Peenok Investments Ltd V. Hotel Presidential Ltd (1982) LLJR-SC

Peenok Investments Ltd V. Hotel Presidential Ltd (1982)

LawGlobal-Hub Lead Judgment Report

A. G. IRIKEFE, J.S.C. 

In the Anambra State High Court, the appellant, a limited liability company, commenced this action against the respondent, also a limited liability company, and claimed as follows:-

“The plaintiff’s claim against the defendant is for N342,000 being the amount due to the plaintiff from the defendant for the use and occupation by the defendant of the plaintiff’s property known as and called PLOT A/42 DIOBU G.R.A., PORT HARCOURT for the period 24th March, 1972 to 23rd March, 1977 inclusive, and for mesne profits until judgment at the following rates:

(a)  24th March, 1972 to 23rd March, 1975 at the rate of N6,000 per annum for luxury flat of 3 triplex buildings containing 9 luxury flats = N162,000 (One Hundred and Sixty-Two Thousand Naira)

(b) 24th March, 1975 to 23rd March, 1977 inclusive at the rate of N10,000 per annum per flat for 9 luxury Total : N342,000 (Three Hundred and Forty-two Thousand Naira)

(c)  Mesne profit at the rate of N10,000 per flat from 24th March, 1977 until judgment.”

Issues arising for a determination before the court of trial, so far as they were relevant, were set out in the appellant’s statement of claim thus:-

“(1) The plaintiff is a limited liability company with its head office situate at 36, Abakaliki Road, Enugu.

(2)  The defendant is a limited liability company carrying on business as Hotel Proprietors with its head office at the Independence Layout, Enugu.

(3)  The plaintiff is the owner of triplex buildings containing 9 luxury flats known as PLOT A 42 at Diobu Government Residential Area Port-Harcourt.

(4)  In 1967 the defendant through its accredited representative requested of the plaintiff to use the said building as an Annexe to its Hotel at Port-Harcourt known as HOTEL PRESIDENTIAL.

(5)  The plaintiff and defendant eventually agreed that the defendant would use and occupy the said buildings as part of its Hotel Presidential, Port-Harcourt with effect from 24th March, 1967 at an annual rent of N24,300 (312,150.00 pounds.) payable in advance.

(6)  By letter dated 20th March, 1967 the defendant acknowledged the receipt of all the keys including duplicates for the said buildings from the plaintiff. This letter will be founded upon.

(7)  Thereupon the defendant paid a year’s rent in advance and entered into occupation of the said buildings as agreed upon.

(8)  The defendant continued to use and occupy the said buildings but neglected and/or failed to pay the annual rent.

(9)   In consequence thereof the plaintiff in Suit E/99/72 sued the defendant for N97,200 (48,600.00pounds.) for the use and occupation of the said buildings for the period 24th March, 1968 to 24th March, 1972 at the rate of N24,300 (12,150.00pounds) per annum and obtained judgment. This suit will be founded upon.

(10) The defendant has since paid the judgment debt.

(11)  The defendant is still in occupation of the said buildings which continue to be used as part of the said Hotel.

(12) The plaintiff will at the trial rely on the correspondences establishing that the said buildings are still being occupied as part of the said Hotel.

(13)  The defendant has neglected despite repeated demands to pay the monies for the use and occupation of the said buildings.”

The respondent for its part averred as follows in its Statement of Defence:-

“(1)  The defendant admits paragraphs 1 and 2 of the statement of claim.

(2)    The defendant denies paragraph 3 of the statement of claim and further states that as from the 16th day of October, 1972 the plaintiff ceased to be the owner of PLOT A/42 at Diobu Government Residential Area, Port-Harcourt.

(3)  The defendant admits paragraphs 4 to 10 of the statement of claim.

(4)  The defendant denies paragraphs 11 and 12 of the statement of claim and further states that as from the 16th day of October, 1972 the defendant ceased to be the tenant of the plaintiff.

(5) In answer to paragraphs 13 to 16 the defendant avers that the lease of PLOT A/42 at Diobu Port Harcourt was cancelled on the 16th day of October, 1972 and the plaintiff could not therefore revise or demand any rent on the property. The Rivers State Government Gazette Notice No. 412 of 26th September, 1973 will be founded upon at the trial.
(6)  The defendant will at the trial contend –
(a)  that the lease of Plot A/42 Diobu Port-Harcourt had been cancelled and the ownership of the property reverted to the Rivers State Government in accordance with Rivers State Edicts Nos. 15 and 17 of 1972.

(b)  that as from 16th October 1972 the plaintiff ceased to be the owner of PLOT A/42 Diobu Port-Harcourt and therefore ceased to be entitled to further rent.

(c)  that the last rent as per Suit E/99/72 paid to the plaintiff expired on 24th March, 1972 and the plaintiff is therefore entitled to only six months 16 days (61/2  months) rent (from April, 1972 to 16th October, 1972) at the rate of N2,025 per month.

(d)  that the rent due to the plaintiff for the 61/2  months is N13,162.50.”

Before the actual hearing, the appellant sought and obtained the leave of court to raise the following matters by way of a reply:-

“(1)  In answer to paragraphs 4, 5 and 6 of the statement of defence the plaintiff will put the defendant to strict proof of the allegations of fact contained therein except as hereinafter admitted and will at the trial contend:-

(i)   That the then Military Governor of Rivers State, A. P. Diete-Spiff, approached the Managing Director of the plaintiff company, Chief  P. N. Okeke, through one Ramani Abah of Ramani Abah & Co., to sell the buildings, the subject matter of this suit, to the said A. P. Diete-Spiff personally and the said Chief P. N. Okeke bluntly refused the offer. This was on the 22nd February, 1972.

(ii)  That the said notice of cancellation of lease dated 26th September, 1973 was
(a)  irregular, vindictive, mala fide and an abuse of power;
(b)  giving a public veneer to purely personal vendetta.

(iii)   That the government of Rivers State did not itself need and has never used the said building for any public purpose or at all. The plaintiff will rely on various correspondences touching this matter and especially the Rivers State Government’s letters of 7th, 8th, 30th September and 29th November, 1976.

(iv)   That the defendant directly and/or through its agent continues to use and occupy the said building.”

At the hearing, only one witness (Chief Patrick Nwokoye Okeke) the appellant’s chairman and managing director gave evidence and produced several documents. The respondent called no evidence and rested its case on that of the appellant.

Arising from the evidence and the welter of documents produced, a short historical digression might not be out of place here. At the end of British colonial rule in 1960 when Nigeria became a sovereign nation, the country was made up of  three Regions, each with its own government. The Eastern Region, like the other two regions, owned certain enterprises, located in different parts of the said region. These enterprises, now euphemistically described as “PARASTATALS”, included the PRESIDENTIAL HOTEL (the respondent) which had on-going hotel facilities at Enugu and Port-Harcourt. This action is concerned with the respondent’s hotel at Port Harcourt. In 1967, consequent upon the onset of the civil war and the proclamation of the Republic of Biafra in the then Eastern Region of Nigeria, three States were created out of the said region by Decree, namely – (a) East Central State (b) Rivers State and (c) South Eastern State. At the end of the civil war in 1970, an agency known as Eastern States Interim Assets and Liabilities Agency (ESIALA) was set up to take over the assets and liabilities of the former Eastern Region.

When this matter went to court in 1977, the following States were now in existence in the former Eastern Region – namely:

(a)ANAMBRA  (b)IMO  (c)RIVERS and (d)CROSS-RIVER.

The above facts are judicially noticeable under Section 73 of the Evidence Act. The action was thus filed in Anambra State as the respondent had its head-office there (vide the pleadings) although the actual property was now in the Rivers State. It is significant that the only opposition to this action came from the Ministry of Justice in Anambra State. This State sought to defeat this claim by relying on Edicts promulgated in the Rivers State.

After hearing evidence and counsel’s submissions, the trial court (Umezinwa, J.), upheld the appellant’s claim in part up to and including the 25th day of September, 1973, which was the day immediately before the date of the publication of the RIVERS STATE GOVERNMENT NOTICE No. 412 which purportedly cancelled the appellant’s lease. The court expressed its decision in these words:-

“In the circumstances of this case, the plaintiff in my view,  will only be entitled to rent for the use and occupation of its property up to the date of the cancellation of its lease …………… Mr. Agusiobo contends that the plaintiff is entitled to rent for the period 24th March, 1972 to 16th October, 1972. I do not agree with him. Although the Edict came into effect on the 16th October, 1972, plaintiff’s lease was not cancelled until the 26th day of September, 1973. Plaintiff is therefore entitled to rent or damages for the use and occupation of its property by the defendant from 24th March, 1972 to 25th September, 1973.
…………Judgment is therefore entered for the plaintiff against the defendant in the sum of N81,000.”

From the foregoing, it is clear that the respondent apart from the reliance it placed on the Edicts of the Rivers State Government, had no defence to the action.

Being dissatisfied with the above decision, the appellant appealed to the Court of Appeal, which court dismissed the appeal on the following grounds as set out in the appellant’s brief to this court:-

(a)    The issues concerning the validity of

(i)     Edicts Nos. 15 and 17 of 1972
(ii)    Gazette Notice dated 26th of September, 1973 and
(iii)   The acquisition of the property by the Rivers State Government were not distinctly raised on the pleadings at the trial of the action;

(b)    Accordingly, the issues aforesaid, upon which the plaintiff based his appeal from the judgment of the High Court were irrelevant;

(c)    The plaintiff ought to have applied to the High Court to join the Government of Rivers State as a party; and

(d)    Not having joined the Rivers State Government it was improper for the court to raise issues concerning the validity of the matters mentioned under item (a) above.

The dismissal of the appellant’s appeal did not apparently affect the monetary award made in favour of the appellant by the High Court as the judgment of the Court of Appeal ended on the following note:-

“In this appeal, there was no cross-appeal by the respondent on the issue of the amount awarded to the appellant by the learned trial Judge. The conclusion is that this appeal fails and it is dismissed.”

The appellant has now appealed to this court on seven grounds which were summarised in the brief of its counsel under the caption – Questions for Determination as follows:-

“(i) Joinder of parties –

(a) Ought the plaintiff to have applied to the High Court to join the Rivers State Government as a party to this action before it can properly raise the issues mentioned under item (i) of paragraph 3 of this brief.

(b)  If the answer to question (i) (a) is in the affirmative should the Federal Court of Appeal have dismissed the appeal without making an order striking out the case or directing a retrial with direction that all proper parties should be joined.
(ii) Validity of Edicts No. 15 and 17 of 1972:

(a)  Whether Edicts No. 15 and 17 of 1972 are void on the ground that they were made in bad faith by the then Governor of Rivers State.

(b)  Whether the aforesaid Edicts were also void on the ground that they are inconsistent with  the Constitution of the Federation 1963 as modified by the Decrees of the former Military Government.”

Chief Williams, SAN., representing the appellant made a number of legal submissions on the issues listed above.

Whether action defeated by non-joinder of Rivers State Government.

Counsel argued that the judicial powers of the Federation are vested in the courts and drew our attention to Sections 4(8) and 6 of the 1979 Constitution. It was the contention of counsel that in the peculiar circumstances of this case, it was immaterial whether the State affected (Rivers) appeared as a party in the case or not. He argued that a court has a duty to examine a claim before it in order to determine whether it has jurisdiction to entertain it. While it is true, as a general proposition of law, that the government of one State cannot be impleaded in the court of another State, the same would not hold true, if there was submission to jurisdiction by the government being impleaded. The rules of international law, counsel argued, also apply to internal conflicts. The case of Ports Authority v. Panalpina World Transport & Ors.  (1974) NMLR p.82 was cited as authority in support of this contention. Counsel argued that the appeal to the Court of Appeal was the appellant’s only means of establishing that the Edicts in this case were void, but that court had ruled that that point was not available to the appellant as it had not been pleaded. Counsel then argued that he would rely on the words of Lord Denning MR., in Re Vanderville’s Trust  (1974) Ch. 269 at 321 to show that the Court of Appeal was wrong in adopting a much too narrow and legalistic view in its approach to the issue of pleadings. All the facts on which the appellant relied had been pleaded and it was thus the duty of the Court of Appeal to determine the case on those facts.

VALIDITY OF STATE LANDS (CANCELLATION OF LEASES) EDICT, 1972 – Nos. 15 and 17

The arguments of learned counsel under this head fell under two categories. He contends firstly that the above edicts are void for inconsistency with the provisions of the 1963 Federal Constitution – by virtue of Section 31 thereof. The provisions of this section, counsel argued, are saved by Decree No. 1 of 1966 and in particular, Sections (3) and (4) thereof. Counsel argued that the 1963 Constitution under which the issues raised in this appeal fall to be decided, regulates the powers of government to take possession of land compulsorily. Whereas, counsel argued, the Public Lands Acquisition Law of the former Eastern Region would enable government to acquire land compulsorily for a public purpose, this law would not cover a case as that in hand, where the land is already State land. He stressed that to acquire compulsorily for an ostensible public purpose what had been already so acquired would constitute double acquisition which would be contrary to the provisions of either the 1963 Constitution or the Public Lands Acquisition Law or the State Lands Law. Counsel then argued that there is no law in force as at 31st March, 1958 or any law coming into force thereafter which permits the recovery of State land leased to an individual by the simple act of cancellation.

Under the second category it was the submission of counsel that, where, as in this case, the cancellation of the appellant’s lease was made in order to vest the property in a company whose shares are wholly owned by a State government, it would be wrong to hold as the trial Judge in this case did, that the acquisition was for a public purpose. Counsel then urged us to hold that the entire transaction was vitiated by bad faith. This appeal unquestionably raises important issues of law.

JOINDER OF PARTIES
At the close of pleadings, all facts on which the appellant sought to rely were properly before the ANAMBRA STATE HIGH COURT. The constitutional issues in this case were first introduced by the respondent and later met by the appellant.

