the Court that can determine this aspect. The ousting of the jurisdiction of the court in this matter is not therefore absolute – as the learned counsel for the respondent contended.

It has been shown as in the cases referred to in Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C. 1.

‘that it is a wise and ancient doctrine that a Court will not inquire into the motives of a legislative body or assume them to be wrong.’

In other words that no mala fides should be imputed to a legislator in regard to his legislation. It therefore follows that for the application to succeed it must establish or prove bad faith. He who asserts must prove it. The applicant having failed to do so, the presumption is that the conduct of the Inspector-General of Police was in good faith.

For the reasons given earlier I have come to the conclusion that this court is not competent to entertain this application (sic). It is therefore dismissed.” (Italics mine)

Dissatisfied with the decision, the appellant appealed to the Court of Appeal (Akanbi, J.C.A., Agbaje, J.C.A. (as he then was) and Ogundare, J.C.A.) complaining inter alia –

(1)     That the learned trial Judge could not on the affidavit evidence before him come to the conclusion that it was established by the respondent that the asset in dispute was forfeited or held by the police, without hearing oral evidence.

(2)     That having regard to the conflict in the affidavit and counter-affidavit relied upon by the respondent, the learned trial Judge ought to have rejected the evidence adduced by the respondent.”

These complaints were upheld by the Court of Appeal. In his judgment Akanbi, J.C.A. observed as follows:-

“Here, because of the nature of the procedure adopted, the case had to be fought on affidavit evidence.

As can be discerned from his affidavit, the appellant averred that he was in effective control and possession of the property until he was ousted out of possession in 1974 by officers or servants of the Federal Ministry of Education and the Federal Advanced Teachers’ College, Pankshin. There is no indication, however, of how the appellant came to be ousted by the Federal Ministry of Education, and what steps were taken, what acts were done which compelled him to give up possession. It is also not clear from his affidavit that if as at 1974 the Ministry of Education indicated that they were acting on the authority of the Military Authority and if so, If there was any order of forfeiture and by whom, or on the authority of the Inspector-General whose functions have been clearly defined under the relevant Act. I am not in any way unmindful of the averment in paragraph 15 of the first affidavit of the appellant that the said property ‘was never confiscated nor forfeited nor acquired in any legal manner whatsoever ………………….. throughout the years of Military inter-regnum from 1966 to 1979’. I suppose this is why the claim itself speaks not of a ‘forfeiture’ by the Federal Government but of a ‘purported forfeiture’.

The significant point is that while the appellant says that he was in effective control in 1974, the affidavit of Temisaren seeking to justify the holding by the Inspector- General, stated that as far back as 1970, the Police were in custody of the property and that the property was passed on to the Ministry of Education for their ‘temporary use’ because it was not possible to effect a sale- The averment that the Police took control of the property in 1970 appears to me to be in sharp conflict with the appellant’s contention that he was in physical control of the property up to 1974. Besides, there is also the affidavit of Mr. Osholowu in which he averred that the property was forfeited in 1974 by the Federal Military Government. Clearly, without oral evidence it would, to my mind, be difficult to determine whether as the appellant contends there was no forfeiture. Or as indeed the respondent asserts, there was forfeiture.

That issue must first be resolved before any determination as to whether or not the property in question was lawfully held by the Inspector-General of Police can be made. And there has to be evidence to establish that the property (referred to as the ‘relevant assets’ in the Decree) indeed belongs to the appellant, since they have not been identified or listed in the Decree. Equally so, a determination as to whether or not the alleged act of handing over of the property to the Federal Ministry of Education by the Inspector-General of Police constituted an illegality which rendered any possession by the Inspector-General ab initio unlawful, becomes relevant and necessary, if and only if, the issue of forfeiture is determined one way or the other. And that determination, among others, as I said before, cannot be made on the basis of conflicting affidavit evidence; but on evidence given viva voce by witnesses whose credibility the trial Judge is pre-eminently qualified to assess. I need only add here that a long line of cases attests to the need to take oral evidence in cases where the affidavits are conflicting on ‘crucial facts’; and it is well that I refer to only a few of them in this judgment. See Akinsete v. Akindutire (1966) 1 All N.L.R. 147 at 148; Omosohwofe Eboh & Anor. v. Willie Oki & Ors. (1974) 1 S.C.179 at 189; Lawrence Olu-Ibunkun & Anor. v. Adesola Olu-Ibunkun (1974) 2 S.C. 41 at 47/8; Falobi v. Falobi (1976) 1 N.M.L.R. 169 at 178 cited by appellant’s counsel.” (Italics mine)

On the question of the jurisdiction of the High Court to consider the appellant’s claims, the following issues were raised by the appellant for the determination of the Court of Appeal –

“2.     Whether before the jurisdiction of the Court could be ousted by the provi­sions of Decree No.58 of 1970 the appellant had proved bad faith on the part of the Inspector-General of Police.

3. Whether the Court was right in going outside the provision of Decree No. 58 of 1970 to determine what are’ relevant assets’ under that Decree; 4. Whether the non-compliance with the provisions of Decree No. 58 of 1970 did not vitiate the holding of the property by the Police.”

The Court of Appeal held as follows:­

“There is no doubt that the trial Judge declined to exercise jurisdiction and give the case the deserved treatment because of the view he took on the issue of who had the duty of establishing ‘good faith’ with respect to any dealing with the ‘relevant assets’ under the law. Here again, it is my considered view that until there has been a determination as to whether or not there was indeed a forfei­ture, who by and what circumstances prompted it, any rule of thumb pronounce­ment made in this judgment on section 5 of the (1970) Decree (sic Act) which is sought to be interpreted, will be otiose if not hypothetical. To my mind section 5 does not come into play until it has been (shown) that there was a forfeiture and a lawful possession of the ‘relevant asset’ by the Inspector- General” per Akanbi, J.C.A. (Italics mine)

Agbaje, J.C.A. (as he then was) observed as follows:­

“Claim one of the plaintiff’s claims talks of purported forfeiture of the property in question by the Federal Government of Nigeria. If this is taken along with the averment in 8(j) upon which the plaintiff is relying, one gets the impression that the plaintiff is talking of a military forfeiture. On the other hand, we have the con­tention of the defendant in the affidavit evidence I have copied above that the properties in question were forfeited to the Federal Military Government as far back as 1970. So to that extent it can be safely said that the defendant has pleaded forfeiture of the property in question to the Federal Government. It is also clear to me that the defendant was relying on the Recovery of Public Property Act of 1970 (as amended by Act No. 22 of 1972) for his contention that the properly has been forfeited to the State. Section 4 of that Act provided that the Head of the Federal Military Government may by an instrument direct that the assets in question shall be forfeited to the State. So, it is my view that it is the instrument which signifies the forfeiture of the assets. In other words, the De­cree itself has not specifically forfeited the assets referred to. This is not to say that the assets were not forfeited under the Decree. It only means that the as­sets were forfeited by an instrument made pursuant to the Decree.

Since it is the defendant that is contending that the plaintiff’s property has been forfeited under that Act, the burden of producing the relevant instrument forfeiting the assets will no doubt be on the defendant. But this to my mind is a matter of evidence. I do not think the averment of the plaintiff in the affidavit evidence which I referred to above is a sufficient admission of the contention of the defendant that the assets, the subject matter of this action, have been forfeited to the Federal Government. This, therefore, is not, in my view, a case where the contentions of both parties in this action can be resolved as regards forfeiture of the property in question on affidavit evidence before the Court without further evidence in the witness box.

In effect I hold as regards grounds IV, V and VI of the additional grounds of the appeal that the question whether the property in dispute in this case has been forfeited to Federal Military Government pursuant to Act No. 58 of 1970 as amended by Act No.22 of 1972 cannot be properly and satisfactorily resolved on the affidavit evidence alone before the lower court without further evidence in the witness box. In my judgment therefore, the judgment of the Lower Court cannot be allowed to stand.”

And Ogundare, J.C.A. stated thus:­

“No instrument was produced in evidence to support paragraph 3 of the counter-­affidavit of Michael Olakinle Osholowu at page 23 of the records which reads:­” 3. That the property of the applicant; the subject of this suit was forfeited by the Federal Military Government in 1970, and I am informed by Mr. E.O. Oyewo State Counsel for the respondent whom I verily believe that the property was forfeited under the Recovery of Public Property Decree No.22 of 1972.”

