ALHAJI BABA BAKIN SALATI (APPELLANT)

v.

ALHAJI TALLE SHEHU (RESPONDENT)

(1986) All N.L.R. 53

 

Division: Supreme Court Of Nigeria

Date of Judgment: 17th January, 1986

Case Number: (SC 26/1984)

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

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

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

HELD:

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

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

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

Appeal allowed.

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

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

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

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

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

In the first additional ground of appeal the appellant complained that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse."

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

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

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

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

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

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

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

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

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

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

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

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

(b)     proceedings by way of petition of right;

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

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

(a)     proceedings in respect of any land the subject of a statutory right of occupancy granted by a local authority or of a customary right of occupancy where all parties are subject to the jurisdiction of area courts, subject nevertheless to the provisions of paragraph (b), Subsection (3):

Provided that nothing herein contained shall be deemed to confer jurisdiction on any area court in regard to dispute relating to intertribal boundaries;

          (b)     proceedings under the provisions of Subsection (2) of Section 39.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE LAND USE DESIGNATION OF URBAN AREA ORDER, 1978       

Date of Commencement:                             24th November, 1978                       

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

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

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

                                                                                             SCHEDULE

                                                                                      Designated Urban Areas

 

Adikpo,                                        Aliade,                               Ankpa,                                           Ayengba,

Dekina,                                        Eguma,                             Gboko,                                           Idah,

Katsina-Ala,                                 Makurdi,                            Oguma,                                         Oju,

Okpoga,                                       Otukpo,                             Ugbokolo,                                      Vandeikya,

Zaki Biam,

                  MADE at Makurdi this 24th day of November, 1978.

GROUP CAPTAIN BAYO LAWAL,

                                                                                          Military Administrator,

                                                                                         Benue State of Nigeria"

Section 2 of the Land Use Act 1978 confers on the Military Governor of each state, the management and control of all lands which comprises the urban area of the State. It also gives to the Local Governments in each states the power to control and manage in their areas of jurisdiction all lands that are not designated "urban area" by the Military Governor. Under the Act, a Military Governor may grant to any person a right of occupancy over a piece of land, whether or not such piece of land is situate in an urban area or non-urban area. (See Section 5(1) thereof). Such grant of title is "a statutory right of occupancy" under the Act (see section 50(1) thereof). Similarly, a Local Government may grant to any person a right of occupancy. But such grant is restricted to a piece of land that is not in an urban area (see Section 6(1) of the Act). The right granted by a Local Government is "a customary right of occupancy" (see Section 50(1) of the Act).

Now the division of the jurisdiction of the Courts established in a state in respect of land matters is contained in Sections 39, 40 and 41 of the Land Use Act 1978. The division appears to follow the classification of land into urban areas and non-urban areas. Our concern in this case relates only to the provisions of Sections 39 and 41 and not Section 40. The relevant sections read:

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

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

(b)     proceedings to determine any question as to the persons entitled to compensation payable for improvements on land under this Decree.

           (2)     All laws, including rules of court, regulating the practice and procedure of the High Court shall apply in respect of proceedings to which this section relates and the laws shall have effect with such modifications as would enable effect to be given to the provisions of this section.

41      An area court or customary court or other court of equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings in respect of a customary right of occupancy granted by a Local Government under this Decree; and for the purpose of this paragraph proceedings includes proceedings for a declaration of title to a customary right of occupancy and all laws including rules of court regulating practice and procedure of such courts shall have effect with such modifications as would enable effect to be given to this section."