In this case, a court in Anambra State in dealing with a claim for mesne profits was called upon to pronounce upon the validity of a law passed by another State (Rivers). As a general proposition of law, foreign law which would include the laws of the component States in a federation such as ours, is a question of fact which must be pleaded and proved in a trial.  See Abejide v. Ashiru – 1967 NMLR p. 365. In this country however, the actual need for proof of a Federal or State law is not called for, as this is one of those matters which a court of law is entitled to take judicial notice of under Section 73 (1)(a) of the Evidence Act, which reads:-

“The court shall take judicial notice of the following facts:-

(a)  all laws or enactments and any subsidiary legislation made thereunder having the force of law or heretofore in force, or hereafter to be in force, in any part of Nigeria;”

I am unable to agree that any court can, in a given case, treat the legislation of any State as if it did not exist or pronounce upon its validity in vacuo. It can only do so in a proper case and in a dispute between parties appearing before it. See per Matthews, J., in Steamship Co. v. Emigration Commissioners 113 U. S. 33, 39 (1885) where the learned Justice of the Supreme Court had this to say:-

“It (the court) has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is a dictate of wisdom to follow them closely and carefully.”
(Underlining mine).

The Court of Appeal was of the view that the Rivers State Government as a person likely to be affected by the result of this case ought to have been joined by the High Court. The applicable rules of joinder are as in Order IV rule 5(1) of the High Court Civil Procedure Rules of Eastern Nigeria (Cap.61). It reads:-

“If it shall appear to the court, at or before the hearing of a suit, that all persons who may be entitled to or who claim some share or interest in the subject matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court may  adjourn the hearing of the suit to a future day, to be fixed by the court, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be.”
(Underlining mine.)

As I had indicated earlier on in this judgment, it was the Anambra State Government that raised the constitutional issue of the validity of the Rivers State Edicts 15 and 17 of 1972 as a defence to the appellant’s claim. The said government also appeared by counsel in the case up to the termination of the proceedings in the Court of Appeal on 5th June, 1980. The test as to whether there should be joinder of a party in a suit is based on the need to have before the court such parties as would enable it to “effectually and completely adjudicate upon and settle all the questions” in the Suit. This was the view expressed by this court in Uku & Ors. v. Okumagba & Ors. (1974) 3 S.C. when Udoma, J.S.C., at page 60 of the report stated thus:-

“The respondent is no longer a necessary party in that capacity for the purpose of enabling the court ‘effectually and completely to adjudicate upon and settle all the questions’ in the suit. The words which we have underlined are the key words of the provisions of rule 10(2). Our view in this respect is in accord with the views of the English Courts in their interpretation and application of this particular rule. That was certainly the view expressed by Devlin, J., (as he then was) in Amon v. Raphael Tuck & Sons Ltd. (1956) 1 All ER 273 when, after a review of a number of authorities, he said at p.279.

‘Accordingly, this case, in my view, really turns on the true construction of the rule, and, in particular, the meaning of the words ….. ‘whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter.–‘

The beginning and end of the matter is that the court has jurisdiction to join a person whose presence is necessary for the prescribed purpose and has no jurisdiction under the rule to join a person whose presence is not necessary for that purpose.”

In the above case this court was dealing with the provisions of Order 7 rule 10(2) of the High Court (Civil Procedure) Rules, 1958 applicable in the then Mid-Western State (now Bendel State) the wording of which is similar to Order 4 rule 5(1) of the High Court Rules, 1956 of Eastern Nigeria with which this case is concerned.

As the Edicts in issue in this case were promulgated by the Rivers State Government it seems to me beyond argument that that government is a necessary party in the proceedings for the purpose of enabling the court effectually and completely to adjudicate upon and settle all the questions in the suit.

Is non-joinder of the Rivers State Government fatal to the proceedings

As I had already indicated in this judgment, it was the respondent that brought in the issue as to the validity of Edicts 15 and 17 of 1972 as defence. The appellant then joined issue with the respondent in its reply to show that the said edicts are void for inconsistency or that they were made in bad faith. The issue of bad faith which would require evidence was not seriously argued before us. The question of unconstitutionality is another matter; it does not require any evidence. All the facts needed by the court to arrive at a decision were before it and, in any case, are matters which the court is entitled to take judicial notice of.

This matter of joinder also has another dimension. When this appeal came before us, we invited the Attorneys-General of both Anambra and Rivers States to come before us and address the court as amici-curiae in view of the important issues of law involved. Neither State honoured the invitation of the court. While the Rivers State maintained studied silence, the Anambra State sent a reply indicating that its Attorney-General was out of the country on State duties while the Legal Adviser who had been dealing with the case was bereaved. The utter non-chalance exhibited by these two States over this matter cannot, in my view, be too strongly condemned. The result was that we were completely deprived of the benefit, if any, of the arguments that these two States would have placed before us in this matter. As the requirement of the Latin maxim “audi alteram partem” was met in this case, I am unable to hold that this action should fail for non-joinder of the Rivers State.

Are Edicts No. 15 and 17 of 1972 void for inconsistency

It is an accepted canon of interpretation of statutes that any law which seeks to deprive one of his vested proprietary rights must be construed strictly against the law-maker. See Bello v. The Diocesan Synod of Lagos – East Central State of Nigeria Law Reports  (1973) Vol. 3 Part 1 p.330, where Coker, J.S.C., delivering the judgment of this court stated thus at p.344 of the report:-

“The principle on which the courts have acted from time immemorial is to construe “fortissime contra proferentes” any provision of the law which gives them extraordinary powers of compulsory acquisition of the properties of citizens. In Re Bowman, South Shields (Thames Street) Clearance Order, (1931) (1932) 2 KB 621 at 633, Swift,  J., described the position thus:-

‘When an owner of property against whom an order has been made under the Act comes into this court and complains that there has been some irregularity in the proceedings and that he is not liable to have his property taken away, it is right, I think, that his case should be entertained sympathetically and that a statute under which he is being deprived of his right to property should be construed strictly against the local authority and favourably towards the interest of the applicant, in as much as he for the benefit of the community is undoubtedly suffering a substantial loss, which in my view must not be inflicted upon him unless it is quite clear that parliament has intended that it shall.’ ”

Coker, J.S.C., continued thus:-

“In such cases the provisions of the statute are read dispassionately and effect is given to the spirit and intent of the legislation.”

Edict No. 15 of 1972 under which the Rivers State Government cancelled the appellant’s lease reads as follows under Section 3(1):-

“Notwithstanding the provisions of the State Lands Law or any other law in force in the State and subject to the succeeding provisions of  this Edict, the Military Governor may by notice published in the Gazette cancel the lease of any plot of State land required for a public purpose and upon the publication of such notice, such plot shall thereupon revert to the State.”

Implicit in the above provision is the essential fact that the plot of State land to be acquired is already State land. The law dealing with acquisition of land for a public purpose relevant to this case is the Public Lands Acquisition Law of Eastern Nigeria (Cap. 105). This law according to its tenor deals with the acquisition of native or virgin land from a native community by government for a public purpose upon payment of compensation. Land acquired under the provisions of this law becomes State land. Section 3(2) of Cap. 105 is pertinent in this regard, it reads:-

“Where any lands are or have been acquired under the provisions of this law such lands shall, to the extent of the estate or interest acquired therein, be and be deemed to have been State lands for the purposes of the State Lands Law from the date of such acquisition and may be dealt with in accordance with the provisions of that law notwithstanding that the purpose for which such lands were acquired has failed or that all or any of such lands are no longer required for the purpose for which they were acquired or are being used.”

It is common ground in this case that the appellant holds a lease for 99 years under the State Lands Law (Cap. 122) Laws of Eastern Region of Nigeria. (See Exhibit C in this case.) The question that immediately arises is whether the lessee of a State land can under the said State Law have his leasehold interest revoked or cancelled as was done here ostensibly for a public purpose during the life of the lease The answer to the above is to be found in the State Law itself.

Section 6 of the State Lands Law imposes the following obligation on the lessor (i.e. the State):-

“(a)  Covenants by the lessor:-

(i)     that he has full power to grant the lease;
(ii)    that the lessee, paying the rent and fulfilling the conditions therein contained shall quietly hold and enjoy the premises without any interruption by the lessor or any person claiming under him except in so far as the laws in force for the time being in Eastern Nigeria may permit.”

Nowhere in the law is there a provision for cancellation. Section 22 of the Law which deals with the Resumption of Lands for Public Purposes spells out in clear terms the conditions governing such resumption. The said section can, by no stretch of the imagination, be interpreted to cover a case of cancellation in a lease which still has about 84 more years to run. What the Rivers State Government did is clearly in violation of the relevant provisions of Section 31 of the 1963 Constitution of the Federation.
Section 31(1) of the 1963 Constitution reads:-

“No property, movable or immovable shall be taken possession of compulsorily and no right over or interest in such property shall be acquired compulsory in any part of Nigeria except by or under the provisions of a law that:-

(a)  requires the payment of adequate compensation therefor; and

(b)  gives to any person claiming such compensation a right or access, for the determination of his interest in the property and the amount of compensation, to the High Court having jurisdiction in that part of Nigeria.

(2)  Nothing in this section shall affect the operation of any law in force on the 31st day of  March, 1958, or any law made after that date that amends or replaces any such law and does not:-

(b)  add to the purposes for which or circumstances in which such property may be taken possession of or acquired.”

What the Rivers State Government did was to add to the purposes of the provisions for resumption as laid down in Sections 22 and 23 of the State Lands Law by creating a right of out and out cancellation of the lease of what was already state land which had been acquired under the appropriate law for a public purpose. It was clearly an exercise in futility. The State Lands Law was being made to carry a burden it could not sustain.

It is pertinent here to note that the Rivers State Government as per Exhibits Q and S unilaterally purported to impose a compensation of N250,000 on the appellant and sought at the same time to deny him access to the High Court on the issue of compensation. This is also a flagrant breach of the relevant section of the Constitution herein-before set out.

I would accordingly rule that Edicts No. 15 and 17 and the  Cancellation Notice made in regard to the appellant’s properly, to wit: Rivers State Government Notice No. 412 of 26th day of September, 1973 are void, of no effect and unconstitutional as being inconsistent with the clear and mandatory provisions of Section 31 of the Constitution of the Federation of Nigeria, 1963. There is undoubted power in this court to declare null and void any Edict that conflicts with the provisions of the 1963 Federal Constitution.

See the decisions of this court. in Chief Ereku v. Governor Mid-Western State – (1974) 10 S.C. pp. 59-76 and Onyiuke v. Esiala – (1974) 10 S.C. pp. 77-90.
For the foregoing reasons, this appeal ought to succeed. The appeal is accordingly allowed and the judgment of the High Court of Anambra State holden at Enugu  (Umezinwa, J.), dated 16th January, 1978 and the judgment of the Federal Court of Appeal, Enugu, dated 5th June, 1980 together with the orders made therein as to costs are hereby set aside. The plaintiff/appellant herein shall have judgment on its claim:

(a)  for the sum of N270,000 being arrears of rent from 24th March, 1972 to 23rd March, 1977 for nine flats at the rate of N6,000 per annum per flat.

(b) for mesne profits for the period 24th March, 1977 to the date of this judgment for nine flats at the rate of N6,000 per annum per flat.

The respondent shall pay the appellant costs assessed at N500 in the High Court, N300 in the Federal Court of Appeal and N300 in this court.

M. BELLO, J.S.C.: I had the advantage of reading the judgment of my learned brother, Irikefe, J.S.C. I agree the appeal should be allowed in the terms stated in his judgment.

I also had the privilege of a preview of the judgments of my learned brothers, Idigbe and Eso, JJ.S.C. While I agree with the reasoning of Idigbe, JSC on the issue of pleadings, I am inclined to endorse the view of Eso, J.S.C on the issue of joinder of the Rivers State Government. I agree with Eso, J.S.C that the Rivers State Government ought to have been joined as a party in accordance with the provisions of Order IV rule 5(1) but for the reasons stated by him, I am also of the view that this is not a proper case to make an order for non-suit as was done in Alhaji Raji Oduola & Ors. v. John Gbadebo Coker & Ors. (1981) 5 S.C. 197 on account of the non-joinder.

C. IDIGBE, J.S.C.: I agree that this appeal be allowed. This being a matter which raises some Constitutional issues I consider it desirable to make some comments of my own. The history of these proceedings has been adequately recounted in the judgment about to be read by my learned brother, Eso, JSC that I think I can proceed at once with the points on which I would like to make additional comments of my own. My comments will be limited to the questions whether,

(1)    the Federal Court of Appeal (hereafter, referred to simply as “the Court of Appeal”) was right in holding that the issue of the validity of the Rivers State Edicts Nos. 15 & 17 of 1972 as well as the Legal Notice No. 412 of 26th September, 1973 which “cancelled” the appellants’ lease of the property which is the subject-matter of the claims in these proceedings cannot be pronounced upon in this action, because

(a)    the specific question was not (in the opinion of that Court) “distinctly raised” in the pleadings; and consequently no issue was joined by the parties hereto thereon; and

(b)    the Rivers State Government has not been made a party in this action

(2)    the Court of Appeal was right in rejecting the contention of the appellants that the Rivers State Edicts in question were each unconstitutional and void; and

(3)    the Court of Appeal was right in rejecting the contention of the appellants that, in any event, they are entitled to judgment on each of the items of the claims in their writ of summons.