Surely if there was a forfeiture of the property the subject matter o1 these pro­ceedings, it could only have been effected by an instrument made by the Head of the Federal Military Government. It is not enough to assert as was done in paragraph 3 of the affidavit of Osholowu that there was a forfeiture; the instru­ment of forfeiture must be exhibited. Without it, it would be wrong to hold there was a forfeiture, as claimed by the respondent in this case.” (Italics mine)

It is obvious from these quotations that the minds of the learned Justices of the Court of Appeal were occupied by the following considerations:­

1. That there were conflicts in the affidavits relied upon by the parties as to whether the land in dispute was forfeited to the Federal Military Government in accordance with the provisions of the 1970 Act as amended by the 1972 Act.
2. That in accordance with settled rule of law, the conflicts in the affidavits could only be resolved by oral evidence and no such evidence was ad­duced.
3. That if in fact there was forfeiture of the land in dispute, the forfeiture took place in 1974, that is after the 1970 Act as amended had been promulgated, and therefore that could only have been validly effected by an instrument of forfeiture made by the Head of the Federal Military Government.

The learned Justices of the Court of Appeal therefore allowed the appeal, set aside the decision of the High Court and remitted the case to the High Court for trial de novo before another Judge.

The appellant, once more being aggrieved, appealed to this court against the de­cision of the Court of Appeal. Two grounds of appeal were filed. They read:-

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 on the 9th day of May, 1984.

Particulars of Error

(a)     the respondent did not give any satisfactory reason why he was not represented by counsel on 19/4/84 and 9/5/84:

(b)     the attitude of the respondent all along both before and after the default judgment was delivered was such that no discretion should have been exercised in his favour:

(c)     even the learned triad Judge was not satisfied as to the reasons given for the absence of the respondent;

(d)     even if further affidavit evidence was introduced on the day the appellant moved for judgment there was no evidence that the respondent had no notice of it.

(e)     the respondent never sought to set aside the default judgment on the ground that further affidavits of which he had no notice were made use of, nor did the respondent file a notice to contend in the Court of Appeal that the decision of the High Court to set aside the default judgment be affirmed on the ground of the introduction of further affidavits.

(f)      the issue of the further affidavits ought not therefore to have been raised by the Court of Appeal, and even if the court had to (which is not conceded) the parties ought to have been given an opportunity to address on it.

2. The learned Justices of the Court of Appeal erred in law and in fact in sending the case back for retrial on the ground that there is conflict in the affidavits filed by both parties.

Particulars of Error

(a)     A court is only required to resolve the conflict in evidence where it cannot give a decision to the matter without deciding which version of the conflicting affidavits to accept.

(b)     In the case in hand, even on the face of the affidavit evidence of the respondent, the evidence could not have afforded a valid defence to the appellant’s action having regard to the majority decision of the Court of Appeal as to the meaning and effect of the provisions of Decree No. 58 of 1970 as amended by Decree No. 22 of 1972.”

Chief Williams, timed Senior Advocate, for the appellant, formulated 4 questions in the appellant’s brief of argument for our determination. But at the hearing of oral argument, learned Senior Advocate did not pursue the first ground of appeal in respect of which the first three questions for determination were postulated. The only question that remains for determination is question No. 4 which reads:-

‘Whether having regard to the decision of the Court of Appeal as to the true meaning and effect of Decree (sic Act) No. 58 of 1970 as amended by Decree (sic Act) No. 22 of 1972 there was any need to send the case back to the trial court to resolve the conflict in the affidavit evidence of the two parties?

Chief Williams submits that the rule that conflicts in affidavit evidence must be re-solved by calling oral evidence before deciding a case applied only where the resolution is necessary for the determination of the case. He argued that such resolution does not arise In this case because the Court of Appeal found as follows:-

(1)     There has to be a forfeiture of the relevant assets.

(2)     The only way the relevant assets in dispute in this case can be forfeited is by an instrument of forfeiture.

(3)     The respondent had to prove forfeiture and the only way to prove it is to produce, in evidence, the instrument of forfeiture.

(4)     Pursuant to the forfeiture the Inspector-General of Police could take pos-session of the relevant assets.

(5)     Subsequent to taking possession the Inspector-General of Police is to sell the relevant assets.

(6)     In taking possession of the relevant assets and selling them the Inspector-General of Police has to act in good faith.

(7)     The initial burden of proving good faith rests on the respondent though the legal burden is on the appellant.

(8)     Having regard to paragraphs 4 and 6 of the affidavit of Daniel Temiranren (supra) the respondent failed to establish the good faith as required by section 5 of the 1970 Act.

Chief Williams then submitted that there was no need for the Court of Appeal to remit the case to the High Court to resolve the conflict in evidence having regard to the above findings which the Court of Appeal had made.

Replying learned counsel for the respondent argued, in the respondent’s brief of argument, that the learned Justices of the Court of Appeal were right in remitting the case to the High Court for re-trial. As his reason for so arguing, he submitted that the Court of Appeal did not merely remit the case because of the conflict in the affidavit evidence adduced by the parties but to resolve the following controversial is-sues:-

(a)     Whether or not there was an instrument under the hand of the Head of the Federal Military Government forfeiting the property in dispute to the State. (b) What attempts were made by the Inspector-General Police to sell the property.

(c)     When the buildings on the land in dispute were developed so as to deter-mine what buildings formed part of the property when on 24th December, 1970 it was ordered to be sold by the Decree (Act).

(d)     When was the appellant dispossessed of the property by the Nigeria Police so as to determine whether it was held by the Police on 24th December, 1970 when the Decree (Act) came into force or whether it was property to which section 4 of the (1970) Decree (Act) (as amended) applied.

Learned counsel for the respondent argued further that the Court of Appeal has the power under section 16 of the Court of Appeal Act, No.43 of 1976 to make the remittal order. He cited in support of his contention Onyema Oke v. Amos Eke & 3 Ors. (1982) 12 S.C. 218 and Samuel Fadiora & Anor. v. Festus Gbadebo & Anor (1978) 3 S.C. 219.

Now section 4 subsection (1) of the Recovery of Public Property (No.2) Act No.58 of 1970 as inserted by the Recovery of Public Property (Amendment) Act, No.22 of 1972 reads:-

4 (1) Where the Head of the Federal Military Government is satisfied that there are relevant assets, other than those mentioned in the foregoing sections 2 and 3, he may by an instrument direct that the assets in question shall be forfeited to the State; and accordingly, section 8(4) of the Investigation of Assets (Public Officers and Other Persons) Decree, 1968 shall apply as if the reference therein to an order made by the appropriate authority were a direction of the Head of the Federal Military Government.”

Section 3 of the 1970 Act deals with the disposal of relevant assets held by banks. These, being liquid, by their nature, do not of course include land. Now reading sections 1, 2 and 3 of the 1970 Act together, it is clear that the “relevant-assets” that the 1970 Act was concerned with were assets which belonged to Captain Din (the appellant), Messrs Nitico and any other “person”, whether living or being a corporate or incorporate that stood criminal trial with the appellant in 1970. Some of such as-sets were of course held by the police at the time of the promulgation of the 1970 Act. Amongst these not held by the Nigeria Police were cash expected to be in the banks. Hence the provisions of sections 2 and 3 thereof. However, by 1972 when the 1972 Act was promulgated it was clear that there were other “relevant assets” which were not held by the Nigeria Police, but to which forfeiture was intended to apply. Section 4 subsection (1) therefore laid down the procedure by which such as-sets are to be forfeited to the State. It is by an instrument issued by the Head of the Federal Military Government.

Now by paragraph 3 of the affidavit sworn to arid relied upon by the appellant, which is quoted above, the appellant disclosed that he began to acquire the land in dispute in 1959 and that he remained on it undisturbed until 1974. The question is could it be true that the appellant had rightly been in possession of the land in dispute in 1974 in view of the provisions of section 1 of the 1970 Act, which provided that assets which were the property of the appellant or even purported to be his property were forfeited as at 24th December, 1970 when the Recovery of Public Property (No.2) Act, 1970 came into force? The appellant must be held bound by the admission in his affidavit. If he held part of the land in dispute since 1959 and the 1970 Act provides that he has forfeited it, what oral evidence will be needed before a court can hold that the land in dispute was forfeited? This is notwithstanding the fact that the affidavit and counter-affidavit relied upon by the respondent are in conflict with the affidavit in support of the appellant’s case.

It must be remembered that the key redress sought in the High Court by the appellant was:-

“A declaration that the purported forfeiture by the Federal (Military) Government of Nigeria of the Plaintiff’s (appellant’s) land and buildings situated at Vodni Estate, Mararaba-Pushit, near Pankshin in the Plateau State of Nigeria, and at the temporary site of the Federal Advanced Teachers College Pankshin is unconstitutional, illegal, null and void.”

This declaration can only be granted if the appellant had succeeded in showing that the land in dispute was not forfeited under the 1970 Act as at the 24th day of December, 1970 and not when the land in dispute became occupied by the Federal Advanced Teachers’ College in 1974. Any other remedy sought by the appellant is consequent upon the declaration being granted. Once the declaration was refused there would be no question whatsoever of granting any of the consequential remedies.