What emerges therefore is that the jurisdiction now exercisable by Area Courts in land matters is limited to disputes related to such land, the right of occupancy of which is a customary right of occupancy. In other words, the jurisdiction applies only to matters affecting land, the right of occupancy over which is granted by a Local Government. It is noteworthy that by the provisions of Section 41 of the Act, "all laws including rules of court regulating practice and procedure" of Area Courts have effect only "with such modification as would enable effect to be given to" the provisions of the section. By virtue of its being an existing law under Section 274, Subsection (4)(b) of the Constitution of the Federal Republic of Nigeria 1979, the Land Use Act 1978 was deemed to have been an Act of the National Assembly at the time this case was instituted in the Muslim Area Court, Makurdi. That is on 28th January, 1980. The doctrine of covering the field was applicable to its provisions on the jurisdiction of Area Court. So that the provisions of its Section 41 prevailed over those of Section 41, Subsections(2) and (6) of the Land Tenure Law which was an existing law also deemed to have been enacted by the House of Assembly of Benue State. See The Attorney-General of Ogun State v. The Attorney-General of the Federation, (1982) 3 N.C.L.R. 166 at p. 179; (9182) 1-2 S.C. 13 and The Attorney-General of Ogun State v. Alhaja Aberuagba & Ors. (1985) 1 N.W.L.R. 395 at p. 405 and 450. Accordingly, the Area Courts do not have jurisdiction to determine any dispute pertaining to land in a designated urban area. This means that all land cases arising in the major towns in Benue State as listed in Benue State Legal Notice No. 6 of 1978 can only be heard by the High Court of Benue State. It does not matter if no certificate of occupancy has been granted by the Military Governor after the declaration by him of an area as "urban". For Section 34, Subsections(1) and (2) of the Land Use Act provides:

"34.    (1) The following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Decree.

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

It remains baffling if it was the intention of the Military Governor of Benue State that every dispute on land in the urban areas designated by him should be taken to the High Court. It seems to me that the designated areas are many and they seem to cover all the towns of the State. It is doubtful if by its strength since 1978, the High Court of the State can cope or has been coping expeditiously with the land cases in the designated areas.

Be that as it may, it is for these and the reasons given by my learned brother Nnamani, J.S.C. that I agree that the Muslim Area Court, Makurdi had no jurisdiction to try the dispute in this case which relates to a developed land situated in Makurdi-a town that had been designated "urban area" by the Legal Notice quoted above. The action in the case was filed in the Muslim Area Court on 28th January, 1980, that is long after Makurdi had become an urban area on 24th November, 1978. Accordingly the trial before the Muslim Court is hereby declared null and void and so also the proceedings in the High Court of Benue State and the Court of Appeal. The respondent shall pay 300.00 costs to the appellant.

Karibi-Whyte, J.S.C.-I have read the judgment of my learned brother Nnamani, J.S.C. in this appeal. I agree entirely with the reasoning and conclusion that this appeal be allowed. I merely wish to express my own views (even if identical) on the only issue argued before us that the Muslim Area Court, Makurdi had no jurisdiction to try the claim the subject matter of this appeal, having regard to the provisions of S.39(1)(a) of the Land Use Act No.6 of 1978.

The history of the litigation resulting in this appeal has been very fully stated in the judgment of my learned brother Nnamani, J.S.C. I need not repeat them here. It is however relevant to what I would say hereafter to reiterate that the genesis of the action was a claim seeking "Court assistance for revocation of sale of Plot No. 3 Bank Road, Makurdi", Appellant was the 2nd defendant in the action in which Respondent was the Plaintiff. In the trial Court, it was assumed by the Court that the parties being Muslims, the action was governed by Islamic Law. Appellant protested against jurisdiction of the Court and did not take part in the proceedings. Judgment was accordingly given on the 23rd May 1980 in favour of the Plaintiff. In its judgment, the Area Court regarded the action as one "for revocation of contract of plot No. 3 Bank Road, Makurdi." The reason for finding in favour of the Plaintiff was said to be to avoid hostility between brother Muslims of the same tenet. It was held that "the sale of plot No. 3 Bank Road, Makurdi by Alhaji M. Fari (1st Defendant) to Alhaji Baba B. Salati (2nd Defendant) was done in violation of Sharia Law of Trading ......" The contract of sale was revoked and the sale dissolved in compliance with the provision of Sharia Law. 2nd Defendant appealed to the Makurdi High Court; on four grounds of appeal. Grounds 1 and 2 allege the want of jurisdiction of the Moslem Area Court both on the ground that the subject matter was not a matter relating to Moslem Personal Law as defined by the Area Courts Law of 1968 read together with the Sharia Court of Appeal Law of 1960, and on the ground that the subject matter being a plot of land covered by certificate of occupancy in an urban area, the jurisdiction of the Moslem Court was ousted by S. 39 of the Land Use Act.