JOINDER OF PARTIES

As I understand the decision of the Court of Appeal, the appellants were not entitled to a pronouncement on the validity of the Rivers State Edicts in question because the appellants failed to seek and obtain an order of court for joinder of the said Government; and, in any event, such a pronouncement cannot be made in the absence of the said Government. In other words, because this issue is relevant to part of the claims of the appellants, the claims must fail on the ground of non joinder of a party who – in the opinion of the Court of Appeal – is a necessary party. In support of its view, the Court of Appeal relies on the decisions in Amon v. Rapheal Tuck & Sons Ltd. (1956) 1 All ER 273 particularly at 279; and Chief A. O. Uku & Ors v. D. E. Okumagba & Ors (1974) 1 All NLR Part (1) 475. The relevant law on this matter, so it seems to me, is to be found in Sections 15(1) and 16 of the High Court Law of Eastern Nigeria Cap. 61 in Vol. IV of the Laws of Eastern Nigeria 1963 (applicable to these proceedings being the relevant law in Anambra State at all times material to the case in hand) and Order IV rule 5(1) of the High Court Rules of Eastern Nigeria Cap. 61 in volume IV of the Laws of Eastern Nigeria 1963 similarly, and for the same reasons as the foregoing, applicable to the proceedings under appeal; these read:

“15(1)  Subject to the provisions of this section and except in so far as other provision is made by any law in force in the Region, the common law of England, the doctrines of equity and the statutes of general application that were in force in England on the first day of January, 1900, shall, in so far as they relate to any matter for which the legislature of the Region is for the time being competent to make laws, be in force within the jurisdiction of the court.”

“16.  The jurisdiction vested in the court shall be exercised (so far as regards practice and procedure) in the manner provided by this Law and in any other written law or by such rules and orders of court as may be made pursuant to this Law or any other written law, and, in default thereof, in substantial conformity with the law and practice (sic) for (ignore the word “for”) observed in England in the High Court of Justice, on the thirtieth day of September 1960″ (Underlining and square brackets by me).

Order IV rule 5(1) reads:-

“If it shall appear to the court, at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject-matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court may adjourn the hearing of the suit to a future day, to be fixed by the court, and direct that such persons shall be made either plaintiffs or defendants in the suit as the case may be. In such case the court shall issue a notice to such persons, which shall be served in the manner provided by the rules for service of a writ of summons or in such other manner as the court thinks fit to direct; and on proof of the due service of such notice, the person so served, whether he shall have appeared or not, shall be bound by all the proceedings in the cause ……….” (Underlining by me).

I pause to observe straight away that no provision is made in this rule as to the consequences of non joinder of a necessary party or the right of an intervener (in any on-going or pending proceedings) to be joined on his own application. But the Supreme Court Practice Rules (in England) as amended up to and in use in 1959 provide in Order 16 rule 11 that:
“No cause or matter is to be defeated by reason of misjoinder or non-joinder of parties, and the court may in every cause or matter deal with the matter in controversy, so far as regards the rights and interests of the parties actually before it.

The court or a judge may, at any stage of the proceedings, either upon or without the application of either party, order that the names of any parties improperly joined, whether as plaintiffs or defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary to enable the court effectually  and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added……..” (see Halsbury Laws of England Vol. 30 3rd Edition or Lord Simonds Edition P.394 Paragraph 735).

It is my view that the provisions of Order 16 rule 11 Rules of the Supreme Court (England) (hereafter referred to as “R.S.C.”) are, by virtue of Sections 15 and 16 of the High Court Law Cap. 61. op cit, for purposes of the effect of non-compliance with Order IV rule 5 of the High Court Rules Eastern Nigeria aforesaid applicable to the suit under appeal. The questions which naturally arise are (1) whether the plaintiffs should (as the Court of Appeal in the matter in hand would appear to think) have had the Rivers State Government joined in this action or whether the court in the alternative should have made the relevant order for joinder of the said Government (2) whether, as the Court of Appeal appears to hold, the non-joinder of the said Government should defeat the plaintiffs’ (i.e. appellants’) claims and, in any event, prevent a pronouncement on the validity of the Edicts in question as well as the relevant Legal Notice for cancellation of the appellants’ lease of the property in question The cases on which reliance is placed by the Court of Appeal in giving answer in the affirmative to each of these questions are Amon v. Raphael Tuck (supra) and Uku v. Okumagba (supra). With the utmost respect to the Court of Appeal, while the case of Amon v. Tuck (supra) appears to support albeit obliquely the view they take of the issue raised in, and the answers they give to, the first question I have posed, that case certainly is not authority for giving an affirmative answer to the second question. The view of Devlin, J., in Amon v. Raphael Tuck (supra) comes to this: that “the test whether under R.S.C. Order 16 rule 11 the court had jurisdiction to add as defendant a person whom the plaintiff did not wish to sue was whether the order for which the plaintiff was asking in the action might directly affect the intervener  (i.e. the person proposed to be added as a party) by curtailing the enjoyment of his legal rights” (see (1956) 1 All ER 273 E – F, underlining by me). Later in his judgment Devlin, J., made observations which, to my mind, have important bearing on the second question which I posed earlier on; he said:-

“of course, whatever the object, it is the words of the rule that now govern the matter and it is true that the words ‘all the questions involved in the cause or matter’ are very wide. They are so wide that no one suggests that they can be read with some limitation. The limitation is not something that is left to be settled by the court in its discretion. It is there in the words of the rule, the person to be joined must be someone whose presence is necessary as a party. What makes a person a necessary party It is not, of course, merely that he has a relevant evidence to give on some of the questions involved; that would make him a necessary witness. It is not merely that he has an interest in the correct solution of some questions involved and has thought of some relevant arguments to advance and is afraid that the existing parties may not advance them adequately. That would mean that on the consideration of a clause in a common form contract many parties would claim to be heard and if there were power to admit any, there is no principle of discretion by which some would be admitted and others refused. The court might often think it convenient or desirable that some of such persons should be heard so that the court should be sure that it had found a complete answer, but no one would suggest that it is necessary to hear them for that purpose. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result and the question to be settled therefore must be a question in the action which cannot be
effectually and completely settled unless he is a party” (see Amon v. Raphael Tuck & Sons Ltd. (1956) 1 QB 357 at 380)

On the question of interveners as necessary parties, the following observations of Wilmer, J., in Miguel Sanchez & Compania S. L. v. Owners of the Result-Nello Simoni Ltd.; Third Party (a case usually referred to as “The Result”) (1958) Probate 174 at 179 cited with approval by this court in Uku v. Okumagba & Ors (1974) 1 All NLR Part 1 475 at 495 repays quotation; that passage reads:-

“the rule providing for the joinder of additional parties is R.S.C., Order 16, rule 11. It is not, I think, disputed that the third parties are entitled to the order sought only if they can bring themselves within the terms of that rule. Having regard to the terms of the rule, it appears to me that the questions to be determined on this summons are these. First, is the cause or matter liable to be defeated by the non-joinder of the third parties as defendants This, I think, means in effect: is it possible for the court to adjudicate upon the cause of action set up by the plaintiffs, unless the third parties be added as defendants Secondly, are the third parties persons who ought to have been joined as defendants in the first instance Thirdly, and alternatively, are the third parties persons whose presence before the court as defendants will be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter” (underlining by me).

Certainly, (1) each of the claims before the court can be decided effectually and completely without the need of bringing the government of Rivers State as a party. (2) Prima facie, each of the claims is a claim which the appellant qua plaintiff is entitled to pursue and which cannot, in any way, be said to be improperly constituted; none of the claims is for a declaratory relief. Accordingly, the government of Rivers State is not a party who in the language of rule 11 of Order 16 R.S.C. (under consideration) “ought to have been joined” in the first instance; in other words the government of the Rivers State is not a necessary party to the proceedings under appeal. In the circumstances, and with all respect to the Court of Appeal the answer given by that court to the second question earlier on posed by me, cannot in my respectful view be correct. Earlier, I said that the answer given by that court to the first question posed by me in the judgment which this appeal challenges – is only obliquely supported by the decision in Amon v. Raphael Tuck (supra) on which that court relies for its view that “the appellant is under a primary obligation to ask the court to join the Rivers State government which is a person likely to be affected by the result of this case to answer issues raised in the Reply filed and the submissions made on behalf of the appellant in order to be bound by all the proceedings in the cause.” The decision in Amon v. Raphael Tuck (Supra) is to the effect that “the test whether under R.S.C. Order 16 rule 11 the court had jurisdiction to add as a defendant a person whom the plaintiff did not wish to sue was whether the order for which the plaintiff was asking might DIRECTLY affect the intervener…….. by curtailing the enjoyment of his legal rights” and it further decided that the fact that an intervener might be commercially, as distinct from legally prejudiced by the result of an action to which he is not a party (i. e. INDIRECTLY affected by the result of the action) does not afford a ground enabling the court to order him to be added as a defendant against the wish of the plaintiff ((1956) 1 All E.R. 273 particularly at 281 letter I to p. 282 letter A). There is no question that, in the case in hand, it cannot be said that the Government of the Rivers State will be DIRECTLY affected by the  result of the action; undoubtedly the Government may be indirectly affected by the pronouncement which could be made, even if only obiter, on the Edicts Nos. 15 and 17 of 1972. It is, therefore, desirable to have the said Government joined as a party to the proceedings in order that it may be bound by the result and pronouncements therein; the question, however is whether the court can do so (i.e. have the Government of the State joined) under the rule now being considered especially in the face of the narrow construction given to it in Amon v. Tuck

However, the Court of Appeal (England) in Gurtner v. Circuit and Ors (1968) 2 QB 587 would appear to have taken a wider construction of Order 16 rule 11; they refused to follow the narrow construction which seeks to limit the class of interveners who may be joined, under the said rule, in pending actions to those who are to be directly (but not indirectly) affected by the result. I need only refer to a passage in the judgment of Diplock, LJ., (as he then was) where he said:

“I do not think the rules of natural justice depend upon a technicality as to the procedure by which the liability of a person who is bound to satisfy a judgment obtained by the plaintiff in ——– (an) —— action is enforceable. So long as it is legally enforceable against that person either directly by the plaintiff or indirectly by the Minister for the plaintiff’s benefit under such a contract as exists in the present case, the court has jurisdiction to add that person as a party and ought primarily to exercise its discretion by granting his application to be added.” (Underlining and brackets by me.)

Indeed, in Penang Mining Company v. Choong Sam (1969) 2 Malay Law Journal 52 PC (cited in the White Book 1976 Vol. (1) at p.181) the Privy Council treated Gurtner v. Circuit (supra) as having overruled Amon v. Raphael Tuck (supra) on this principal issue. Again, the Court of Appeal (England) repeated its view of rule 11 of Order 16 R.S.C. aforesaid in Re Vanderville’s Trusts: White v. Vanderville Trusts (1969) 3 AER 496 (hereinafter referred to as “the 1969 Vanderville Trusts Appeal”) particularly at 499 letter F-G-H where Lord Denning, MR., observed:

“The wide interpretation was adopted by this court in the recent case of Gurtner v. Circuit (supra). I know that there have been cases at first instance (such as Amon v. Raphael Tuck ….. and Fire Auto and Marine Insurance Co. Ltd.v. Greene (1964) 2A ER 741), when the rule has been given a narrow interpretation. But that narrow interpretation should no longer be relied on. We will in this court give the rule a wide interpretation so as to enable any party to be joined whenever it is just and convenient to do so. It would be a disgrace to the law that there should be two parallel proceedings  in which the self same issue was raised, leading to different and inconsistent  results……….Such different and inconsistent results are to be deplored and avoided. It can be done by bringing all parties before the court so as to have the issue finally decided between all of them and so that all be bound” (Underlining by me).

The House of Lords reversed the above decision of the Court of Appeal in Re Vanderville (see (1971) AC 912) and expressed the view that the rule order consideration is not open to the wide interpretation given to it by the Court of Appeal since such interpretation is, in the language of Viscount Dilhorne, “wholly unrelated to the wording of the rule.” (see (1971) AC at 932H to 933A but particularly at p.935 G – H per Viscount Dilhorne).

Since the decision of the House of Lords in Re Vanderville (supra) some addition, which to my mind can be usefully considered for adoption in all our local High Court Rules, has been made in 1971 by a sub-paragraph 2(b) (ii) being added to Order 15 rule 6(1) and (2) (a) 2(b) (i) (almost in pari materia with Order 16 rule 11 R.S.C. under consideration) which reads:

“(2)  At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either of its own motion or on application

(a)    xxx
(b)    order any of the following persons to be added as a party, namely
(i)     xxx
(ii)    any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter”
(Underlining by me).

This new sub-paragraph 2(b) (ii) cannot, in view of the limitation by Section 16 of the High Court Law (aforesaid) to the use of the practice and procedure (to 1960) in England, apply to the proceedings under appeal. However, it seems to me that by this additional provision “statutory sanction” has thus been given to the decisions of the Court of Appeal (England) in Gurtner v. Circuit (supra) and the 1969 Vanderville Trusts Appeal (see (1969) 3 All ER 496). The substance of the new paragraph 2(b) (ii) of the R.S.C. (England) is, however, contained in that part of Order IV rule 5(1) of the High Court Rules Eastern Nigeria which is expressed in the phrase, “who may be likely to be affected by the result……. The conclusion which I have reached, therefore, is that the Government of Rivers State is not a necessary party to these proceedings since each of the claims in these proceedings can be adequately pronounced upon without the Government of Rivers State being made a party – but (applying the decisions in these two cases to Order IV rule 5(1) High Court Rules, Eastern Nigeria) it is desirable that the said Government should be made a party to these proceedings so that they should be bound by the pronouncement by the court in respect of the Rivers State Edicts aforesaid; and on the authority of Gurtner v. Circuit (supra) Re Vanderville (1969) 3 All ER and Order IV rule 5(1), High Court Rules, Eastern Nigeria, the trial court in these proceedings not only has the necessary power, but should also have considered it “just and convenient”, to bring that Government as an intervener even without the consent of the appellants. The appellant, however, are not bound by virtue of Order IV rule 5(1) aforesaid to bring in the Rivers State Government as a party by an application to that purpose. That, however, leaves for decision the other question whether the appellants should lose their claim on the ground of non-joinder of the said Government I will now deal with that question.