The Court of Appeal was therefore misdirected and acted in error when it based its decisions on the proposition canvassed by the appellant that because the Federal Advanced Teachers’ College came on to the land in dispute in 1974, the land in dispute became forfeited then to the Federal Military Government. This misconception led the Court of Appeal to hold that the burden was on the respondent to show that the Head of the Federal Military Government had issued an instrument of forfeiture in 1974 in accordance with the provisions of section 4 of the 1970 Act, which was inserted by the Recovery of Public Property (No. 2) Act, 1972 long after the forfeiture had taken place.

At the close of the addresses of learned counsel we decided suo motu to raise and hear further addresses on the following two issues:-

1. Can the appellants’ fundamental rights violated in 1970 or 1974 be enforced under the provisions of sections 40 and 42 of the Constitution of the Federal Republic of Nigeria, 1979?
2. ThechallengetothecompetenceoftheFederalMilitaryGovernmenttopro-mulgate the Recovery of Public Property (No. 2) Act, 58 of 1970 and the validity of the Act.

Both learned counsel filed supplementary briefs in respect of the questions raised. In his brief, Chief Williams pointed out that the issue relating to the procedure for enforcement of fundamental rights was not raised at the trial of the case in the High Court. Attempt was made by the respondent to raise it in the Court of Appeal, this was opposed by the appellant and the Court of Appeal refused the respondent leave since the point was not raised in the High Court. The brief argues further that unless the answer to a question not decided in courts below is so clear that any argument to the contrary is unworthy of consideration, it is inappropriate for such question to be raised and decided in a Court of Appeal, more particularly in a court of last resort. Learned counsel contended that the efficacy of our system of the hierarchy of courts will be undermined if a court exercising appellate jurisdiction does not have the benefit of the decision of the court immediately below it. This submission is based on the decision in North Staffordshire Railway Co. v. Edge (1920) A. C. 254 at p.263 per Lord Birkenhead L.C., United Marketing Co. v. Kara (1963) 1 W.L.R. 525 at p.524 per Lord Hodson, Djukpan v. Oravuyovbe (1967) 1 All N.L.R. 134 at pp. 137-138 and Okoye v. Dumez (1985) 1 N.W.L.R. 783 at p.794 H. per Karibi-Whyte, J.S.C. Chief Williams submitted that there is an exception to the rule which was laid down in United Marketing Co. v. Kara (supra) at p.524 per Lord Hodson and Dullewe v. Dul-lewe (1969) 2 A.C. 313 at p.325 per Lord Hodson, which is that the answer to the question raised may be so clear and so well settled that any contrary argument is wholly untenable. Learned counsel for the appellant then submitted that the point raised by question No.1 does not come within the exception and that this is demonstrated by the fact that we do not treat it as one which is too plain for argument, since we have invited argument on it. Furthermore, learned counsel argued that the point in question raises a mere procedural irregularity and as such this Court, as a Court of last resort, ought not to entertain it. He relies in support on the Privy Council decision in Johnson v. Aderemi 13 W.A.C.A. 297 at pp.297-298 per Lord Raddiffs, and Davis v. Galmoye 39 Ch.D. 322. Learned counsel submitted further that even if (which is denied) there is any irregularity in making use of the procedure prescribed under the Constitution of the Federal Republic of Nigeria, 1979 to commence the proceedings, such irregularity is insufficient to render the proceedings a nullity by virtue of the provisions of Order 2 rule 1 of the Rules of Supreme Court in England which are applicable to Plateau State by virtue of section 116 subsection (3) of the High Court Law of the State and the decision of this Court in Falobi v. Falobi (1976) N.M.L.R. 169 at p.177. He argued further that if the irregularity being considered is in respect of the appellant making use of the form prescribed by the Rules made under the 1979 Constitution, then such irregularity does not affect the jurisdiction of the High Court to entertain the proceedings or make the order which the appellant sought. The proceedings, it is argued further, relates to infringement of fundamental right as spelt out under section 42 of the 1979 Constitution, which is identical with section 32 of the 1963 Constitution. Learned counsel submitted that the right sought to be enforced is set out in section 31 of the 1963 Constitution and no rules had been prescribed under the 1963 Constitution. Therefore failure to make the rules cannot deprive the High Court of the jurisdiction conferred upon it by the 1963 Constitution and the High Court could be approached in accordance with the ordinary procedure of the High Court -Akande v. Araoye (1968) 1 All N.L.R. 214 at pp.217 – 218; Akun-We v. Attorney-General of Anambra State (1977) 5 S.C. 161 and Re Squire’s Settlement (1946) 115 W Ch. 90. Moreover the error in following the procedure laid down under the 1979 Constitution cannot be material because the authority to bring the proceedings emanates from a valid authority – Forfie v. Seffar (1958) A.C. 59 at p.67 and Falobi v. Falobi (1976) N.M.L. R. 1967 at p.177.

With due respect, the argument of learned counsel for the appellant begs the issue. It is trite law that generally an Appeal Court would not suo motu raise issues which the parties do not raise; however in exceptional circumstances the court has a discretion to raise such issues, particularly where the issue involved is fundamental in nature – see Kuti v. Jibowu (1972) 6 SC 147, Odiase v. Agho (1972) 1 All N.L.R. (Pt.1) 170 Kuti v. Balogun (1978) 1 SC.53 and Olusanya v. Olusanya (1983) 1 S.C.N.L.R. 134 at p.139. In the present case the cause of action arose in 1970 or in 1974 as the appellant would prefer it. The appellant did not challenge the forfeiture at that time but waited for nearly 13 or 9 years, as the case may be, to sue on the 29th day of September, 1983. Now the action had been brought under the provisions of Fundamental Rights (Enforcement Procedure) Rules, 1980 which prescribed the practice and procedure to be followed in respect of the contravention of any of the fundamental rights provided in Chapter IV of the 1979 Constitution. The appellant is not challenging the infringement of his fundamental rights under the 1979 Constitution. Apart from this irregularity there is the vital point that the substantive claim is for a declaration that an action taken, that is for the forfeiture of the land in dispute, in 1970 or 1974 is unconstitutional, null and void. The forfeiture was made under the Recovery of Public Property (No.2) Act, 1970 which is an existing law under the 1979 Constitution. Section 6 of the 1979 Constitution, which gave to State High Courts general jurisdiction, ousted the power of the High courts to entertain any action in the nature of the present case. The ouster provisions of the Section read as follows:-

6. (6) The judicial powers vested in accordance with the foregoing provisions of this section

(d)     shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such laws.”

Surely, this is a very important point which this court cannot overlook and which the lower courts ought to have overlooked in the determination of the present case. The issue of jurisdiction is indeed fundamental.

The provisions of section 6 subsection 6(d) of the 1979 Constitution have since been interpreted by this court in the case of Uwaifo v. Attorney-General, Bendel State (1982) 7 S.C. 124; (1983) 4 N.C.L.R. 1 in which Idigbe, J.S.C. observed as follows on pp. 213 and 35 thereof respectively:-

“It seems to me that, while the (1979) Constitution empowers the courts to in-quire into the validity of any existing law, it clearly intends that the courts should not inquire into proceedings which seek to determine issues or questions as to the competence of any authority or person (i.e. the legal capacity, power, legal qualification or jurisdiction of any authority or person) to make any existing law promulgated between 15th January, 1966 and lst October, 1979; in other words, the courts are precluded from inquiring into the validity of any such laws. Indubitably, the provisions of section 6(6)(d) aforesaid are aimed at proceedings which seek to detract form the binding force and or authority of any unrepealed law made by the military regime between 15th January, 1966 and 1st October, 1979 when the new Constitution came into force.” (Italics mine).

It follows therefore that whether going by the procedure followed by the appellant in instituting the action or the nature of the claims being made by the appellant in the action, the case which he filed in the High Court of Plateau State cannot be entertained, as that court as well as any other Superior Court of Record in this country, has no jurisdiction by virtue of the provisions of section 6 subsection (6)(d) of the 1979 Constitution.

With regard to issue No.2, learned Senior Advocate contends that the appellant is not challenging the validity of the 1970 Act as amended by the 1972 Act nor is it the appellant’s contention that the Federal Military Government had no competence to make the Acts. He therefore submits that the case for the appellant is that the 1970 and 1972 Acts are valid but that the authorities failed to comply with the provisions. Here again the appellant is being ingenious. By his claim, he was asking the High Court to declare the forfeiture of the land in dispute to the Federal Military Government as unconstitutional, null and void. As the forfeiture was effected in 1970 by Act No. 58 of 1970 is the claim of the declaration not an indirect challenge of the validity of the 1970 Act and the competence of the Federal Military Government to establish a Federal Advanced Teachers’ College on the land in dispute? The answer to this question is in the affirmative and therefore falls well within the ambit of the provisions of section 6 subsection (6)(d) of the 1979 Constitution.