The High Court rejected the second ground because the certificate of occupancy in respect of the property was not tendered in the proceedings before the Muslim Area Court; consequently S. 39 of the Land Use Act was not applicable. However, relying on the conditional ground of appeal the court found as a fact that the plot of land in question was in Makurdi, an urban area. It also found that the case had no features of Moslem personal law. The High Court allowed the appeal because there were no attributes of a valid contract of sale in the transaction. The decision of the trial Court was set aside.

The Plaintiff/Respondent appealed to the Court of Appeal on six grounds. Before argument, counsel to the respondent applied to adduce further evidence, to wit, to tender the certificate of occupancy in respect of the land in dispute. The application was refused. In allowing the appeal and reversing the judgment of the High Court, the Court of Appeal held Islamic principles of law applicable. Accepting the argument of counsel for the appellant that it is not correct as stated by the High Court that the trial Court did not set out the applicable principle of law, said,

"It is clear from the record that the trial court not only did state that (sic) applicable principle of Islamic law, but also quoted the source of the law . . ."

In the unanimous judgment read by the Umaru Abdullahi, J.C.A., the Court of Appeal argued that if the trial Area Court had applied the principle of Islamic personal law then the appeal would have gone to the Sharia Court of Appeal "the fact the appeal rightly went before them, clearly showed that the principle of law applied by the trial Area Court is just principle of Islamic Law simpliciter."

The Court of Appeal held that all the submissions made by counsel in respect of certificate of occupancy, applicability of the provisions of the Land Use Act 1978, and the non-joinder of the Governor as a party to the suit

before the Court were misplaced. It is conceded that none of the grounds of appeal in the Court of Appeal questioned the competence and jurisdiction of the trial Court. In the Court of Appeal, Respondent, who is now Appellant, attempted to adduce fresh evidence by tendering the certificate of occupancy covering the subject matter of the litigation, i.e. No. 3 Bank Road, Makurdi. The application was refused. The Court of Appeal allowed the appeal and restored the judgment of the trial Court on the ground that want of jurisdiction was not an issue before the Court. The Court of Appeal held quite rightly that the certificate of occupancy was never in evidence either before the trial Court or in the Appellate High Court. The Court of Appeal held that the Appellate High Court was wrong to have held that there was no valid contract of sale under Islamic Law. Abdullahi, J.C.A., concluded as follows:-

"Having regard to the nature of the transaction and the parties involved the trial Area Court was right to approach the issue the way it did and apply the principles of Islamic Law which in my view are correctly applied having regards to the evidence available before it. The composition of the court and its designation are other factors that lead credence to my view. The Judge is a sole Judge and the Court is designated as Muslim Area Court, Makurdi."

Continuing on the competence of the Court, Abdullahi, J.C.A. would seem to have stated in full his considerations for accepting that the trial Court had jurisdiction. He said:

"In my view, the nature of transaction and the issue for determination before the Court was not strictly founded on what can simply be termed as land cases or matters. It is more or less on issue arising from rights of the parties as a purchaser and vendor in a contract for the sale of a house. The farthest I can go in this case is that, at best, the parties to the suit before the trial Area Court, more particularly the Appellant and the respondent is (sic) who acquired the interest in the house first arising from the contract of sale. In my view this does not fall for the application of Tiv Native Law and custom, otherwise the result will be absurd, and absurdity is not and will never in my view be one of the pillars of justice."

The Court of Appeal in reversing the Appellate High Court, held that Islamic law principles were applicable and restored the judgment of trial Area Court. With due respect none of the considerations by the Court of Appeal in determining the jurisdiction of the Court was acceptable in view of the clear unequivocal provisions of S. 39 of the Land Us Act. What affects jurisdiction is that the subject matter is subject of statutory right of occupancy.