The Rule (Order 16 rule 11) considered in the preceding paragraph prevents an action being defeated on the ground of mis-joinder or non-joinder of parties; in addition, it provides for necessary amendments in respect of parties to an action being made. Accordingly, where an action appears to the court to be defective for want of parties, it is the duty of the court under this rule to order that the essential parties be added; this is because “it is of the essence of the procedure since the Judicature Act to take care that an action shall not be defeated by the non-joinder of the right parties” (see: Van Gelder Apsimon & Co. v. Sowerby Bridge United District Flour Society (1890) 44 Ch. D. 374, particularly at 394 per Bowen, LJ). That was a case in which the court held that if it had been necessary to have the mortgagee before the court, it would not have been right to dismiss the action – a claim for infringement of a registered patent – on the ground of his (the mortgagee’s) absence from the proceedings (he not having been made a party) but the Court ought to have made him a party under rule 11 of Order 16 R.S.C. (aforesaid). As I stated earlier on, although desirable to add the Government of Rivers State as a party in this action it is not a necessary party because each of the claims in this action can be determined without its participation as a party in these proceedings. Since the Judicature Acts of 1873 – 1875 came into force “pleas in abatement” are no longer allowed and the powers of the courts as to joinder, mis-joinder and non-joinder of parties are to be exercised according to the principles of the old law on the subject; the exercise of the powers being discretionary under rule 11 of Order 16 aforesaid, the court may refrain from giving judgment on a claim before it until a necessary party has been joined in the proceedings. But where, as here, there has not been a failure on the part of the plaintiff (the appellant herein) to add a necessary party, the court may allow the action to proceed to judgment. So where the first paragraph of a demurrer sets up by way of defence, non-joinder of a necessary party and alleges that the plaintiff was a feme covert at the time of bringing the action. Cave, J., held that there is no defence to the action. (See: Abouloff v. Oppenheimer (1882) 30 W.R. 429) I find it difficult, therefore to subscribe to the views of their Lordships of the Court of Appeal that the claims of the appellants must fail on the ground of non-joinder of the Government of Rivers State as a party to the action in the High Court. I, however, am of the view that it is desirable that the said Government should have been brought into the proceedings, now on appeal under the principles by which the said rule has been construed (in the 1969 Vanderville Trusts (supra) and Gurtner v. Circuit (supra) i.e. that the rule should be given a wider (not a narrow) construction. It is also on this principle that I have come to the conclusion that where in proceedings (such as the one in hand) it becomes necessary for the court seised of the matter to rule, even if only incidentally to the main point or points for decision in the claims therein, on the validity of a law of the Federal Government or of the Government of the component States of the Federation, that court ought, in exercise of its discretionary powers on the question of joinder,  mis – joinder or non-joinder of parties, to bring into the proceedings (i.e. as one of the parties thereto) the relevant Government before adjudicating on the claims before it.

As was pointed out by my learned brother in the lead judgment in this case, sufficient opportunity for intervention was given to the Government of Rivers State which it, not only failed to take advantage of but, indeed, completely ignored.

PLEADINGS:
In the lead judgment of the Court of Appeal, the point was made that the pleadings did not raise the issue of validity of the Rivers State Edict in question. “…Can it be said that the issues about the validity of Edicts Nos. 15 and 17 of 1972 and the Gazette Notice dated 26th September, 1973 …..were distinctly raised for the defendant to face or (that) the question of the acquisition by the Government a matter intended to be challenged in this suit” that was the question on which the decision, of the Court of Appeal, that it was not open to the learned trial Judge to go into the issues of the validity of the said Edicts and the legal propriety of the compulsory acquisition of appellant’s property was based. With much respect to the Court of Appeal the relevant High Court rules applicable to these proceedings do not, in my respectful view, justify the said conclusion. Order 37 rule 6 of the relevant High Court Rules (Cap. 61 of the 1963 edition of the Laws of Eastern Nigeria Vol. IV) requires only that: “every pleading shall contain a statement of all the material facts on which the party pleading relies …….”. The view taken by the Court of Appeal on this issue makes me think – in the words of Lord Denning MR., in Re Vandervill’s Trusts No.(2) (1974) 1 Ch. 269 at 321- that we are back to the “old days before the Common Law Procedure Acts 1852 and 1854 when pleadings had to state the legal result; and a case had to be lost on the omission of a single averment.” All that, according to Lord Denning MR., “had been swept away.” “It is sufficient for the pleader to state the material facts. He need not state the legal result ….. He can present, in argument, any legal consequence of which the facts permit.” Therefore, if once again I may quote from the decision in the Vanderville Trusts (No. 2) (supra), it follows “that the question for decision in these proceedings is whether (learned counsel for the plaintiffs) made submissions before (the Court of Appeal) as to legal consequences which had not been set out” (in the pleadings). (see (1974) 1 Ch. at 324 per Lawton, LJ., (brackets and contents as well as underlining supplied by me). Undoubtedly the practice of the courts on this issue generally is to consider the legal result of the facts set out in the pleadings though the particular legal result alleged in argument had not been set out therein (i.e. the pleadings) except in cases where in order to ascertain the validity of the legal result urged in argument, it would become necessary to investigate new and disputed facts which have not been gone into at the trial. (See also Lever Brothers Ltd. v. Bell (1931) 1 KB 557 particularly Scrutton, LJ., at 582-583).

In the case in hand, the respondents in their Statement of Defence alleged that appellants’ lease of the property in question was cancelled by a notice published in the State Gazette as No. 412 on 26th September, 1973; they further pleaded, that, at the trial, they would contend that by the cancellation of the said lease, ownership of the property had “reverted to the Rivers State Government in accordance with the Rivers State Edicts Nos. 15 and 17 of 1972” (paragraphs 5 and 6 of the Statement of Defence refer). In their reply to the Statement of Defence filed with leave of  the court of trial, the appellants pleaded that the said notice of cancellation of the lease was irregular, vindictive, mala fide and an abuse of power; they further pleaded that the Government of the Rivers State did not need the property, and never used it, for any public purpose; and they concluded by stating that they would rely on a number of correspondences touching on the matter. (Paragraph (1) of the reply refers). In any event, in one of the letters from the appellants to the respondents, admitted in evidence without any objection by the respondents as Exhibit “R”, the appellants stated in paragraph (2) that they did not “accept the validity of the public notice purported to have been made under the Rivers State Government Notice No.412 under Edict No. 15 of 1972 on which the purported cancellation and acquisition of the above property was based”; and they contended in the said letter that as far as they were concerned, the ownership of the property in question was still vested in them. Again, in one of the letters to the appellants from the respondents admitted in evidence as Exhibit “S”, the respondents stated in paragraph (2) thereof that their “law officers have again confirmed that the acquisition order by which the property was acquired for public purpose is valid and that the property is in fact being used for public purpose.” There was, therefore, in my view enough justification for the court of trial to entertain argument on the question of the validity of both the Edicts in question and the legal notice based thereon; the Court of Appeal was, in my very respectful view, very much in error in holding that it was not open to the learned trial Judge so to do. Validity of the Edicts Nos. 15 and 17 and the Legal Notice No. 412 of 26th September, 1972 Based on the Edicts Aforesaid:

The property in question in the case in hand is State land. It was acquired originally under the Public Lands Acquisition Law applicable to Eastern Nigeria to which the Rivers State formerly belonged. The relevant Law under which it was acquired is the Public Lands Acquisition Law which came into force in 1917 and which is set out as Cap. 105 in Vol. VI of the 1963 Edition of the Laws of Eastern Nigeria. The predecessors in office of the Government of Rivers State having acquired a large area which includes the property in question in this suit laid out the area into plots; one of these plots – the property in question – was leased to the appellants. Lands acquired under Public Lands Acquisition Law are from the date of such acquisition deemed., to be State lands for purposes of the State Lands Law, and are to be dealt with in accordance with the provisions of the State Lands Law (Section 3(2) of the Public Lands Acquisition Law Cap. 105 aforesaid refers). State lands which are the subject of leases to citizens under the State Lands Laws are governed by the express covenants in such leases and/or implied covenants under State Lands Laws. Section 16 of the relevant State Lands Law, Cap. 122 in Volume 7 of the 1963 edition of Laws of Eastern Nigeria (hereinafter referred to as “Cap. 122 aforesaid”), applicable to the proceedings in this appeal specify the conditions under which a lease under that law can be forfeited; when so forfeited and the conditions precedent to re-entry on behalf of the State have been complied with, then the Principal State Land Officer may on behalf of the State re-enter the premises which form the subject-matter of such lease. In no other circumstances is re-entry into such premises allowed under the relevant State Lands Law.

However, Section 23 of Cap. 122 aforesaid (the relevant State Lands Law) provides for resumption of State Lands for public purposes. An earlier section (i.e. Section 22) provides for right of entry by the State for the purposes of setting up poles on and carrying electric lines on such lands as well as laying sewers, drains, water pipes or electric lines therein; the latter section (i.e. Section 22) provides for resumption for the purposes of making “roads, railways, tramways, canals, water channels or trigonometrical stations or any other public undertaking …….” It is my view that the expression “any other public undertaking in this section (i.e. Section 23), must be construed ejusdem generis with the special and specific purposes set out earlier in the relevant clause in the section, and cannot be lawfully construed to include resumption of State Lands for such use as is claimed by learned counsel on behalf of the respondents (as defendants) in the court of trial (in this case, learned counsel claims that the State has a right to “re-acquire the plot for use in carrying on the business of a Restaurant or Hotel”).

Now, the State Lands (Cancellation of Leases) Edict No. 15 of 1972 promulgated by the Government of the Rivers State came into force on 16th October, 1972; Section 3(1) thereof reads:

“3(1)  Notwithstanding the provisions of the State Lands Law or any other law in force in the State and subject to the succeeding provisions of this Edict, the Military Governor may by notice published in the Gazette cancel the lease of any plot of State Land required for public purpose and upon the publication of such notice, such plot shall thereupon revert to the State” (Underlining by me for emphasis).

Sections 4(1) and 5 of the said Edict read:-

“4(1)  There shall be paid to the lessee of the State Land reverting to the State under the provisions of Section 3(1) of this Edict such compensation as may be agreed upon or determined in accordance with Section 5 of this Edict.

5.     The relevant provisions of the Public Lands Acquisition Law relating to the assessment and award of compensation shall apply mutatis mutandis to plots of State Land reverting to the State under the provisions of this Edict.”

It should be mentioned here that Section 2 of the said Edict defines Public purpose thus:

“Public purpose has the same meaning as is assigned to it in Section 2 of the Public Lands Acquisition Law.”

Section 31 (2) of the 1963 Constitution of the Federation (Act No. 20 of 1963) which was in force at all times relevant to the case in hand provides as follows:

“31(2)  Nothing in this section shall affect the operation of any law in force on the 31st day of March 1958 or any law made after that date that amends or replaces any such law and does not

(a)    add to the kinds of property that may be taken possession of or the rights over or interests in the property that may be acquired;

(b)    add to the purposes for which or circumstances in which such property may be taken possession of or acquired;” (Underlining by me).

Earlier, sub-section (1) to Section 31 of Act No. 20 of 1963 provides that no property, movable or immovable, shall be taken possession of compulsorily and no right over or interest in such property shall be acquired compulsorily in any part of Nigeria except by or under the provisions of a law that (a) requires the compensation therefor and (b) gives the person claiming such compensation a right of access to the High Court for determination of the amount of compensation. I pause to observe that the Constitution relevant to the claims in this action is the Constitution (Suspension and Modification) Decree of 1966 hereafter referred to simply as “Decree No. (1) of 1966”); that Constitution retained in force Section 31 of Act No. 20 of 1963. As earlier on stated, the Public Lands Acquisition Law Cap. 105 applies to acquisition of native community lands or, rather, all lands belonging to members of the Nigerian Community which have not been previously acquired (i.e. which are being acquired by the State for the first time) and the “public purposes” for which such lands may be acquired are clearly set out in Section 2 of the said Cap. 105. The State Lands Law, Cap. 122, aforesaid is intended to govern the administration of all State lands which include, by virtue of Section 3(2) of Cap. 105, all lands acquired under Cap. 105 such as the property which is the subject-matter of the case now on appeal before us. Section 23 of the State Lands Law Cap. 105 aforesaid, without doubt, limits the circumstances under, and the manner by, which the State may resume ownership of State land for public purposes; and Sections 16 and 22 thereof clearly limit the circumstances under, and the manner by, which the State may re-enter State lands which are under a lease from the State to a citizen such as the lease with which we are concerned in this appeal. There is, therefore, no doubt that what the Government of Rivers State intends to realise by Sections 2, 3(1) and 5 of Edict No. 15 of 1972 is the extension or addition “to the purposes for which” and “the circumstances in which” property may be dealt with other than as prescribed by law (i.e. Cap. 105, and Cap. 122 of the 1963 edition of the Laws of Eastern Nigeria both of which were – as required by Section 31(2) of Act No. 20 of 1963 – in force on 31st March, 1958), as well as the addition to, or extension of, the kinds of property which may be taken possession of “compulsorily” or “the rights over or interests in property which may be acquired” compulsorily. (See sub-Sections (2) (a) and (b) of Section 31 of Act No. 20 of 1963 as preserved in Decree No. (1) of 1966 refers.) There is no doubt whatsoever that such exercise as was carried out in the said Edict No. 15 of 1972 and the amendment carried out in Edict No. 17 of 1972 are clearly in conflict with the provisions of sub-paragraphs (a) and (b) of sub-section (2) of Section 31 of the 1963 Constitution of the Federation Act No. 20 of 1963 as modified by Decree No. (1) of 1966. In the event, both Edicts (i.e. Nos. 15 and 17 of 1972 and the Legal Notice No. 412 of 26th September, 1972 based thereon) are unconstitutional and invalid each being null and void.