In view of the aforesaid, I hold that the High Court of Plateau State had no jurisdiction to entertain the appellant’s claim. The decision of the Court of Appeal is there-fore set aside. The appeal in this Court fails and it is hereby dismissed with N600.00 costs to the respondent.

OBASEKI, Ag. C.J.N.: I have had the advantage of reading in draft before now the judgment just delivered by my learned brother Uwais, J.S.C. and I agree that the appeal be dismissed.

The genesis of this case goes back to 1970 and it is clear from the facts disclosed in the proceedings in the court below that the cause of action really arose in 1970 although the appellant’s complaint is against the action the Federal Military Government took in 1974. The action before the court was however not filed till 1983 and was instituted under the Fundamental Rights provision set out in sections 40 and 42 of the Constitution. This is also clearly stated in ground IX upon which the reliefs sought from the court were based which ground reads, as set out in the statement filed along with the ex-parte motion and the affidavit in support, as follows:-

“In the premises the right guaranteed to the plaintiff by sections 40 and 42 of the Constitution of the Federal Republic of Nigeria 1979 has been and is being contravened.”

What is this right guaranteed by section 40 of the Constitution of the Federal Re-public of Nigeria 1979? It is briefly that no movable property or any interest in immovable property shall be taken possession of without prompt payment of compensation. More expressly, section 40(1) of the Constitution of the Federal Re-public of Nigeria reads:-

“No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things:

(a)     requires the prompt payment of compensation therefor, and

(b)     gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria.”

This section came into force on 1st October, 1979 long after the Nigeria Police took over the property (in 1970) and also five years after the Federal Advanced Teachers’ College entered into possession. The action was taken 13 years after the Inspector- General of Police took over the property in question.

The reliefs claimed as set out in the originating summons filed along with the motion reads:-

“1.     A declaration that the purported forfeiture by the Federal Government of Nigeria of the plaintiff’s land and buildings situate at Vodni Estate Marara-ba Pushit, near Pankshin in the Plateau State of Nigeria and at the temporary site of the Federal Advanced Teachers’ College, Pankshin is unconstitutional, illegal, null and void (Italics mine)

2. N6,019,631.00k being special damages comprising

(i)      mesne profits on the above estate for 9 years i.e. from January, 1974 to December, 1983;

(ii)     annual Bank charges on capital outlay for 7 years at 11% _ N3,149,631.00k;

(iii)    estimated cost of repairs and renovation N350,000.00;

3. And/or in the alternative, an inquiry into the amount of compensation due to the plaintiff from the entry of the defendant and his agents into the plain-tiff’s property at Vodni Estate, Mararaba Pushit in 1974 to date and from January, 1984 till judgment;
4. An order of injunction restraining all officers and servants or agents of the Federal Government of Nigeria from continuing unlawfully to use the afore-said land and buildings of the plaintiff at Mararaba Pushit, Plateau State of Nigeria without paying rents or compensation therefor;
5. Such further or other orders as the court may deem appropriate.

The emphasis on a breach of the fundamental right under section 40 of the Constitution of the Federal Republic of Nigeria 1979 ran through the length and breadth of the motion ex-parte which was for an order:

“1.     pursuant to Order 1 Rule 2(2) of the Fundamental Rights (Enforcement Procedure) Rules 1979 for leave to apply for an order for the enforcement of the plaintiff’s fundamental rights;

2. pursuant to sections 40 and 42 of the Constitution of the Federal Republic of Nigeria 1979 an order directing and/or determining the amount of compensation payable to the plaintiff by the defendant from 1974 to date for the occupation of his property at Mararaba Pushit near Pankshin in the Plateau State of Nigeria;
3. such further or other orders as this Honourable Court may deem fit to make.”

Leave to apply for order to secure the enforcement of the applicant’s right was granted on 5th December, 1983. After service of the notice of motion on the defend-ant/respondent and on default of appearance by the respondent the applicant obtained the judgment on the 9th day of May, 1984.

Subsequently, by motion dated the 1st day of June, 1984 the respondent moved the High Court of Plateau State to set aside the judgment. The judgment was set aside and the case was relisted for hearing on the 16th day of July, 1984. When the parties appeared before the High Court on the 20th day of September, 1984, the respondent, in limine raised the plea as to the jurisdiction of the High Court to entertain the suit and matter by virtue of the provision of the Recovery of Public Property Decree 1970 No.58 section 4 as amended by (Decree No.22 of 1972 section 6) Recovery of Public Property (Amendment) Decree No.22 of 1972 section 6) and Bronik Motors Ltd. & Anor. v. Wema Bank Ltd. (1983) 6 S.C. 158 at 296.

Counsel to the respondent submitted that the Federal Military Government for-feited the property of the plaintiff/applicant and so the rights he had have been extinguished by Decree No.58 of 1970.

After hearing counsel on the plea to jurisdiction, the High Court upheld the plea and dismissed the suit, matter or application for being incompetent to entertain the application.

The plaintiff appealed to the Court of Appeal and succeeded in part. He appealed against the order setting aside the judgment and relisting the application for hearing. He also appealed against the dismissal on the ground of want of jurisdiction.

The appeal against the order setting aside of the judgment and relisting the application for hearing was dismissed but the appeal against the order of dismissal for want of jurisdiction was allowed and the case remitted for trial de novo on the ground that the determination of that issue must await the hearing of oral evidence.

Against this decision, the plaintiff/appellant has appealed to this Court seeking as relief, an order of this Court setting aside the decision of the Court of Appeal ordering a retrial and entering judgment for the plaintiff. The grounds of appeal were two-fold. Ground 1 without the particulars reads:

“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 on the 9th day of May, 1984.”

It is heartening to observe that the learned Senior Advocate who appeared for the appellant at the oral hearing did not proceed with this ground and wisely, in my view, abandoned it.

The second ground of appeal which was argued fully both in the brief and at the oral hearing reads:-

“The learned Justices of the Court of Appeal erred in law and in fact in sending the case back for retrial on the ground that there is conflict in the affidavits filed by both parties.

Particulars of Error

(a)     A court is required to resolve the conflict in evidence where it cannot give a decision in the matter without deciding which version of the conflicting affidavits to accept;

(b)     In the case in hand, even on the face of the affidavit evidence of the respondent, the evidence could not have afforded a valid defence to the appellant’s action having regard to the majority decision in the Court of Appeal as to the meaning and effect of the provisions of Decree No.58 of 1970 as amended by Decree No.22 of 1972.

After hearing counsel to the parties, it became apparent to us that in the interest of justice, counsel should be given an opportunity of addressing this Court on the following two issues:-

(1)     the plaintiff’s/appellant’s fundamental rights violated in 1970 and 1974 which the appellant wants enforced under the provisions of sections 40 and 42 of the Constitution of the Federal Republic of Nigeria 1979;

(2)     the challenge to the competence of the Federal Military Government to promulgate Decree No. 58 of 1970 and the validity of the Decree.

Having regard to the genesis and history of the case together with the constitutional history and development of this country and the provisions of Decree No.58 of 1970, I decided that it will be in the interest of justice to hear counsel to the par-ties on the issues before the consideration of the judgment in the appeal. Leave was granted to the parties to file further briefs dealing with the issues raised and counsel did seize the opportunity with both hands to file commendable briefs. Appellant’s counsel concentrated in his brief, more on arguments in favour of not raising and basing our judgment on the questions than arguing the issue. But at the oral hearing, he was most helpful. The respondent’s counsel skirted round the questions and appeared to be unable to read the mind of the court. Since the appellant has introduced the concept of forfeiture and the concept of acquisition in his application and claims before the High Court, the two concepts deserve a full analysis and interpretation. I think they are mutually exclusive. While an acquisition under our law and Constitution attract compensation, forfeiture does not. Indeed, forfeiture connotes seizure of property for a breach of code of conduct or infraction of the law.

The questions for determination in this appeal formulated by the appellant in his original brief are fourfold. They read:

(3) (4)

whether there was evidence that the respondent was not served with the further affidavit filed on the 16th day of April, 1984;

If question one is in the affirmative, whether this could be a ground for the Court of Appeal to refuse to disturb the decision of the trial court setting aside the default judgment having regard to the circumstances of the case; whether the material before the learned trial Judge was such as ought to have entitled him to set aside the default judgment;

whether having regard to the decision of the Court of Appeal as to the true meaning and effect of Decree No.58 of 1970 as amended by Decree No. 22 of 1972 there was any need to send the case back to the trial court to re-solve the conflict in the affidavit evidence.”