Appellant has further appealed to this Court, first on two grounds of appeal which were withdrawn and accordingly struck out.

With the leave of this Court, counsel to the appellant, G. Brown-Peterside Esq., S.A.N., filed four additional grounds of appeal, but only the first ground is relevant to this judgment. Grounds 1 & 2 of the grounds of appeal are as follows-

PROPOSED GROUNDS OF APPEAL

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

ALTERNATIVELY

(2)     The Appellant did not have a fair trial in the Muslim Area Court since, inter alia, he was not given the opportunity to cross-examine the two witness called by the Respondent (i.e. Plaintiff), and whose evidence greatly influenced the decision of the said Court.

Counsel elected to argue only ground 1 of the additional grounds of appeal and rested the case of the appellant on that ground. In his formulation of issues for consideration in this appeal in respect of this ground, counsel posed the following question-

"Did the Moslem Area Court which heard this suit in the first instance have jurisdiction to entertain the claim before it?"

In this written brief and submission before us, Mr Brown-Peterside S.A.N. contended that the Court of first instance lacked jurisdiction to entertain the claim the subject matter of this appeal. He pointed out that the subject matter of this suit related to a contract affecting land situate in an Urban Area, of Makurdi Benue State. Counsel referred us to The Land Use Designation of Urban Area Order B.S.L.N. 6 of 1978 made under and by virtue of Section 3 of The Land Use Act, 1978. The Order which is (No. 6 of 1978) came into effect on 24th November, 1978. It was also submitted that the subject-matter of this appeal is developed land as defined under S.50(1) of the land Use Act. Counsel referred to sections 34(1) (2) (3) which provided that as form the commencement of the land Use Designation of Urban Area Order, 1978, any title deed held in respect of any developed land situate in Makurdi must be deemed to be a Statutory right of occupancy issue by the Military Governor or Administrator of the State. On these premises Counsel submitted that having regard to S.39(1) of the Land Use Act, exclusive original jurisdiction in respect of any proceedings, the subject matter of a statutory right of occupancy, is in the High Court of the State.

Counsel cited and relied on Nkwocha v. Governor of Anambra State & Ors. Skenconsult. (Nig. Ltd. & Anor v. Godwin Sekondy Ukey (1981) 1 S.C.Mcfoy v. U.A.C. Nig Ltd. (1962) A.C. 152.

Mr Toro, Counsel to the respondents, submitted before us that the issue before the Court concerned a contract or agreement for the sale of the house in dispute (as distinguished from actual sale or conveyance of the house) made between Moslems. He pointed out that the claim of the Respondent before the trial Court was for an Order for specific performance of the contract. Concisely stated his contention was that the issue before the trial Court was not an action relating to land, but merely an action for specific performance of an agreement to sell a house. Counsel accordingly contended that in the circumstance and on the facts of the case, the Land use Act, 1978 was irrelevant and applicable. He submitted that Islamic law which is the applicable native law and custom was applicable and that the trial Court correctly applied principles of Islamic law.

Alhaji Abba also Counsel for the Respondents submitted that the Land Use Decree 1978 and the Designation of Land Notice No. 6 of 1978 of Benue State do not operate to oust the jurisdiction of the Court of trial. Counsel cited and relied on S.39(1) of the Land Use Act No. 6 of 1978. It was submitted that the issue before the Court was not one for the revocation of certificate of occupancy, or of title to land, but an issue of revocation of contract for sale under Islamic Law of property within the designated area. It was submitted that the applicable law in the area Court Edict No. 4 of 1968, S. 20, 21 (1) (2). It was contended that these sections are not in conflict with section 39 of the Land use Act 1978. Counsel referred to S.61 of the area Courts Edict and urged that the appeal be dismissed.

The appeal succeeds or fails on the only ground argued and relied upon by Counsel for the Appellant, namely that the trial Court, i.e. the Makurdi Area Court has no jurisdiction in respect of the matter before it and that accordingly its decision was a nullity. Consequently all the subsequent decisions thereafter were nullities.