CHALLENGE ON THE VALIDITY OF EDICT INCIDENTALLY IN THE COURSE OF PROCEEDINGS:

It only remains for me to consider the contention which was made before the Court of Appeal and the court of trial that it was not competent for the court of trial to proceed to examine and pronounce on the validity of these Edicts in the present action since the claim was not one in which the validity of these Edicts had been directly challenged; the issue arose only incidentally in the course of examination of the principal claims before the court, and in the circumstances, it being a constitutional issue affecting the Government of Rivers State which was not a party to the proceedings it was wrong – so it was contended on behalf of the respondents – for the learned trial Judge to entertain the legal point and pronounce upon it. The matter may be looked at from this point of view: is a court bound to administer an invalid law Is a court cognisant of the fact that it has no jurisdiction to entertain a specific or particular claim in any proceeding right  to entertain the same Will it be right for it to proceed with an exercise which is bound to be futile It is, for instance, well known that where a court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing (see Attorney-General v. Lord Hotham (1827) 3 Russ 415; also Halsbury Laws of England Vol. 10  4th Edition Para. 715). On the assumption that a law – the validity of which is challenged even if only incidentally in the course of examination of the principal claims before a court – is, indeed, invalid, would it be right for that court (knowing and believing that the true legal position is that the particular law in issue is, invalid) to proceed nonetheless to adjudicate on the principal claims well knowing that its final decision upon the principal claims, based as they are on the invalid law, will amount to nothing I should think not. Provided the particular court (such as the trial court in these proceedings) has the primary jurisdiction to pronounce on the question of the validity of the particular law, it seems to me that the court has in the circumstances a duty to reach a decision on the validity of the particular law before proceeding to conclusion or adjudication on the main claims; and, indeed, in some cases it may become unnecessary to proceed with the principal claims as soon as the court reaches the decision that the law on which the claims are pivotted is indeed null and void. In any event, where, as here, the Fundamental Right of the subject under the Constitution is affected by a particular law – such as that under consideration in the case in hand – which seeks to derogate from the limited circumstances when the interest of the subject in a parcel of State land may lawfully be abrogated or terminated, it seems to me that it is open to a court of law and, indeed, imperative for the court, if called upon so to do, to investigate and pronounce on the validity of such particular law at any stage of the proceedings before it. In this connection, I gratefully adopt the view of Fatayi-Williams, CJN., when he said in Sofekun v. Akinyemi and Ors (1980) 5-7 S.C.1 at 20 – 21 that “it should be possible for any person who complains about an alleged infringement of any of his Fundamental Rights as entrenched in our Constitution, to canvass the issue of such infringement at any stage of any court proceedings, whether in the trial court or on appeal” (Underlining by me).

My learned brother Eso, J.S.C., has already dealt fully with the question of mesne profits which the respondents are liable to pay to the appellants and I do not intend to go over the grounds as I fully agree with his views and statements thereon.

This appeal must be and it is hereby allowed; and I fully endorse the orders proposed in the judgment of my Lord, Eso, J.S.C., and the order as to costs in the judgment of my Lord, Irikefe, J.S.C.

A. O. OBASEKI, J.S.C.: The claim filed by the plaintiff/appellant against the defendant/respondent was a simple claim of arrears of rent or as set out “N342,000 being the amount due to the plaintiff from the defendant for the use and occupation by the defendant of the plaintiff’s property known as and called Plot A/42 Diobu G.R.A., Port Harcourt for the period 24th March, 1972 to 23rd March, 1977 inclusive and for mesne profits at the rate of N10,000 per flat from the 24th March, 1977 until judgment”

There were 9 flats and judgment was delivered by Umezinwa, J., on 16th June, 1978 for the sum of N81,000 for the 9 luxury flats for the period of 18 months at the originally agreed rent of N6,000 per annum.

The learned trial Judge limited the period of award to 18 months (from 24th March, 1972 to 25th September, 1973) following his declaration of the validity of the State Lands (Cancellation of Leases) Edict No. 15 of 1972 and the subsequent cancellation of the plaintiff’s lease by the Military Governor of the Rivers State on 25th September, 1973 although he said:

“If the plaintiff’s action has been for a declaration that the State Lands (Cancellation of Leases) Edict No. 15 of 1972 promulgated by the Rivers State Government and the subsequent cancellation of the plaintiff’s lease are null and void, I would have held that I have no jurisdiction, the proper venue being the High Court of Rivers State ……… The validity of the Edict and the cancellation of the plaintiff’s lease merely arose as a defence. This issue I can competently deal with for if the Edict is unconstitutional, null and void, I would have ignored it as not existing at all and proceeded to determine the case without formally declaring the Edict null and void.”

Having by implication declared the Edict No. 15 of 1972 of the Rivers State constitutional and valid to deprive the plaintiff/appellant of his proprietory rights as from 25th September, 1973, the plaintiff/appellant has strenuously contended that the Edict is unconstitutional, null and void and could not effectively deprive him of his leasehold property rights in the 9 flats in respect of which he claimed arrears of rents and mesne profits.

The plaintiff/appellant’s appeal to the Federal Court of Appeal was unsuccessful for the reasons stated by Ademola, J.C.A., in the last two paragraphs of his judgment with which Phil-Ebosie, J.C.A., and Aseme, J.C.A., concurred. The learned Justice said:

“It is my view that the appellant in this case is under a primary obligation to ask the court to join the Rivers State Government which is a person likely to be affected by the result of this case to answer the issues raised in the reply filed and submissions made on behalf of the appellant in order to be bound by all proceedings in the cause; Amon v. Raphael Tuck and Sons Ltd. (1956) 1 All ER 273 at 279; Chief A. O. Uku & 4 Ors. v. D. E. Okumagba & Ors. (1974) 3 S.C. 35, 60. In consequence of the non-joinder of the Rivers State Government no pronouncement could be made as to the validity of the Edict, the Gazette Notice or that any of the instruments of the acquisition was made in bad faith or a naked exercise of a show of power.

The grounds of appeal criticising the learned trial Judge for upholding the Edict and the Gazette Notice would in my opinion fail for reasons I have outlined above. There is also not much that could be made of the ground of appeal criticising the judicial notice taken of the fact that the defendant company is a limited liability company wholly owned by the three governments of Eastern States, although the argument of counsel on that point is technically sound.

In this appeal there was no cross-appeal by the respondent on the issue of the amount awarded to the appellant by the learned trial Judge. The conclusion is that the appeal fails and it is dismissed.”

In other words, the appeal failed mainly on the issue of joinder, i.e. of failure to join the Rivers State Government.

The questions for determination set out by the appellant’s counsel in appellant’s brief of argument filed in this court deal with joinder of parties and the validity of Edicts 15 and 17 of 1972.

1.     Joinder of Parties: The issue raised on joinder is whether

(i)     the plaintiff should have applied to the High Court to join the Rivers State Government as a party to this action before it could properly raise the issues concerning the validity of

(a)    Edicts No. 15 and 17 of 1972

(b)    Gazette Notice dated 26th of September, 1973; and
(c)    the acquisition of the property by the Rivers State Government

which were not distinctively raised on the pleadings before the High Court.

(ii)    If the answer to question 1(i) is in the affirmative, the question arises whether the Federal Court of Appeal should have dismissed the appeal without making an order striking out the case or should have allowed the appeal and directed a retrial with direction that all proper parties should be joined.

2.     The issue of the validity of Edicts No. 15 and 17 of 1972 raises the question:

(a)    whether Edicts No. 15 of 1972 and No. 17 of 1972 are void on the ground that they were made in bad faith by the then Governor of Rivers State;

(b)    whether the aforesaid Edicts were also void on the ground that they are inconsistent with the Constitution of the Federation 1963 as modified by the Decrees of the former Federal Military Government.

Although not raised before us, the issue of the propriety of a State court pronouncing on the constitutional validity of the law of another State gave me some disquiet initially. The issue did not come up directly but arose from the defendant’s contention that plaintiff ceased to be owner of the property in 1972 by reason of Edict No. 15 of 1972. As the claim before the Anambra State High Court was a simple claim of arrears of rent and mesne profits or money for use and occupation, that court had jurisdiction to examine and give adequate consideration to the defence.

On the issue of joinder, I do not think the duty devolves on the plaintiff to add the Rivers State Government as a party to these proceedings having regard to the claim before the court. If the joinder would enable the defendant/respondent establish its defence, the onus of seeking joinder devolves on him. In my view, it was unnecessary for the plaintiff/appellant to apply to join the Rivers State Government to effectually determine the question of the indebtedness of the defendant/respondent before the court. The defendant/respondent could have applied but as there was no averment in the statement of defence that it was the tenant of the Rivers State Government or that it had been paying rent to the Rivers State Government, the necessity for joinder does not really arise. The defence was probably meant to initiate proceedings between Rivers State Government and the appellant in the appropriate competent court and compel the High Court, Enugu to apply the doctrine of abstention and defer adjudication.

Having admitted paragraphs 4 to 10 of the Statement of Claim by its paragraph 3 of the Statement of Defence, the defendant was estopped from denying the title of its landlord and if it seriously contended the loss of title of the landlord, the onus was on it to prove it. To discharge that onus it must establish the constitutional validity of Edict No. 15 i.e. State Lands (Cancellation of Leases) Edict, 1972.

In view of its dedication to the course of justice, this court invited the Attorney-General of the Rivers State Government as amicus curiae to address it on the desirability of being added as a party either as a matter of law or of practice before the court can proceed to judgment but nothing was heard. The question may be asked: When is joinder desirable

Order 4 rule 5 of the High Court Rules Cap. 61 Laws of Eastern Nigeria 1963 appears to be the applicable rule governing joinder. The relevant portion of the rule reads:

“If it shall appear to the court at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit, or who may be likely to be affected by the result have not been made parties, the court may adjourn the hearing of the suit to a future date, to be fixed by the court and direct that such persons shall be made either plaintiffs or defendants in the suit as the case may be………………….”

The facts indicate that the Hotel Presidential Limited the respondent herein is a limited  liability company carrying on business as hotel proprietors with its Head Office situate at the Independence Layout Enugu. This averment in paragraph 2 of the Statement of Claim was admitted in paragraph 1 of the Statement of Defence.

It is true that the defendant averred that appellant ceased to be owner of Plot A/42 of Diobu G.R.A. Port Harcourt and that the defendant ceased to be the tenant of the plaintiff on 16th day of October, 1972 in paragraphs 2, 4 and 5 of the Statement of Defence but the reply denied this and demanded strict proof.
The defence offered no evidence. There is no evidence that it is a tenant of the Rivers State Government in respect of the property. Where does the Rivers State Government come in If the government is joined as defendant and the plaintiff succeeds in his claim will the Rivers State Government be damnified to pay the rent Will justice demand that the government be made liable to pay the arrears of rent of mesne profits claimed I think not.

On the principles elaborated in the cases of Lajumoke v. Doherty (1969) 1 NMLR 281 and Alhaji Raji Oduola & Ors. v. John Gbadebo Coker & Ors. (1981) 5 SC. 197, it was unnecessary but desirable either in practice or in law to add the Rivers State Government.

The question whether the High Court of Justice Anambra State has jurisdiction in the matter was obliquely raised. In so far as the defendant’s registered head office is still at Enugu, the defendant is definitely within the jurisdiction of the High Court of Anambra State, Enugu. On the question whether the learned trial Judge has jurisdiction to enquire into the validity of the Rivers State Edict, i.e. State Lands (Cancellation of Leases) Edict 1972 No.15, the answer that it has no jurisdiction simpliciter can be found in Section 4 of Decree No. 32 of 1975 Constitution (Basic Provisions) Decree which reads: “No question as to the validity of this or any other Decree or of any Edict shall be entertained by any court of law in Nigeria” but by virtue of Section 1 subsections (3) and (4) of Decree No. 32 of 1975 the learned trial Judge has jurisdiction to enquire whether the Edict was inconsistent or in conflict (1) with the Constitution of the Federation 1963 or (2) with any law validly made by Parliament before 16th January, 1966 or having effect as if so made or made by the Federal Military Government on or after 16th January, 1966 and to regard it as void to the extent of its inconsistency. More expressively, subsections (3) and (4) Section 1 of Decree No. 32 of 1972 reads:

Sub-section (3): “Subject to subsection (2) above and to the Constitution of the Federation, the Military Governor of a State shall have power to make laws for the peace, order and good government of that State.

Sub-section (4): “If any law –

(a)     enacted before 16th January, 1966 by the legislature of a Region, or having effect as if so enacted, or

(b)     made after that date by the Military Governor of a Region or State is inconsistent with any law
(i)      validly made by Parliament before that date or having effect as if so made, or

(ii)     made by the Federal Military Government on or after that date the law made as mentioned in paragraph (i) or (ii) above shall prevail and the regional law, a State law shall, to the extent of inconsistency be void.”

See also Senator Adesanya v. President of Nigeria (1981) 2 NCLR 358; (1981) 5 S. C. 112  per Idigbe, JSC., at pages 386-387.

I am not prepared to accept the contention that the Edict is invalid on the ground that its promulgation is in bad faith. That ground was not open to the plaintiff at the time the question was raised. Section 4 of Decree 32 of 1975 expressly deprives any court of law of jurisdiction to so declare.

But it is my opinion that the Edict is in conflict or inconsistent with the express provision of Section 31(1) and (2) of the 1963 Constitution and the State Lands Law Cap. 122 and void. See Chief D. O. Ereku v. Military Governor of Midwestern State of Nigeria & Ors.  (1974) 1 All NLR 163, at 169. Section 31(1) and (2) of the 1963 Constitution of the Federation reads:

“(1)  No property, movable or immovable, 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 by or under the provisions of a law that

(a)    requires the payment of adequate 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 the High Court having jurisdiction in that part of Nigeria.