As indicated earlier in this judgment, the 1st, 2nd and 3rd questions were abandoned and only the 4th question for determination was dealt with by both counsel at the first hearing of the appeal. I will only therefore deal with the 4th question together with the two questions raised by the court. For the purpose of clarity and emphasis, the two questions raised by the court are:

(1)     whetherthefundamentalrightsoftheappellantundersection40oftheCon-stitution of the Federal Republic of Nigeria 1979 was violated by the respondent in 1970 or 1974 to require enforcement under the provision of section 42;

(2)     whether this action is not a challenge to the competence of the Federal Military Government to promulgate Decree No.58 of 1970 and whether it is not a challenge to the validity of that Decree.

The competence of this court to raise these questions has not been challenged. There are a number of judicial authorities in support of the exercise of the power to raise points not raised by the parties before it either in the court below or in the grounds before the court if the justice of the matter demands it. The only caveat is that no decision should be founded on the points so raised unless the parties and or their counsel are given opportunity to address the court on them. I only need to refer to Odiase v. Agho (1972) 1 All N.L.R. (Pt.1) 170 at 176 and Mogaji v. Cadbury Nigeria Ltd. (1985) 2 N.W.LR. (Pt. 7) 393; Awote v. Owodunni (1986) 5 N.W.LR. (Pt.46) 941 S.C. Orogan v. Soremekun (1986) 5 N.W.L.R. (Pt.44) 688.

Where the interest of justice demands it, the Supreme Court will raise new points suo motu at the hearing of an appeal. The importance of these two questions lies in the fact that they involve the question of competence and jurisdiction of the High Court of Plateau State to entertain the action. The issue of jurisdiction can be raised at any stage of the proceedings whether in the court of first instance or at the Court of Appeal. A.O. Obikoya v. Registrar of Companies & Anor. 4 SC. 31, 34-35.

The main argument of learned counsel for the appellant on the only ground argued by him is that there is no instrument of forfeiture in existence forfeiting the property to the Federal Government.

On the two questions raised by the court, learned counsel for the appellant in his written brief submitted:-

‘That the point relating to the procedure for enforcement of fundamental rights was not raised at the trial and the attempt to raise it in the Court of Appeal was opposed and the court below refused leave to the respondent so to raise it.”

He then referred to the ruling of Akanbi, J.C.A. (concurred in by the other two Justices of the Court of Appeal) dismissing the oral application to raise it. Learned counsel then submitted that unless the answer to a question not decided in the courts below is so clear that any argument to the contrary is unworthy of consideration, it is inappropriate for such question to be raised and decided in the Court of Appeal more particularly in a court of last resort. He then gave the reason for this as the fact that our judicial system is based on a hierarchy of courts designed to ensure that matters in controversy between the parties are tried and examined at first instance and thereafter examined or reviewed on appeal or on further appeal as the case may require up to the highest court in the land. Learned counsel pointed out with emphasis that the Supreme Court is at the apex of the hierarchy and the Court of Appeal ranks next to it. The efficacy of that system, he contends, will be undermined if a court exercising appellate jurisdiction does not have the benefit of the decision (with reasons) of the court immediately below ft in the hierarchy. I am in entire agreement with the above argument. The immense advantage of opinions expressed by the court below on any question before the appeal court cannot be under-estimated. They are reference points in the progressive search for justice in any case or matter. Learned counsel referred to the dictum of Lord Birkenhead, L.C. in North Staffordshire Raihvay Co. v. Edge (1920) A.C. 254 at 263 and the dictum of Lord Hodson in United Marketing Co. v. Kara (1963) 1 W.L.R. 523 at 524. The issues came before the House of Lords in England and constituted solid foreign authorities on the issue. This view is not without support from our Nigerian judicial authorities. I refer to the case of Djukpan v. Orovuyovbe (1967) 1 All N.L.R. 134 at 137-138 a decision of the Supreme Court. The more recent authority on the matter is Okoye v. Dumez Nig. Ltd. (1985) 1 N.W.L.R. 783 at 784 where Karibi-Whyte, J.S.C. forcefully commented that:

“None of the Justices of the Court of Appeal referred to the issue in their judgments. Since we have not the benefit of the opinion of the court below on the issue, it is inappropriate for this court to consider rt. See United Marketing Co. v. Kara (1963) W.L.R. 523; Ahamath v. Umma (1931) A.C. 799.”

However, learned counsel for the appellant quite appropriately drew this Court’s attention to the Exception to the Rule. It is that the answer to the question raised may be so dear and so well settled that any contrary argument is wholly untenable. The question as to the nature and existence of the fundamental right raised is not one of procedure. There must be a guaranteed fundamental right by the Constitution of the Federal Republic of Nigeria 1979 before the issue of procedure for enforcement arises.

I agree with the dictum of Lord Hudson in Dullewe v. Dullewe (1969) 2 A.C. 313 at 325 that:

“Even where a bare question of law only is involved, their Lordships are seldom ready to undertake decisions which may be of the highest importance without having received any assistance at all from the Judges in the courts below. In this case as in United Marketing Co. v. Kara (1963) 1 W.L.R. 523, the alternative sub-mission cannot be said to be clearly right that the contrary view is unarguable.”

The assumption of counsel that the invitation to counsel proves that the points raised are not too plain for argument cannot be correct having regard to the record of proceedings particularly:

(1)     The ex-parte motion dated 29th September, 1983

(2)     The affidavit of Joseph Mangtup Din sworn to at the Registry of the High Court of Plateau State on the 29th September, 1983;

(3)     The statement filed pursuant to Order 1 Rule 2(3) of the Fundamental Rights (Enforcement Procedure) Rules 1979 particularly paragraph 3(iii) which reads:

‘The land and buildings which form the subject matter of this action are situate at Mararaba-Pushit in Mangu Local Government Area, 20 kilometers from Pankshin on the Pankshin- Shendam-Jos Road North of Jos Township in Plateau State of Nigeria, and is more particularly delineated in the site plans attached to the Certificate of Occupancy Nos. 944/82 and 945/82 dated 30th November, 1982 issued to the plaintiff by the Mangu Local Government Council, filed herewith.”

(4)     The originating summons particularly claims 1 and 4 which read:-

(. A declaration that the purported forfeiture by the Federal Government of Nigeria of the plaintiff’s land and buildings situate at Vodni Estate, Mararaba Pushit, near Pankshin in the Plateau State of Nigeria, and at the temporary site of the Federal Advanced Teachers College, Pankshin, is unconstitutional, illegal, null and void.

4. And/or in the alternative, an inquiry into the amount of compensation due to the plaintiff from the entry of the defendant and his agents into the plaintiff’s property at Vodni Estate Mararaba, Pushit in 1974 to date.

If the grounds on which the reliefs are sought is the certificates of occupancy Nos.944/82 and 945/82 dated 30th November, 1982 issued to the plaintiff by the Mangu Local Government Council the right did not exist in 1974 when the Federal Advanced Teachers’ College, Pankshin took possession. If it was a forfeiture that was carried out by the Federal Military Government, the fundamental right guaranteed by section 40 of the Constitution of the Federal Republic 1979 did not exist to warrant invoking the powers of the court under section 42 of the Constitution of the Federal Republic to protect the guaranteed right.

Paragraph 8(j) of the affidavit of Joseph Mangtup Din (the appellant) sworn on 29th September, 1983 shows that he was informed that the case of Mararaba-Vodni Estate was a “military forfeiture” legally made by letter reference No.58524/IV/859 dated 26th October, 1982 from the office of the Secretary to the Government of the Federation, Executive Office of the President, Tafawa Balewa Square, Lagos, ad-dressed to the appellant declaring that the case of Mararaba-Vodni Estate was a “military forfeiture” legally made and that the President was not disposed to re-open the matter.

There is the counter-affidavit to the originating summons sworn by Michael Ola-kunle Osholowu (at pp. 20 and 21 of the record) sworn on the 31st May, 1984 declaring that the property was forfeited under the Recovery of Public Property Decree No.58 of 1970 as amended by Decree No.22 of 1972. See paragraph 3. Finally, there is the affidavit of Daniel Temisanren sworn on 6th day of November, 1984 deposing to the fact:

“ 1.    That the assets were taken custody of by the Nigeria Police, Jos in 1970;

2. That in 1974 the Inspector-General of Police gave the property tothe Federal Ministry of Education for temporary use;
3. That the appellant’s rights in the property were extinguished by the Recovery of Public Property Decree 1970.