Before considering the issue, it is necessary to dispose of an initial objection raised by Counsel to the respondents that the issue before us was being raised for the first time in this Court, and that since this was a matter which ought to have been raised and argued in the Court below this Court, should not entertain the point of law.

The conditions under which this Court entertains points of law raised for the first time before it was stated with sufficient clarity in its recent decision of Fadiora & Anor v. Gbadebo & Anor (1978) 3 S.C. 219 at p. 247. It was there stated that this Court ought not decide in its favour unless it is satisfied beyond reasonable doubt that

(i) it has before it all the facts bearing on the new contention as completely as if it has been raised in the Court of trail, and

(ii) that no satisfactory explanation could have been given in the Court below if it had been raised there.

It is well settled that a party to a litigation is entitled to raise an issue of the want of jurisdiction of the Court of trial, at any stage, or the proceedings and even on appeal-Shobogun v. Sanni & Ors (1974) 1 All N.L.R. (Pt.2) 311. In Shonekan v. Smith (1964) 1 All N.L.R. 168, at p. 173 it was stated on issue of interpretation which was not raised in the court below, could be raised and argued in the Court of Appeal if no further evidence was required for such interpretation.

There is no doubt that the point now raised will not require any new evidence. Indeed Counsel for the Appellant has not sought leave of this Court for any new evidence. Besides, the issue is a fundamental one affecting the competence of the trial Court to exercise jurisdiction.

On the judicial authorities as they stand, there is no doubt that if the point of law is established, it will be unanswerable. In the circumstances, the objection is untenable.

Be that as it may, it is not strictly correct to contend that the issue of the jurisdiction of the trial court as being raised for the first time in this Court. The issue of the competence of the court was first raised by the appellant, then as 2nd. Defendant, on the ground stated by the court as "non-Islamic objectivity ?" Whatever that means, it seems to me a challenge to the competence of the trial Court. The issue of the competence of the Court of first instance for want of jurisdiction of the trial Court was made a ground of appeal in the High Court. It is pertinent to quote the relevant grounds 1 and 2.

1.      That the trial Moslem Area Court erred in law in entertaining the matter in the first instance since the cause of action is one for which the said court is not competent to entertain as it was not a matter relating to the Moslem Personal Law as defined by the Area Courts Law 1958 read together with section 11 of the Sharia Court of Appeal Law of 1960.

2.      That the trial Court erred in law in entertaining the suit since the subject matter in controversy is a plot of land covered by a certificate of occupancy in an urban area Makurdi and by section 39 of the Land Use Act, the jurisdiction of the said Moslem Court is ousted."

The issue of the jurisdiction of the trial Court was not considered by the Appellate High Court which had the opportunity to do so, although the appeal was allowed on another ground. However, the Appellate High Court made the following useful observation-

"In the case on appeal before us we are satisfied that the plot of land in question is in Makurdi, an urban area and so the submission of learned Counsel for respondent is not opposite here."

Counsel for the respondent had argued that by virtue of section 6 of the Land Use Act the certificate of occupancy issued after the Land Use Act came into operation by the Local Governments are deemed to have been issued by the Governor. Clearly this argument and opinion of the Appellate High Court, ignored ground 2 of the grounds of Appeal in that Court.

Whatever might have been in doubt in this case, it was not disputed at any stage that the subject matter of the contract of sale sought to be enforced is No. 3 Bank Road, Makurdi Benue State. By the Land Use Designation of Urban Area Order 1978, (B.S.L.N. of 1978) made under S.3 of the Land Use Act 1978 which came into force on the 24th November, 1978, Makurdi was designated an Urban Area for the purposes of the Land Use Act, 1978. The order is by S. 73(1) (a) of the Evidence Act subject matter for judicial notice which requires no proof.

Mr Brown-Peterside S.A.N. has submitted that No. 3 Bank Road Makurdi, having been designated land in an Urban Area is outside the jurisdiction of the Trial Area Curt. This is by virtue of S. 39(1) of the Land use Act 1978 subject of statutory right of occupancy. Section 39(1) provides as follows-

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

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

For the purposes of the Land Use Act land holding is classified into customary right of occupancy and statutory right of occupancy-See Sections 5, 6 of Land use Act. The former relates to the right of a person or community lawfully using or occupying land in accordance with customary law, whereas the latter means a right of occupancy granted by the military Governor under the Act-See S.50(1).