(2)    Nothing in this section shall affect the operation of any law in force on the thirty-first day of March, 1958, or any law made after that date that amends or replaces any such law and does not

(a)    add to the kinds of property that may be taken possession of or the rights over and interests in property that may be acquired;

(b)    add to the purposes for which or circumstances in which such property may be taken possession of or acquired;

(c)    make the conditions governing entitlement to any compensation or the amount thereof less favourable to any person owning or interested in the property;

(d)    deprive any person of any such right as is mentioned in paragraph (b) of subsection (1) of this section.”

It is therefore clear that the conflict is with the provision of Section 31(2) (b).

The State Lands Law Cap. 122 Laws of Eastern Nigeria 1963 came into operation on 8th April, 1918. From its provisions, it is clear that the resumption of State land for public purposes is governed by the provisions of Sections 22 and 23 of the State Lands Law Cap. 122. The public purpose for which State land may be resumed stated in Section 22 are

(1)    To set poles on and carry electric lines across such land; and

(2)    To lay sewer, drains, water pipes or electric lines therein.

Under Section 23, the public purpose for which a portion of lands sold or leased may be entered and resumed are

(1)          for roads          (2)        railways
(3)          tramways         (4)        canals  (5)  water         channels or   (6)  trigonometrical stations or any other public undertakings.

Hotel business is not one of the purposes for resumption or public purpose under the Public Land Acquisition Law. That is what the respondent carries out on the premises occupied by them.
The State Lands Law (Cancellation of Leases) Edict 1972 No. 15 in so far as it purports to add hotel business adds to the purposes defined as public purpose under the Public Lands Acquisition Law in conflict with Section 31(2) (b) of the 1963 Constitution and to that extent null and void so that the purported cancellation of the appellant’s lease is of no effect whatsoever.

It is pertinent to mention that the appellant has made his stand quite clear to the Rivers State Government on this issue and refused any offer of compensation or even the invitation to discuss it.

For the above reasons, I hereby allow the appeal. The judgment of the Federal Court of Appeal and the High Court together with orders as to costs are hereby set aside and in their stead, I hereby enter judgment for the plaintiff/appellant for the sum of N270,000.00 (Two Hundred and Seventy Thousand Naira) arrears of rent from 24th March, 1972 to 23rd March, 1977 and mesne profits at the rate of N6,000.00 from the 24th March, 1977 till date of this judgment with costs as ordered by my learned brother, Irikefe, J.S.C.

K. ESO, J.S.C.: I also respectfully agree that the appeal should be allowed, and it is allowed. As this appeal has raised some constitutional issues however, I feel I should add just a few words of mine to the said judgment.

The facts of the case, as they were presented before the trial court, the High Court of Justice of the Anambra State, sitting at Enugu, are briefly as follows –

On 1st January 1966, the Military Governor of the Eastern Group Provinces of Nigeria, as Eastern Nigeria was known at the time, leased a property situate at A/42 Diobu G.R.A., Port Harcourt to the appellant. This property, the appellant subleased to the respondent in 1967 at a rent of N24,300.00 per annum commencing from 24th March of that year. After the payment of rent for a year, the respondent defaulted for the four subsequent years. An action was taken for the recovery of the outstanding amount and the High Court Anambra State holden at Enugu gave judgment against the respondent. The respondent did not appeal against the decision of the High Court. That court had during the trial of the action, overruled the defence of the respondent which was based on an issue that the property in question had been abandoned. After this action, the respondent defaulted again, but this time on the ground that by a cancellation order, made under Gazette Notice No. 412, in exercise of powers conferred on him by the State Lands (Cancellation of Leases) Edict 1972 No. 15, the Military Government of the Rivers State of Nigeria has, as from the 16th of October 1972, cancelled the lease made to the appellant by the Governor of the Eastern Provinces of Nigeria on the ground that the Plot was required for a public purpose. It was this that gave rise to the actions, subject matter of this appeal.

The High Court dismissed the appellant’s claim, gave judgment for the appellant but certainly not in terms of his claim, awarded the appellant a sum of N81,000.00 to cover a period of 24th March, 1972 to 25th September, 1973 at the rate of N6,000.00 per annum per flat for 9 flats. Learned trial Judge held that he had no doubt that the Military Governor of the Rivers State readily promulgated the Edict in order to spite the appellant for refusing to sell the property to him (the Military Governor). And although he held further that such action amounted to a plain example of naked abuse of power on the part of the Military Governor, yet the learned trial Judge would not, just for that reason only, declare the Edict null and void.

The matter then went on appeal to the Federal Court of Appeal which dismissed the appeal of the appellant from this decision of the High Court on the grounds, firstly that the issue of the validity of the Edict was not raised in the pleadings of the appellant, and secondly that the Rivers State Government, which enacted the Edict, was not joined in the suit.

The appellant has thereupon appealed to this court on seven grounds of appeal but as these grounds have been so neatly summarised in the brief of the learned counsel for the appellant, Chief F. R. A. Williams SAN., I think it would be sufficient to set out herein only what learned counsel has termed in his brief as questions for determination in this court. They are –

“(i)   Joinder of Parties:

(a)    Ought the plaintiff to have applied to the High Court  to join the Rivers State Government as a party to this action before it can properly raise the issues mentioned under item (i) of paragraph 3 of (this) Brief

(b)    If the answer to question (i) (a) is in the affirmative, should the Federal Court of Appeal have dismissed the appeal without making an order striking out the case or directing a retrial with direction that all proper parties should be joined
(ii)    Validity of Edicts No. 15 and 17 of 1972:

(a)    Whether Edicts No. 15 and 17 of 1972 are void on the ground that they were made in bad faith by the then Governor of Rivers State

(b)    Whether the aforesaid Edicts were also void on the ground that they are inconsistent with the Constitution of the Federation, 1963, as modified by the Decrees of the former Federal Military Government”

At the hearing of the appeal, there was no appearance for the respondent and the Attorney-General of the Anambra State, who had at the previous sitting of this court been invited to appear in this case as amicus curiae, did not show up. There was a note to the court however that the Attorney General was out of the State on State duties while the Legal Adviser in the Ministry of Justice was bereaved. The Attorney General of the Rivers State was also invited by this court and hearing in this appeal had to be adjourned on one occasion to give him opportunity of being heard but he neither honoured the invitation nor did he have the courtesy of sending an explanation to the court for his absence following the invitation.

I will now set out briefly the contentions of the respondent as contained in the brief of the Legal Adviser of the Ministry of Justice, Enugu. The contentions are –

1.     The action should have been by a declaratory action.
2.     The Rivers State Government should have been joined in the action and in that sense the Federal Court of Appeal was right in so holding.

3.     The validity of the Rivers State Edicts 15 and 17 was not in issue for determination having regard to the writ of summons and pleadings.

I will proceed, in concurring with the judgment of my learned brother Irikefe, JSC., to deal with some of the various topics which have been raised in the appeal.

JOINDER OF THE RIVERS STATE GOVERNMENT

First, let me set out the relevant portion of the Cancellation of Leases Edict 1972 Edict No.15 of 1972. Section 3(1) thereof provides-
“3-(1) Notwithstanding the provisions of the State Lands Law or any other law in force in the State and subject to the succeeding provisions of this Edict, the Military Governor may by notice published in the Gazette cancel the lease of any plot of any State land required for a public purpose and upon the publication of such notice, such plot shall thereupon revert to the State (Underlining mine.)

The word “lease” in the subsection had been defined by the State Lands (Cancellation of Leases) (Amendment), Edict 1972 No. 17 of 1972 as follows

” ‘lease’ without prejudice to any meaning assigned to it under the State Lands Law, includes any document approving or purporting to approve the grant of a lease of that land under the provisions of Section 3 of the State Lands Law where, pursuant to such approval, such land had been developed without the execution of a deed of lease.”

Now, these Edicts were promulgated by the Rivers State Government. The property, subject matter of the action in this appeal, is within the area of jurisdiction of that Government. The question then is whether that Government by virtue of its peculiar position and its relationship to the property should have been joined in the action brought by the appellant as plaintiff in the High Court of Enugu. The Federal Court of Appeal in its decision on this point held the view that –

“the appellant in this case is under a primary obligation to ask the court to join the Rivers State Government which is a person likely to be affected by the result of this case to answer the issues raised in the Reply filed and submissions made on behalf of the appellant in the cause.”

It was the submission of Chief Williams, learned counsel for the appellant, in this court that as a matter of practice a court of law should invite the State making the legislation. But this according to learned counsel, is not as a matter of law. He continued: A High Court in one State has jurisdiction to state that the law in another State is void. When one examines whether a court has jurisdiction or not, Chief Williams further submitted, one looks at the claim. The defence can raise as its justification a Federal law or the law of another State and when that situation arises, the High Court trying the case can in the process invalidate the Federal law or the law of the State, as the case may be, without reference to the Government that passed the legislation.

The action in this case is for arrears of rent and mesne profits. What the defence has done is to raise a plea that by the Edicts of the Rivers State Government aforesaid, the plaintiff/appellant could not succeed in his action as it has ceased, by virtue of those Edicts, to own the property in question. Now, to my mind, it is this defence that puts the validity of the Edicts in question in issue. Order 4 rule 5 of the High Court of Eastern Nigeria Rules provides on the matter of joinder of parties –

“5.(1) If it shall appear to the court at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject-matter of the suit, or who may be likely to be affected by the result, have not been made parties, the court may adjourn the hearing of the suit to a future day, to be fixed by the court, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be. In such case the court shall issue a notice to such persons, which shall be served in the manner provided by the rules for the service of a writ of summons or in such other manner as the court thinks fit to direct; and on proof of the due service of such notice, the person so served, whether he shall have appeared or not, shall be bound by all proceedings in the cause; provided that a person so served, and failing to appear within the time limited by the notice for his appearance, may, at any time before judgment in the suit, apply to the court for leave to appear, and such leave may be given upon such terms (if any) as the court shall think fit.

(2)    The court may, at any stage of the proceedings and on such terms as appear to the court to be just, order that the name or names of any party or parties, whether as plaintiffs or defendants, improperly joined, be struck out.”

It is the words of the rule, as Devlin, J., pointed out in Amon v. Raphael Tuck and Sons Ltd. 1956 1 QB 357, that should govern the matter of joinder of parties. In the words of the rule therefore, for joinder to be necessary, the parties to be joined must be –
(a)    persons who may be entitled to or who claim some share or interest in the subject-matter of the suit; or

(b)    who are likely to be affected by the result.

But for the purpose of this action, I will place emphasis on “persons likely to be affected by the result of the action.” Though the Rules of Court that were being interpreted in the Amon v. Raphael Tuck and Sons Ltd. case (supra), are quite different from the Order 4 rule 5 of the High Court of Eastern Nigeria Rules, the principle is the same, and that is, the words of the rules are paramount. In A. Lajumoke v. Mrs. R. Doherty (1969) 1 NMLR 281, a case that came before the Western State Court of Appeal, I had cause to examine the principle laid down in Amon v. Raphael Tuck (supra) and adopted the reasoning of Devlin, J., in that case. I am still of the same view that the principle is to ensure that all the necessary parties to a case, (necessary in the broad sense of being necessary to the effectual and complete adjudication of the case) are before the court. For the only reason which makes it necessary (in the sense I have stated above) to make a person a party to an action is that he should be bound not only by the result of the action but also by the answer given to the question to be settled. One of the questions that one must ask oneself in this case is – Could the question of validity of the Edicts enacted by the Rivers State and now brought into this action be effectually and completely settled unless the Rivers State Government is joined as a party To state the law broadly, are all the parties who claim interest in this case or who are likely to be affected by the result of the case before the court It is true that in so far as the Rivers State Government is concerned, the only thing that affects that State Government in this case is the validity or not of Edicts 15 and 17 of 1972. But has that State Government, by reason thereof, no legal interest in the issue as to whether the Edicts it has promulgated are  valid or not will the State Government not be affected by whatever decision the court arrives at on this issue of the validity or not of the Edicts These I think are pertinent questions.

It is the Rivers State Government that promulgated the Edicts. And the validity or otherwise of those Edicts is now on trial. In my view, if only on the principle of fair trial, the State government should be heard in any action that would determine the validity or not of its Edicts. The maxim audi alteram partem must necessarily apply in this case. The alteram partes here is the Rivers State Government. I do concede that the issue of the validity of the Edict is merely incidental to the main question to be decided in the case while the principal issue is one of an action for mesne profits. But, in my respectful view, this incidental question, which indeed was the main plank on which the defence of the respondent at the trial rested, is an important issue and in its determination, the principles of fair trial must be followed otherwise there cannot be a determination of that issue, important as it is to the determination of the main issue in the case, according to law.

The submission has been made to us to the effect that the Anambra State High Court has power to declare the Edicts in question, that is, Edicts 15 and 17 of 1972 made by the Rivers State Government invalid. While I will agree with this submission, I cannot with all respect, accept the other proposition that the High Court in one State, can on its own, and  without proper trial of the issue, treat the law of another State of the Federation as invalid and thereby ignore it. The proposition that the High Court of one State can avoid the legislation of another State is often equated with a court’s treatment of foreign law. But a distinction must be made between the legislation of a foreign country coming for determination before a domestic court, and the legislation of just another State in the Federation in view of the provision of Section 73 of the Evidence Act applicable to all courts in this country which I will deal with presently.