This leads me to an examination of the Recovery of Public Property Decree, 1970 No. 58 as amended by Decree No.22 of 1972. If the Decree forfeited the assets of the appellant, the claim that the forfeiture be declared unconstitutional, null and void is a direct challenge to the validity of the Decree and the competence of the Federal Military Government to promulgate the Decree. The Court cannot and has no judicial powers by virtue of section 6(6) (d) of the Constitution of the Federal Republic of Nigeria 1979 to decide the issue. This constitutional provision has received judicial interpretation in the case of Uwaifo v. Attorney-General of Bendel State (1982) 7 S.C. 124; and Wilson v. Attorney-General of Bendel State & 2 Ors. (1985) 1 N. W. L. R. (Pt.4) p.572. Turning to Decree No.58 of 1970 titled Recovery of Public Property (No.2) De-cree 1970, I find sections 1 and 2 pertinent and relevant to these proceedings. The Decree deals with the assets of (1) the appellant, a person known or formerly known as Captain Din and (2) a company known as Nitico. I will take section 2 first. It reads:-

“Where any relevant assets are held by the Nigeria Police, it shall be the duty of the Inspector-General of the Nigeria Police to cause those assets to be sold and to cause the proceeds to be paid into the Consolidated Revenue Fund of the Federation.”

Section 1 then went on to define relevant assets as follows:-

“Relevant assets for the purpose of this Decree are assets which are or purport to be the property of –

(a)     a person known or formerly known as Captain Din, or (b) a company known as Nitico, or

(c)     any other person or body corporate or incorporate accused with the said Captain Din in criminal proceedings which terminated in Lagos State of Nigeria in the year 1970.”

The Decree was signed by the Head of the Federal Military Government, Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria on the 24th day of December, 1970 and came into force on that day. There is uncontradicted affidavit evidence that the police held the property, the subject matter of this appeal in 1970 and that the Federal Advanced Teachers’ College moved in with the per-mission of the Inspector-General of the Police in 1974.

What is the meaning of the provisions of section 2 of the Decree? It can only mean that the relevant asset is forfeited to the Federal Military Government and that the asset be sold and the money paid to the coffers of the Federal Military Government. What is the meaning of Consolidated Revenue Fund? In the Constitution of the Federation 1963 No. 20 which was in operation in 1970, section 129(1) provided for the establishment of the Consolidated Revenue Fund. It reads:-

“All revenues or other moneys raised or received by the Federation (not being revenues or other moneys payable under this Constitution or any Act of Parliament or Decree into some other public fund of the Federation established for a specific purpose) shall be paid into and form one Consolidated Revenue Fund”.

The fact that the asset was ordered to be converted into cash and paid into the Consolidated Revenue Fund ought to have dispelled any lingering doubt as to the completeness of the forfeiture. The fact that the property has not been sold till today but is being used by the Federal Ministry of Education does not detract from the completeness and effectiveness of the forfeiture.

The learned counsel for the appellant and the learned Justices of the Court of Appeal seemed to have laid undue emphasis on section 4 of the Decree No.58 of 1970 as amended by Decree No.22 of 1972. The section reads:

“Where the Head of the Federal Military Government is satisfied that there are relevant assets, other than those mentioned in the foregoing sections 2 and 3, he may by instrument direct that the assets in question shall be forfeited to the state and accordingly section 8(4) of the Investigation of Assets (Public Officers and other Persons) Decree 1968 shall apply as if the reference therein to an order made by the appropriate authority were a direction of the Head of the Federal Military Government. Any assets forfeited to the State by virtue of the foregoing provision shall be sold or otherwise disposed of by the Inspector-General of Police and the proceeds of sale of such disposal shall be paid or caused to be paid by him to the Consolidated Revenue Fund of the Federation and where it is required by law that the eventual transfer of the interest in or title to such as-sets shall be registered in any part of the Federation it shall be sufficient for the purposes of this section if a copy of the instrument containing the direction is served on the registering authority who shall, on the receipt of the copy there-of, register such interest or title in the name of the person to whom the assets are sold or, as the case may be, in terms of the disposal of the assets by the Inspector-General of Police.”

The impression that one gets from the provisions of this section added to Decree No.58 of 1970 by Decree No.22 of 1972 is that the Federal Military Government was out to forfeit all the assets of the appellant wherever they may be found.

The assets in the hands of the Inspector-General of Police in 1970 do not require an instrument of the Head of the Federal Military Government to forfeit them to the State. The Decree No.58 of 1970 itself has effected that forfeiture. If there are other properties of the appellant left and the Head of the Federal Military Government is satisfied that they are his property. Section 4 empowers him to direct the forfeiture of the property to the State.

In view of the affidavit evidence before the court, both by the appellant and the respondent that the case was one of military forfeiture under the provisions of Decree No.58 of 1970, the claim that the forfeiture was unconstitutional, illegal, null and void is a challenge to the competence of the Federal Military Government to promulgate Decree No. 58 of 1970.

The appeal must therefore fail and is hereby dismissed with N500.00 costs to the respondent. The High court is hereby ordered to strike out the suit.

KARIBI-WHYTE, J.S.C.: I have had the privilege of reading before now the judgment of my learned brother Uwais, J.S.C. in the appeal. I agree entirely with his reasoning and conclusion therein that this appeal be dismissed.

The judgment of my learned brother Uwais, J.S.C. has dealt in considerable detail with the facts and exhaustively with the law governing this appeal, and I consider it unnecessary to add to this consummate treatment. I need only say in conclusion that on the 29th September, 1983 the laws i.e. the Recovery of Public Property No.58 of 1970 and the Decree No.22 of 1972 amending it under which the rights sought to be enforced were forfeited were still in force and remained existing laws after the coming into force of the 1979 Constitution. This is because neither of the aforementioned Decrees forfeiting the property of the appellant and in respect of which forfeiture this action has been brought was repealed under Decree No. 105 of 1979, which by repeal and modification of existing laws brought the law in conformity with the provisions of the Constitution of 1979. In addition this is a matter governed by section 6(6)(d) of the 1979 Constitution in respect of which the judicial powers of the Court has been expressly excluded by the 1979 Constitution. See Uwaifo v. Attor-ney-General, Bendel State (1983) 4 N.C.L.R. 1.

Appellant therefore had no right extant which could be enforced under the pro-visions of section 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. The appellant therefore had no right which he could enforce by action. The Court also is precluded from exercising jurisdiction in such matters. The action is therefore totally lacking in substance and merit and ought to have been struck out in limine by the trial court. Accordingly, adopting the further reasons of my learned brother Uwais, J.S.C. I hereby dismiss this appeal which is lacking in merit, and strike out the plaintiff’s claim. The appellant shall pay the costs of this appeal which I assess at N500.00

NNAEMEKA-AGU, J.S.C.: After the conclusion of arguments by both sides in accordance with their briefs of argument, this Court adjourned the appeal for judgment. During the consideration of our judgment in the appeal, we came across certain issues of fundamental character. It therefore became necessary for us to recall counsel on both sides for further address on those issues. As the facts of the case have been fully stated in the lead judgment of my learned brother, Uwais, J.S.C., I shall limit my statement on the facts to those that are relevant to these new issues.

The relevant facts which raise these questions are contained in the affidavits on record as well as the statement of the appellant pursuant to Order 1 rule 2(3) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. It is enough to refer to parts of the affidavit in support of the ex-parte motion for leave to apply for the order, the counter affidavit of Michael Osholowu for the respondents and the further and better affidavit of Daniel Temisanren again on their behalf.

Now in paragraph 3 of the affidavit in support of the ex- parte application for leave, the appellant himself deposed as follows:-

That I began acquiring the 14 acres (approximately 7.1205 hectares) which comprise the land in dispute sometime in 1959 and remained in undisturbed possession thereon by inter alia, putting up various buildings, on parts thereof, until sometime in January 1974 when I was ousted of possession by officers, servants, and agents of the Federal Ministry of Education and of the Federal Advanced Teachers’ College, Pankshin, who went unto the premises without my consent, and in spite of several demands, have to date, refused or neglected to pay rents or any compensation whatsoever for their occupation and use of my property.”

Also in paragraphs 3, 4, 5 and 6 of the affidavit of Michael Osholowo dated 31st May, 1984, he deposed as follows:-

“3.     That the property of the applicant, the subject matter of this suit was forfeited to the Federal Military Government in 1970, and I am informed by Mr. E.O. Oyewo State Counsel for the respondent whom I verily believe that the property was forfeited under the Recovery of Public Property Decree No.58 of 1970, as amended by Decree No.22 of 1972.

4. That the said Mr. E.O. Oyewo further informed me and I verily believe him that this Honourable Court has no jurisdiction to entertain this suit by reasons of the Provisions of the Recovery of Public Property Decree No. 22 of 1972 particularly Section 5 of the said Decree.
5. I am further informed by Mr. E.O. Oyewo whom I verily believe that by virtue of the same Decree this action of the applicant is void and should be so declared.
6. That Mr. E.O. Oyewo informed me and I verily believe him that by virtue of the provisions of the Constitution of the Federal Republic of Nigeria 1979 and also provisions of the Recovery of Public Property (No.2) Decree No.58 of 1970, as amended by Decree No.22 of 1972, this action is not maintain-able and should be dismissed.”