The evidence before the Court was that the transaction was in respect of a house in No. 3 Bank Road. Such land which is defined as developed land shall continue to be held by the persons in whom it is vested immediately before the commencement of the land use Act as if the holder of the land was issued with statutory right of occupancy by the Military Governor under the Act-See S.34(2).

Contract for the sale of a house is a contract relating to land within S.4 of the Statute of Frauds 1677. Hence where the action is for specific performance, of the contract of such land, the action affects land and relates to transactions in land within the meaning of the Land Use Act.

Part VII of the Land use Act provides for the Jurisdiction of the High Court and other Courts.

S.39(1) specifically relates to "proceedings in respect of any land subject of a statutory right of occupancy granted by the Military Governor or deemed to be granted...." On the other hand Section 41 confers jurisdiction on Area Courts or Customary Courts or Courts of equivalent jurisdiction in respect of customary right of occupancy granted by a Local Government under this Act.

There is no ambiguity in the two sections that the exclusive original jurisdiction in respect of land held under statutory right of occupancy is vested in the High Court of the State, whereas jurisdiction in respect of customary right of occupancy is vested in the Area or Customary Courts. The exercise of these jurisdictions will seem to me mutually exclusive. There is no doubt therefore that the one cannot exercise the jurisdiction of the other.

It seems obvious that this being a contract relating to land, and land hold under statutory right of occupancy, it is the Land Use Act that applies, and not Islamic law as suggested by the trial Court and the Court of Appeal. The trial Court would have had jurisdiction if the subject matter in dispute were land held under customary right of occupancy.

A court is only competent to exercise jurisdiction where it satisfied the following conditions prescribed in Madukolu & Ors. v. Nkemdilim (1962) 1 All N.L.R. 587.

(1)     This is where the Court is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified.

(2)     the subject matter of the case is within the jurisdiction and there is no feature in the case which prevents the Court form exercising jurisdiction; and

(3)     the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction-(See Bairamian FJ at p.595)

Accordingly for the trial Area Court to be competent to exercise jurisdiction it must satisfy the tests laid down in Madukolu & Ors. v. Nkemdilim & anor, (1962) 1 All N.L.R. 587.

It seems quite obvious from the express provision of S.39(1) and the facts of this case that the subject matter is not one within the jurisdiction of the Court. The inevitable conclusion therefore is that the Court acted without jurisdiction, and its decision therefore a nullity-See Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 S.C. 6, at p.9.

Both the High Court in its appellant jurisdiction which reversed the trial Court and The Court of Appeal which would seem to have approved the decision of the trial Court itself acted without jurisdiction. As Irikefe J.S.C. (as he then was) now C.J.N. expressed it in Peenock Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C. 1 at p. 30 "it is an exercise in futility."

The very apt description of Denning L.J. in U.A.C. Ltd. v. Macfoy (1962) A.C. at p. 160 explains the situation beyond controversy. He said,

"If an act is void, then it is in law a nullity. it is not only bad, but incurably bad...And every proceeding which is founded on it is also bad and incurably bad."

That is the position in this case. The proceedings in the trial Court being a nullity every other proceedings founded on it is a nullity.

The Appeal therefore succeeds. The judgment of the Court of Appeal is hereby set aside. Respondent is to pay N300 as costs to Appellants.

Kawu, J.S.C.-I have had the advantage of reading in draft the judgment just read by my learned brother, Nnamani, J.S.C. and I respectfully agree with his conclusion and reasons given thereto. For these reasons, I would also allow the appeal and declare null and void the judgment of the Muslim Area Court, Makurdi in Suit No. MAC.9/79. I would also declare null and void the judgments of the High Court, Benue State and that of the Court of Appeal, both being judgments on appeal from the said judgment of the Muslim Area Court. N300.00 costs are awarded in favour of the appellant.