Again, in this country, could the courts of one State treat the legislation of another State void on the principle of what is void needs not be set aside For this proposition, reference is usually made to the dictum of Lord Denning, in Macfoy v. U.A.C. (1961) 3 WLR 1405. Let us examine that dictum properly. Coker, JSC., reading the judgment of this court in Alhaji Y. S. O. Bello etc. v. The Diocesan Synod of Lagos etc. (1973) 3 ECSLR p. 330, approved of the dictum of Lord Denning in the Macfoy case, for as the learned Justice of the Supreme Court said, and I agree, prima facie, what is void needs not be set aside for ex nihilo venit. Lord Denning’s dictum in the Macfoy case,  has run thus-

“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 court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court to declare it to be so.”

But the act that was a nullity in the Macfoy case was a statement of claim delivered during the court’s long vacation and it was in that sense that this court approved of the dictum of Lord Denning MR., in the Alhaji Y. S. O. Bello case (supra). I do not think that the principle enunciated in this dictum by the much respected English Master of the Rolls, valid as it is in the case where it was enunciated, should be extended to legislation and cover a proposition that a court in one State of the Federation can suo motu treat the law enacted by another State as void and proceed to act on that conclusion without proper trial of its validity by hearing the State that enacted the legislation. Our Evidence Act provides for the court to take judicial notice of certain facts. Section 73(1) (a) of the Act provides –

“73(1)   The court shall take judicial notice of the following facts:

(a)    all laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria” (underlining for emphasis mine)

It is the duty of the High Court of Anambra State which tried this case to  take judicial notice, not only of the  existence of Edicts  15 and 17 of 1972 of the Rivers State in question, but also as Edicts having force of law in the Rivers State. In other words, the court should take judicial notice of the Edicts as valid Edicts. Prima facie they remain valid until set aside or declared void. In Benson and Abejude v. Ashiru  (1967) NMLR 364, Brett, J.S.C., delivering the judgment of this court said:

“As a general rule, foreign law is a question of fact and must be pleaded, but Section 73(1) (a) of the Evidence Act required the High Court of Lagos (this also applies to the High Court of Anambra State) to take judicial notice of all laws or enactments and any subsidiary legislation made thereunder having the force of law or heretofore in force or hereafter to be in force, in any part of Nigeria, and it is unnecessary to plead matters of  which  the court takes judicial notice. Bullen and Leake p.9. It appears from Koop v. Bebb (1951) 84 CLR 629 that the courts in the different States of Australia similarly take judicial notice of the law in force in the other States.” (Underlining mine.)

Where the law in question is foreign law, a question of fact arises. It must be pleaded. Expert evidence may be led and a decision arrived at by the court of trial without inviting the foreign country concerned. The court may refuse to enforce the decision of a foreign court where the domestic tribunal finds suo motu the foreign court has no jurisdiction. See Pemberton v. Hughes (1899) 1 Ch. 781 as per Lord Lindley MR., But where the law is that of another State in the Federation a judicial notice of that law is taken. As I have earlier pointed out, until the Edicts in question here are avoided by the court, they have the force of law as enactments validly made by the Rivers State government for when the courts take judicial notice of them they are presumed to be valid. Until they are so avoided therefore, the defence raised by the respondents to the  action herein would be valid. To avoid the Edicts, I am of the respectful view that the Rivers State government which enacted them must be recognised as having interest when the question of their validity is raised in any court of law anywhere in the Federation, and a fortiori that government must be heard before the court, where the issue is raised (and this includes the Anambra State High Court), could avoid them. Again, though the validity of the Edicts is ancillary to the case, it, nevertheless, stands at the very threshold of the case and the court cannot avoid a decision on it if  it is to come to a just decision on the main issue. See again Y. A. O. Bello v. The Diocesan Synod of Lagos ibid, at p.350. I think in this case Order 4 rule 5 of the High Court of Eastern Nigeria Rules applies and this is a case that calls for the joinder of the Rivers State.

The Federal Court of Appeal was therefore right in their decision that the Rivers State should have been joined in the action, and the Rivers State ought to have been joined, not as a matter of practice, but as a matter of law, before the Edicts could be properly declared invalid.

However, the point has ceased to be of practical importance to the case itself in this court, for as I have earlier indicated in this judgment, we did invite the Attorney General of the Rivers State to attend the hearing of this appeal for the purpose of assisting us on the issue of validity of the Edicts; and inspite of one adjournment of hearing of this appeal to afford him additional opportunity of being heard, he did not show up. He gave no reasons for his absence. The Ministry of Justice gave no apology for the levity with which the Attorney General has apparently treated the court. The arguments in the appeal before us proceeded without any representation from the Rivers State and it was through the fault of the Rivers State government that that State was not heard in this court. That being so therefore, I do not consider this to be a matter whereby I should make an order striking out the case for the reason that all the parties were not before the trial court nor one that should go for a retrial with the direction that the proper parties should be joined.

VALIDITY OF THE EDICTS

I have already set out Rivers State Edicts 15 and 17 in this judgment. It is under the provisions of Edict 15 as amended by Edict 17 that the respondent claims that the property in question has been acquired compulsorily by the Rivers State Government which acquisition has constituted a defence to the action against him.

It is an accepted principle of interpretation of statutes which deprive a citizen of his proprietary rights that such statutes are construed according to the strict letter of the statute. See Maxwell: Interpretation of Statutes 12th Edition page 258 where the learned author said –

“Where a statute confers a power and particularly one which may be used to deprive the subject of proprietary rights, the courts will confine those exercising the power to the strict letter of the statute.”

In East Riding Council v. Park Estate Bridlington Ltd. (1957) AC 223, Viscount Simonds said of statutes encroaching on private rights that the court must insist on strict and rigid adherence to formalities. In other words such statutes are to be construed fortissime contra proferentes. See In re Bowman, South Shields (Thames Street) Clarence Order (1932) 2 KB (621 particularly at p. 633);  Batrum v. Manurewa Borough  (1962) NZLR 21; Mayor of Westminster of London v. North-Western Railway Company (1905) AC 426 and Alhaji Y. A. O. Bello v. The Diocesan Synod of Lagos etc. (1973) 3 ECSLR Part 1, 330.

It is with this background that one should examine the provisions of the Edicts in question in this case. But first I would like to deal with a point made by Chief Williams in his brief as regards invalidity of Edict 15 on the ground of bad faith. In fairness to learned counsel he referred us in that brief to the important decision in the High Court of Australia of Arthur Yates & Co. Ltd. v. The Vegetables Seeds Committee (1945) 72 CLR 37. Where Dixon, J., discussed the authorities and concluded in the words of Cardozo J. in U.S. v. Constantine (1935) 296 U.S. 287 at p. 299; (80 Law Edition 233 at p. 246) that it is a wise ancient doctrine that a court will not inquire into the motives of a legislative body or assume them to be wrongful. From the other cases discussed in that judgment especially Arizona v. California (1931) 283 U.S. 423 at pp. 455 and 456 (75 Law Edition at p.1166); and the authorities referred to therein, it seems to me that the law is now well settled. I am of the firm view also that no distinction should be made as to whether the legislature is that of the Federal Government or that of a State Government. No mala fides should be imputed to a legislator in regard to his legislation. Perhaps it is also worth noting that in any event, the powers to make Edicts at the period in question in the instant case were vested in the Military Governors who, under the Constitution, were the embodiment of the Executive and the Legislature.

Though no bad faith should be imputed to a legislator, it is still my view that Edict 15 as amended by Edict 17 aforesaid, is invalid, and I will proceed to give my reasons.

Compulsory acquisition of the property in question or the cancellation of the appellant’s lease as it was stated in the Edict was purported to have been made under Section 3(1) of the Cancellation of Leases Edict 1972 No. 15 of 1972 as amended by Edict No. 17 of the same year. For the cancellation of the lease or any acquisition of the property to be valid the Edict itself must be valid and or not be inconsistent with the Constitution.

The Constitution in operation at the time was the Constitution of the Federation 1963 No. 20. Section 31 of Constitution provides –

“13.(1) No property, movable or immovable, 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 by or under the provisions of a law that –

(a)    requires the payment of adequate 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 the High Court having jurisdiction in that part of Nigeria.

(2)    Nothing in this section shall affect the operation of any law in force on the thirty-first day of March, 1958, or any law made after that date that amends or replaces any such law and does not –

(b)    add to the purpose for which or circumstances in which such property may be taken possession of or acquired; ”

It follows therefore that Edicts 15 and 17 aforesaid have been rendered invalid by Section 31(2) of the Constitution of the Federation and a fortiori the “cancellation” or acquisition, as the case may be, of the appellant’s lease is invalid. In Chief Ereku & Ors v. Military Governor Mid-West (1974) 10 SC 59, a case that came to this court from the old Mid-Western State (now Bendel State), this court said –

“that there is no power in the Government of the Mid-Western State to modify the Public Lands Acquisition Law as a ‘law in force on the thirty-first day of March, 1958’ in  so far as the amendment was designed ‘for the purposes for which or circumstances in which such property may be taken possession of or acquired’.”

The Edicts were made after 31st day of March, 1958. But what justifies the cancellation of the lease under the Edicts or under any law for that matter The State Lands Law dealing with State lands in the old Eastern Nigeria contains no provisions wherein the cancellation of the lease could be justified. Section 22 thereof deals with resumption of State land for the purpose of setting up electric poles and laying sewers, drains and water pipes. Section 23 deals with resumption of lands for roads and railways. And these are the only two sections of the Law that could be remotely connected with acquisition or re-acquisition of State land. The provisions themselves use the word “resumption” which shows the land has already been given out. It is clear that the Rivers State Government cannot seek sanctuary under these provisions.

It is also necessary to examine the Public Lands Acquisition Law (Laws of Eastern Nigeria 913) Cap. 105. Acquisition of land for public purpose is only justified if the acquisition is made for public purpose as defined under Section 2 of the Law. Indeed, once the land has been acquired for public purpose under the Law, by virtue of Section 3(2) of the Law which provides –

“3(2)  Where any lands are or have been acquired under the provisions of this Law such lands shall, to the extent of the estate or interest acquired therein, be and be deemed to have been State lands for the purposes of the State Lands Law from the date of such acquisition and may be dealt with in accordance with the provisions of that Law notwithstanding that the purpose for which such lands were acquired has failed or that all or any of such lands are no longer required for the purpose for which they were acquired or are being used.”

Such land becomes State Land and it can only be dealt with in accordance with the provisions of the State Lands Law. This being the case, it would appear to me that acquisition of land under the Public Lands Acquisition Law could only be applicable to acquisition of virgin land and such acquisition could never apply to State land. For it is only after an acquisition of virgin land that the land so acquired becomes State land which is by virtue thereof laid out to be granted as leases under Section 3(1) of the State Lands Law. State lands under Section 2 of the State Lands Law would mean all public lands in Eastern Nigeria which were on the 30th day of September, 1960 subject to the control of the Government and which were held for a public purpose. In other words, the whole conception of State land is that some virgin land has been acquired for public purpose under the Public Lands Acquisition Law and by virtue of that acquisition it becomes State land. And once it becomes State land, the land can only be applied for purposes as prescribed under the State Lands Law. If for instance a lease of State land is to be granted to any person, such issue of State land is to be granted to any person, such lease of State land is granted under Section 3 of the Law. If leases are to be surrendered, the Commissioner responsible for land matters accepts surrender of leases on terms, under the Law. Under Section 5 of the Law the Commissioner may grant a licence to any person to take building materials from the land. Provisions are made under the Law for imposing penal rent (Section 9); buildings on State land pass to the State after the determination of the lease (Section 10). Resumption of State land by the Government is, as I have earlier said, provided for under Section 22 and 23 of the Law.

It is curious therefore that Section 3(1) of the State Lands (Cancellation of Leases) Edict 1972 should provide for cancellation of leases of State land on the ground that it is required for public purpose, especially as public purpose therein has been defined as having the same meaning as is assigned to it under Public Lands Acquisition Law. The best that can be said for the Edict is that the Edict itself recognises the inconsistency of the State Lands Law, for Section 3(1) of Edict 15 starts by saying “Notwithstanding the provisions of the State Lands Law.”

But the inconsistency is not just limited to the State Lands Law. The Edict permits in a land that has already been acquired or taken possession of for public purpose and has become State land subject to the provisions of the State Lands Law (an existing law), cancellation of the lease made thereunder on the guise that it is required again for the same public purpose for which it was originally acquired. What the Edict has done, in effect, is to seek to “add to the purpose for which or circumstances in which such property” was “taken possession of or acquired.” And this addition to the purpose renders the Edict to be in conflict with Section 31(2) (b) of the Constitution of the Federation 1963 No. 20. By such conflict with the Constitution the Edict is null and void. And on that token the respondent is left without any defence to the action of the plaintiff/appellant.

It is for the foregoing reasons therefore that I will allow the appeal and make the following orders.
1.     The judgment of the High Court of Anambra State holden at Enugu (Umezinwa, J.) dated 16th January, 1978, and the judgment of the Federal Court of Appeal, Enugu dated 5th June, 1980, together with their orders as to costs are hereby set aside.

2.     The plaintiff/appellant shall have judgment on his claim

(a)    for the sum of N270,000.00 being arrears of rent from 24th March, 1972, to 23rd March, 1977, for nine flats at the rate of N6,000.00 per annum per flat.

(b)    for mesne profits for the period 24th March, 1977, to the date of the judgment for nine flats at the rate of  N6,000.00 per annum per flat.

(3)    Costs as per the order contained in the judgment of the learned Presiding Justice, Irikefe., J.S.C.

A. NNAMANI, J.S.C.:  I agree with my learned brother, Irikefe, J.S.C., that this appeal be allowed. For purposes of the comment I wish to make on a few of the issues raised, I would gratefully adopt the facts as well as the argument of learned counsel before us as set down in the said judgment of Irikefe, J.S.C. I shall not repeat them except such as I need to emphasise in the course of this judgment.