I may also refer to part of the further and better affidavit of Daniel Temisanren dated 6th November, 1984. In paragraphs 3, 4 and 5 he deposed as follows:-

“3.     That the property of the applicant, the subject matter of this suit and other liquid and concrete assets were in 1970 taken custody of by the Nigerian Police, Jos pursuant to the Recovery of Public Property Decree No.58 of 1970.

4. That in 1974, due to the inability of the Nigerian Police to perform a sale of the property, the subject matter of the sale, the Inspector-General of Police, Alhaji Kam Salem gave the property to the Federal Ministry of Education for temporary use.
5. That the Nigerian Police Force are by virtue of the Recovery of Public Property Decree No. 58 of 1970 as amended by No.22 of 1972 vested with the rights in the property.”

Thus, shone of all conflicting facts, it is clear that it was by Decree, to wit: Number 58 of 1970 as amended by Number 22 of 972, that the appellant’s properties were forfeited to the Federal Military Government; that from the onset, it was being contended by the respondents that by the joint effect of the provisions of these two Decrees and those of the Constitution of the Federal Republic of Nigeria, 1979, the Court had no jurisdiction to entertain the suit and that the action was void. I may also mention that whereas the appellant contended that he was, and remained, in possession till 1974, the respondent contended that his rights over the property in question were extinguished in 1970. The further and better counter-affidavit of Daniel Temisanren sworn to on the 6th day of November, 1984, while asserting the extinction of the appellant’s rights in 1970, explained that the police took custody of the property in 1970 but that it was when, in 1974, the Nigeria Police was unable to sell the property in question that they gave it to the Federal Ministry of Education.

It was from the above state of facts that we had to recall counsel on both sides to satisfy us as to whether:

(a)     there was any extant right of the appellant over the property which he could sue for when he commenced this action on the 29th of September, 1983; and

(b)     if there was such a right, being a 1970 or 1974 right, he could sue for it by way of the Fundamental Rights (Enforcement Procedure) Rules, 1979, which came into force on the 1st January, 1980.

I must say that, with respects, I do not share the view of the learned Senior Advocate for the appellant that, because the Court of Appeal refused leave to argue the 2nd of these points’ it should not be entertained by this court. His argument is that at best we should remit the matter to the courts below in order to have the benefits of their own opinions. In his submission, if we decide it, we shall be playing the role of a court of first instance. He cited a number of decided cases and submitted that to decide it in this court will be tantamount to abdicating the appellate jurisdiction of the court and acting as if the court were one of the first instance.

In my opinion, the learned Senior Advocate appears to have mixed up two different sets of circumstances, namely (1) where this court is being requested by one of the parties to give it leave to argue a point which was not raised in the courts below and (ii) where the court, suo motu, raises a point which it considers fundamental to the entire proceedings. It appears to me that in considering whether or not to grant the request in the first group of cases, supra, the court should be guided by the principles which have been clearly established by several cases, including Shonekan v. Smith (1964) 1 All N.L.R. 168, p.173; Akpene v. Barclays Bank (1977) 1 S.C. 47. Those matters for consideration include whether further evidence could have been adduced to meet the point which was raised earlier, whether the point is substantial; and whether it is such that the opinion of the courts below would have assisted this court to reach a correct decision.

In the second class of cases, the Court is guided mainly by the interests of justice, as it is acting on its own motion and not at the request of either party. Where it is of the view that justice demands that it should hear argument on a point which goes to the root of a case, it is guided by the provision of Order 8 rule 2(6) which runs as follows:

“(6)   Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant: Provided that the Court shall not, if it allows the appeal, rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.”

I believe that the instant case falls rather with the second class of cases. There can be no doubt that the first question above is one of jurisdiction and goes to the root of the whole case. The second question is one of competence of the action. In either case, all that this court needed to do was to invite the parties or their counsel to address it on the points. This it has done.

The straight answer of the learned Senior Advocate for the appellant to the above questions was that the property in question was not part of the property of the appellant forfeited by Decree No.58 of 1970 but would, if at all, be one of “other relevant assets” intended to be forfeited under section 4 of Decree No.22 of 1972; that such other relevant assets could only be forfeited, in the ipsissimis verbis of section 4, “by an instrument’. So, as there was no instrument of forfeiture the assets had not been forfeited.

On behalf of the respondent, it was submitted that the assets in question had been fully and conclusively forfeited by the Decree No.58 of 1970.

Now reading the two Decrees, that is No.58 of 1970 and No.22 of 1972 carefully, it appears to me that the learned Senior Advocate for the appellant was right when he classified the assets of the appellant into three, namely:-

(i)      those automatically forfeited by and under Decree No.58 of 1970;

(ii)     assets of Captain Din, the company known as Nitico, and any other persons accused with Captain Din in criminal proceedings which terminated at Lagos in 1970; and

(iii)    other relevant assets, other than those mentioned in sections 2 and 3 of No.58 of 1970: these must be forfeited by an instrument.

I do not think that assets in class (ii) above are relevant in these proceedings. The simple question is whether the assets are of class (i) which had been forfeited in 1970 or class (iii) which could only have been forfeited by an instrument under section 4 of No.22 of 1972. Now, class (1) was created by sections 1 and 2 of the Decree No. 58 of 1970 which provide as follows:-

1. Relevant assets for the purposes of this Decree are assets which are or pur-port to be the property of –

(a)     a person known or formerly known as Captain Din, or

(b)     a company known as NITICO, or

(c)     any other person or body corporate or incorporate accused with the said Captain Din in criminal proceedings which terminated at Jos in the Benue-Plateau State of Nigeria in the year 1970.

2. Where any relevant assets are held by the Nigeria Police, it shall be the duty of the Inspector-General of the Nigeria Police to cause those assets to be sold and to cause the proceeds of the sale to be paid into the Consolidated Revenue Fund of the Federation.”

Now it is an accepted principle of interpretation of statutes that statutes which encroach on the rights of a subject, be they personal or proprietary rights, attract strict construction by the courts. The implication of that principle is that they are construed fortissime contra preferentes – if possible, so as to respect such personal or proprietary rights: See Walsh v. Secretary of State for India (1863) 10 H.L.C. 367; See also Hough v. Windus (1884) 12 Q.B.D. 224, per Bowen, L.J. at pp.234-235. So where there is any ambiguity in the construction of the statute that construction which preserves the individual’s right to his property is to be preferred. Another implication of this approach to construction of statutes is the presumption that a person’s right to his property will not be taken away without provision being made for adequate compensation therefor: Belfast Corporation v. O.D. Cars, Ltd. (1960) A.C. 490. How-ever, this is only a presumption, and is rebuttable: Westminster Bank Ltd. v. Beverley Borough Council (1968) 3 W.L.R. 671. In particular, where the law enabling a compulsory forfeiture of a citizen’s property also provides for certain methods or formalities for the forfeiture, the courts insist that those methods must be used and that those prescribed formalities must be complied with. In Alhaji Y.A.O. Bello v. The Diocesan Synod of Lagos & Ors. (1973) 1 All N.L.R. (Pt. 1) 247 this Court, per Coker, J.S.C., said at p.268:

“The principle on which the courts have acted from time immemorial is to construe fortissime contra preferentes any provision of the law which gives them extraordinary powers of compulsory acquisition of the properties of citizens.”

He cited and discussed in support two cases, namely: Re Bowman, South Shields (Thames Street) Clearance Order, 1931 (1932) 2 K.B. 621, at p.633 and Westminster Corporation v. London & N.W. Railway Corporation (1905) A. C. 426. Then he continued:

“Very often the legislation concerned prescribed formalities to be adhered to or complied with as prerequisites of the exercise of compulsive powers. In the application of the law the courts insist that the formalities prescribed should be fully complied with.”

Then he referred to Maxwell: Interpretation of Statutes (12th Edn.), p.258 and cited in support the case of East Riding County Council v. Park Estate (Bridlington) Ltd. (1957) A.C. 223 in which the House of Lords applied the principle. See also the decision of this Court in Peenock Investments Ltd. v. Hotel Presidential Ltd. (1983) 4 N.C.L.R. 122, at p.165. I shall apply this principle in this case. But I must bear in mind the fact that when it is stated that a court should construe an expropriatory legislation fortissime 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 cannon 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 proprietary rights are not taken away without a provision for compensation, the interpretation which preserves the right is to be preferred. Where, upon the construction of the statute it is obvious that the only clear intendment of it is that the proprietary rights are forfeited or acquired without compensation, the courts have no room for an invocation of the principle: the statute will be given its full effect.

The solution to the problem raised by this appeal turns on the interpretation of sections 1 and 2 of Decree No. 58 of 1970 which have been set out above. There can be no doubt that the property in question which, on the appellant’s own showing, had been in existence, identified and known to be the property of Captain Din on or before the 24th of December, 1970, when Decree No.58 of 1970 came into force, was contemplated by section 1(a) of that Decree. On the facts shown by the affidavit evidence before the court the police had taken possession of the property as envisaged by section 2 but because they could not sell as required by that section, they handed it over to the Federal Ministry of Education. No issue was raised in this appeal as to whether or not the handing over to Federal Ministry of Education was proper. The facts are, however, sufficient to lead to the inference not only that the property in question come within the first category of the appellant’s property, as classified above, but also that the property in question had been forfeited to the Federal Military Government. I must therefore hold that the property in question does not come within the purview of “other relevant assets” “other than those mentioned in the foregoing sections 2 and 3” of Decree No. 58 of 1970, for which an instrument of forfeiture would have been necessary.

Before I consider the second major question raised by this appeal, I must make an observation on one curious feature of this case, as revealed by the affidavit evidence before the court. It emerged that the appellant, as late as 1982, somehow pro-cured some certificates of occupancy, listed as Nos.944/82 and 945/82 both dated 30th November, 1982, with respect to the property in dispute. I do not have to decide this case on those certificate of occupancy. But I feel constrained to observe that it is stranger than fiction that while the forfeiture of the appellant’s property was effected by two Decrees in 1970 and 1972 and before this action challenging the forfeiture was instituted in September, 1982, the Governor of Plateau State thought it fit to issue certificates of occupancy to the appellant with respect to the same property. I only wish to observe that in view of the provisions of section 49 of the Land Use Act, 1978, the Governor of Plateau State is without power to grant certificates of occupancy over lands which in the fact of Decrees No. 58 of 1970 and 22 of 1982 had been forfeited to the Federal Military Government in 1970. 1 do not, how-ever, base my decision on these so-called certificates of occupancy.

Another fundamental question in the whole case is whether the whole proceedings took off the ground at all. In other words, was the Fundamental Rights (Enforcement Procedure) Rules which came into effect on the 1st of January, 1980; rightly Invoked to challenge a forfeiture which took effect in 1970? this question assumes an important dimension in view of the rule that generally the form of commencement of an action is to be treated as an irregularity and not a ground for nullity. There are, however, decided cases to the effect that where a particular procedure has been prescribed as a method of commencing an action, that procedure is to be followed. See on this:

Karimu Alade Obajimi v. The A.-G., Western Nigeria & 2 Ors. (1967) N.M.L.R. 96; also

Lahan v. A. G., of Western Region F.S.C. 41/1962 decided in June 19, 1963.

Admittedly there have been cases in which for the enforcement of fundamental rights, other forms of procedure have been approved by this Court or the Federal Supreme Court. In J.S. Olawoyin v. A. G., Northern Region (1961) 1 All N.L.R. 269 the Federal Supreme Court approved a procedure by way of a declaratory relief. In Taiwo Aoko v. Fagbemi & D.P.P. (1961) 1 All N.L.R. 400 procedure by way of an application was approved by Fatayi-Williams, J. (as he then was). So did the Supreme Court in Fapmi v. Speaker, Western House of Assembly (1962) 1 All N.L.R. (Pt. 1) 205. See alsoAkande v. Araoye (1968) N.M.L.R. 283; and in Re G.M. Boyo (1970) 1 All N.LR. (Pt.1) 111. But it must be noted that one reason behind all the above decisions was that the Constitution which gave the right intended that a law would be passed to regulate the procedure. But, as no such law had been passed, it would be wrong to hold that the failure to pass the law had taken away the entrenched right. In the circumstances the court would apply any reasonable procedure.

Under the 1979 Constitution, a new situation has arisen. The Chief Justice of Nigeria in exercise of the powers vested in him by section 42(3) of that Constitution has made the Fundamental Rights (Enforcement Procedure) Rules, 1979, effective from 1st January, 1980. In my opinion those Rules have prescribed the correct and only procedure for the enforcement of fundamental rights which arise under Chapter IV of that Constitution. But they were specifically designed for the enforcement of breaches of fundamental rights under the 1979 Constitution and not those under the 1963 Constitution. It follows from this that those Rules could not have been rightly invoked in September, 1983, for the enforcement of 1970 or 1974 alleged encroachment on the appellant’s fundamental rights. That this is the intendment of the 1979 Constitution itself is underscored by section 6(6)(d) of that Constitution which stipulates that judicial powers vested in accordance with that section shall not extend:

,to any action or proceedings relating to any existing law made on or after 15th January, 1966, for determining any issue or question as to the competence of any authority or person to make any such law.”

The above provision came up for interpretation by this Court in F.S. Uwaifo v. Attorney-General, Bendel State & Ors. (1983) 4 N.C.L.R. 1. In the judgment of Idigbe, J.S.C., to which Irikefe, J.S.C. (as he then was) and Obaseki, Eso, Nnamani and Uwais, JJ.S.C., concurred, he construed that provision. He stated at p.35 as follows:

“Once again I pause to recall my earlier observation, that the question whether a law is in existence or in force, must be distinguished from the other question whether, although in force, it can have effect under the Constitution under section 274(1): It seems to me that, while the Constitution empowers the courts to inquire into the validity of any existing law, it clearly intends that the courts should not inquire into proceedings which seek to determine issues or questions as to the competence of any authority or person (i.e. the legal capacity, power, legal qualification or jurisdiction of any authority or person) to make any existing law promulgated between 15th January, 1966 and 1st October, 1979, in other words the court are precluded from inquiring into the validity of any such laws. Indubitably, the provisions of section 6(6)(d) aforesaid are aimed at proceedings which seek to detract from the binding force and or authority of any unrepealed law made by the Military Regime between 15th January, 1966 and 1st October, 1979 when the new Constitution came into force.”

This is the clear intendment of the present proceedings. Such laws which escaped the repealing, nullification, and modification exercise under Decree No.105 of 1979 include the two Decrees relevant in this case, that is Nos. 58 of 1970 and 22 of 1972. They became existing laws within the meaning of section 274. To hold that the court had jurisdiction to entertain the present suit will, therefore, be tantamount to holding that the Constitution itself ousted jurisdiction over such matters by reason of section 6(6)(d) thereof but that the Fundamental Rights (Enforcement Procedure) Rules 1979, a subsidiary legislation, vested the court with such jurisdiction. This cannot be so. For, a subsidiary legislation derives its validity and authority from a substantive law, constitutional or otherwise. It has not the capacity to extend such jurisdiction or authority. Moreover, on principle, a Rule such as that which came into force in 1970 and creates and regulates its own remedies (for which see Order 6 thereof) cannot be invoked to enforce or safeguard a right alleged to have been breached in 1970 or 1974.

For all I have said above, and for the fuller reasons given by my learned brother Uwais, J.S.C., in his lead judgment, the appeal fails and is dismissed.

But this is not the end of the matter. I must also consider what consequential orders I can make in the circumstances of this case, particularly having regard to the fact that, on my findings above, not only did the case not properly take off the ground but also, If it did, the jurisdiction of the courts was completely ousted -to adjudicate on cases of forfeiture under Decrees Nos. 58 of 1970 and 22 of 1972. See on this, Decree No.28 of 1970. This Court has got the power to make whatever order the court of trial or the court below could have made in the circumstances, notwithstanding the fact that the respondents did not cross- appeal. See on this, section 22 of the Supreme Court Act, 1960, and Order 8 rule 12(5) of the Supreme Court Rules, 1985.

Issues of jurisdiction can always be raised either by either party or the Court. I believe that the correct order is one striking out the plaintiff’s claim. It is, therefore, accordingly struck out.

The appellant shall pay the costs of this appeal which I assess at N500.00

WALI, J.S.C.: The germane issues raised in this appeal relate to the interpretation of Acts No. 58 of 1970, No.22 of 1972 and No. 37 of 1968 vis-a-vis the forfeiture to the Federal Ministry Government of the assets of the appellant, and also the applicability of sections 40 and 42 of the 1979 Constitution to that forfeiture. I have been privileged to read before now the judgment of my learned brother Uwais, J.S.C. and I entirely agree with his reasoning and conclusions that the appeal has no merit and must fail. For these same reasons ably given in the lead judgment which I adopt as mine, I shall also dismiss this appeal as lacking in merit The conclusion by the learned trial Judge that his court is not competent to entertain the application for want of jurisdiction cannot be faulted and is therefore sustained. The order of trial de novo made by the Court of Appeal, Jos Division, is set aside, and the case is struck out.

I abide by the consequential order made in the lead judgment regarding the award of costs.

Appeal dismissed.