In this suit which was commenced in 1977 at the High Court Enugu, Anambra State, the appellant (therein plaintiff) sued the respondent (therein defendant) for N342,000 being the amount due to the plaintiff from the defendant for the use and occupation by the defendant of the plaintiff’s property known as and called Plot A/42 Diobu G.R.A., Port Harcourt for the period 24th March, 1972 to 23rd March, 1977, inclusive and for mesne profits until judgment. Pleadings were duly ordered, filed and delivered. For purposes of appreciating the main points in issue in this appeal, it may be necessary to set down some paragraphs of the pleadings. In paragraphs 3, 4, 5, 6, 8, 11, 15 the plaintiff (appellant herein) averred as follows:-

“3.    The plaintiff is the owner of triplex buildings containing 9 luxury flats known as Plot A/42 at Diobu Government Residential Area, Port Harcourt.

4.     In 1967, the defendant through its accredited representative requested of the plaintiff to use the said building as an annexe to its Hotel at Port Harcourt known as Hotel Presidential.

5.     The plaintiff and defendant eventually agreed that the defendant would use and occupy the said buildings as part of its Hotel Presidential Port Harcourt with effect from 24th March, 1967, at an annual rent of N24,300 (12,150.00 Pounds.) payable in advance.

6.     By letter dated 20th March, 1967, the defendant acknowledged the receipt of all the keys including duplicates for the said buildings from the plaintiff. This letter will be founded upon…………

11.   The defendant is still in occupation of the said buildings which continue to be used as part of the said hotel…………………

15.   The defendant has neglected despite repeated demands to pay the monies for the use and occupation of the said buildings.”

The very material reply of the defendant (i.e. respondent) was contained in paragraph 6 of the statement of defence in which it averred as follows:-

“The defendant will at the trial contend:-

(a)    that the lease of Plot A/42 Diobu, Port Harcourt had been cancelled and the ownership of the property reverted to the Rivers State Government in accordance with Rivers State Edicts Nos. 15 and 17 of 1972.

(b)    that as from 16th October, 1972, the plaintiff ceased to be the owner of Plot A/42 Diobu Port Harcourt and therefore ceased to be entitled to further rent;

(c)    that the last rent as per Suit E/99/72 paid to the plaintiff expired on 24th March, 1972, and the plaintiff is, therefore, entitled to only six months sixteen days (61/2 months’) rent (from April 1972 to 16th October, 1972) at the rate of N2,025.00 per month;
(d)    that the rent due to the plaintiff for the 61/2 months is N13,162.50;

(e)    that the plaintiff is not entitled to the relief sought in the statement of claim.”

This paragraph prompted a reply which I would also wish to set down. It ran as follows:-

“(1)  In answer to paragraphs (4), (5) and (6) of the statement of defence, the plaintiff will put the defendant to strict proof of the allegations of facts contained therein except as hereinafter admitted and will at the trial contend:

(i)     The then Military Government of Rivers State A. P. Diete-Spiff approached the Managing Director of the plaintiff’s company, Chief P. N. Okeke, through one Ramani Abah of Ramani Abah & Co. to sell the buildings, the subject matter of this suit, to the said A. P. Diete-Spiff personally and the said Chief P. N. Okeke bluntly refused the offer. This was on the 22nd of February 1972.

(ii)    That the said notice of cancellation of lease dated 26th September, 1973 was –

(a)    Irregular, vindictive, mala fide and abuse of power;

(b)    giving a public veneer to purely personal vendetta:

(iii)   That the government  of Rivers State did not itself need and has never used the said building for any public purpose or at all. The plaintiff will rely on various correspondences touching this matter and especially the Rivers State Government’s letters of 7th, 8th 13th and 29th November, 1976.

(iv)   That the defendant directly and/or through its agent continues to use and occupy the said buildings.”
On the 16th January, 1978, Umezinwa, J., gave judgment in favour of the appellant though not exactly in terms of his claim. But more important, the learned trial Judge held as valid the Rivers State Edicts 15 and 17 which purported to cancel the appellant’s lease. An appeal to the Federal Court of Appeal (hereinafter referred to as the Court of Appeal) was dismissed mainly on four grounds as have been set down in the appellant’s brief of argument. They are as follows:-

“(i)   the issues concerning the validity of (a) Edicts No. 15 and 17 of 1972 (b) Gazette Notice dated 26th September, 1973 and (c) the acquisition of the property by the government were not distinctively raised on the pleadings at the trial of the action;

(ii)    accordingly, the issues aforesaid, upon which the plaintiff based his appeal from the judgment of the High Court, were irrelevant;

(iii)   the plaintiff ought to have applied to the High Court to join the Government of Rivers State as a party; and

(iv)   not having joined the Rivers State Government it was improper for (the plaintiff) to raise issues concerning the validity of the matters raised under item (i) above.”

These 4 grounds can be condensed into two which are inadequacy of pleadings and non-joinder of the Rivers State Government. As regards the latter, it was the main contention of the respondent in the lower courts that since the question of the validity of the State Lands (Cancellation of Leases) Edict No. 15 of 1972 and the compulsory acquisition of the plaintiff’s property were involved, the plaintiff ought to have instituted a declaratory action in the Rivers State and that the Rivers State government ought to have been made a party.

On the issue of joinder of parties Order 4 rule 5 of the High Court Rules of Eastern Nigeria applicable to the case states as follows:-

“(5)(1) If it shall appear to the court at or before the hearing of a suit that all the persons who may be entitled to or who claim some share or interest in the subject-matter of the suit, or who may be likely to be affected by the result, have not been made parties the court may adjourn the hearing of the suit to a future day, to be fixed by the Court, and direct that such persons shall be made either plaintiffs or defendants in the suit as the case may be  …………..”

“(2)  The court may, at any stage of the proceedings, and on such terms as appear to the court to be just, order that the name or names of any party or parties, whether as plaintiffs or defendants, improperly joined be struck out” (Underlining mine).

These rules appear to differ substantially from Order VII rules 10 (1) (2) and 11 of the Rules of the High Court of Western Nigeria which were considered by the former Western State Court of Appeal in A. Lajumoke v. Mrs. R. Doherty  (1969) Vol. 1 NMLR 281 and by this court in Chief A. O. Uku & 4 Ors. etc. v. D. E. Okumagba and 3 Ors. (1974) 3 S.C. 35. For ease of reference those rules provide as follows:-

“10(1)      No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties and the parties (the court) may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

(2)    The court or a Judge may, at any stage of the proceedings either upon or without the application of either party, and on such terms as to the court or a Judge may seem just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether plaintiffs or defendants who ought to have been joined or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions. (sic)”

From the earliest times, as far as this rule is concerned, the consideration has always been whether the entry of the party sought to be joined “will enable the court effectually and completely adjudicate upon and settle all questions (See Order 15 rule 6 of the Rules of Supreme Court in England, Supreme Court Practice (1979) Vol. 1 at p. 179; Byrne v. Brown (1889) 22 QBD 666-7; Montgomery v. Foy (1895) 2 QB 321, 324; McCheane v. Gyles (No. 2) (1902) 1 Ch 911; Amon v. Raphael Tuck & Sons Ltd. (1956) 1 QB 357 or (1956) 1 AER 273.). Perhaps the best construction of this rule is that which was placed on it by Wilmer J., in “The Result” (Miguel Sanchiez & Companies S. L. v. Result (Owners), Nello Simoni Ltd. Third Party) (1958) Probate 174. Cited in Okumagba’s case (supra). At p. 179 the learned Judge said:

“……. Having regard to the terms of the rule, it appears to me that the questions to be determined on this summons are these. First, is the cause or matter liable to be defeated by the non-joinder of the third parties as defendants This I think means in effect: is it possible for the court to adjudicate upon the cause of action set up by the plaintiffs, unless the third parties be added as defendants This I think means in effect: is it possible for the court to adjudicate upon the cause of action set up by the plaintiffs, unless the third parties be added as defendants Secondly, are the third parties persons who ought to have been joined as defendants in the first instance Thirdly and alternatively, are the third parties persons whose presence before  the court as defendants will be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter”

If this rule applied to the case in hand I would have readily held that there was no need for the joinder of the Rivers State government as a defendant. The suit before the court was one of non-payment of rent as between the plaintiff and defendant both of which were limited liability companies resident in Enugu and therefore within the jurisdiction of that High Court. The question of the validity of the Edicts which purported to cancel the lease of the plaintiff arose in the course of proceedings.

On this reasoning, I would have agreed that the learned trial Judge was right to hold as he did that he was protected by Order VII rules 3 and 4 of the High Court Rules of Eastern Nigeria, Cap. 61 Laws of Eastern Nigeria, 1963. The learned trial Judge would also have been right to say as he did:

“But the claim before me is for arrears of rent or damages for use and occupation of the plaintiff’s property by the defendant. The defendant not only resides within jurisdiction but also carries on business within jurisdiction ….. The validity of the Edict and the cancellation of plaintiff’s lease merely arose as a defence. This issue I can competently deal with for if the Edict is unconstitutional null and void, I would have ignored it as not existing at all and proceeded to determine the case without formally declaring the Edict null and void”

But the learned trial Judge obviously did not take the terms of Order 4 rule 5 of the High Court Rules of Eastern Nigeria applicable to this case (it being my view that Sections 15 and 16 of the High Court Law, Cap. 61 Laws of Eastern Nigeria, 1963, which would have imported the English Rules to which I earlier referred to do not directly apply) fully into account particularly the difference between it and Order VII rule 10(1) and (2) of the High Court Rules of Western Nigeria to which reference has been made above. Though I have set down the rule supra it is necessary to emphasise the words “appear to the court at or before the hearing of the suit, that all persons who may …….. be likely to be affected by the result have not been made parties.” I am not unmindful of the fact that the cause of action was arrears of rent for use and occupation. But at the close of pleadings (i.e. before the trial or at the trial) the issues before the court included the claim of the plaintiff company, the defence of the defendant (which was a reliance on the Rivers State Land (Cancellation of Leases) Edict 1972) and the reply of the plaintiff in which it pleaded material facts raising questions as to the validity of those Edicts and the purported compulsory acquisition of its property. I find it difficult to hold that the result of a resolution of those issues could not have affected the Rivers State government. In those circumstances, I am also of the view that that government ought to have been joined as a party. But it must be stressed that it is not a case in which the joinder must be initiated by the appellant. The terms of the rule clearly put the burden on the court. I am therefore unable to agree with the Court of Appeal that the non-joinder was fatal and that the suit could be dismissed on that ground. As Chief Williams, SAN., learned counsel for the appellant rightly contended, the most that the Court of Appeal would have ordered would have been a retrial, although in the circumstances of this case I would have considered such an order hard.

It has always to be remembered that most of these rules including Order 4 rule 5 of the High Court Rules of Eastern Nigeria and Order VII rule 10(1) and (2) of the High Court Rules of Western Nigeria owe their origin to the old Judicature Acts of England. The great object of these Acts was to bring all parties to disputes relating to one subject matter before the court and at the same time so that the disputes may be determined without the delay, inconvenience and expense of separate trials and actions. (See Byrne v. Brown (supra) per Lord Esler, MR.,) It was in acknowledgement of the need for the presence of the Rivers State government that this court made strenuous efforts to invite the representatives of that government during the hearing of this appeal. On the 31st of May, 1982, this court ordered that the Attorneys-General of Anambra and Rivers State do appear before it on the adjourned date which was 27th September, 1982 as amici curiae. As transpired on the 27th September, 1982, there was no response by both Attorneys General. This absence was all the more astonishing as the respondent was represented by counsel both in the High Court and the Court of Appeal and a brief of argument on behalf of the respondent in respect of this appeal was filed in this court by the same counsel. With respect to the Rivers State government, it cannot claim ignorance of these contentions between the plaintiff and the defendant which have gone on in one form or the other since 1972 (See Enugu High Court Suit E/99/72 in the defunct East Central State). I do not think that the opportunity granted to the defendant’s counsel having been spurned, this is an appropriate case in which to order a retrial.

There are two other aspects of the issue of joinder on which I would wish to make brief comments. Arguing on jurisdiction and joinder in the lower court, learned counsel for the respondent contended that that court had no jurisdiction to entertain the appellant’s suit because the suit ought to have been a declaratory one challenging the validity of the relevant Rivers State Edicts. It was also submitted that the authority which acquired the property involved pursuant to the Edicts being so impugned ought to have been joined as a party. He relied on Chief Ereku and Ors. v. The Military Governor of Mid-Western State (1974) 10 S.C. 59; Chief Sam Warri Essi v. Attorney General Mid-Western State (1977) 4 S.C. 71 and B. C. Onyiuke v. Esiala (1974) 10 S.C. 77 in each of which the acquiring authority was made a party to the suit. I think it is clear that the circumstances of this case were different from those in the cases referred to supra. In the instant suit the cause of action was arrears of rent. There was no direct action challenging the validity of the Edicts in issue nor the constitutionality of the acquisition of the appellant’s property.

Then there was the other argument whether the validity of a law enacted by a State could be determined in the High Court of another State without joining as a party the State whose law is being impugned. Although there is no direct authority on the issue, I would agree with Chief Williams that as a general proposition it is not necessary to join the State whose law is being  impugned. The material consideration must, however, be the claim. If by the nature of the claim the High Court of a State has jurisdiction and in the course of determining the issues between the parties it becomes necessary to pronounce on the validity of a law enacted by another State, I am of the view that that High Court can so pronounce without necessarily joining the other State as a party. It is desirable, however, as was submitted, that the Attorney General of the State whose law is being impugned in such proceedings should be invited to participate in such proceedings.

The main issue canvassed in favour of the appellant was the invalidity  of the Rivers State Land (Cancellation of Leases) Edicts 15 and 17 of 1972 which purportedly cancelled the appellant’s lease and purportedly acquired compulsorily its property. The grounds canvassed for the invalidity are firstly, that the legislation was in bad faith i.e. that the then Military Governor of Rivers State enacted the Edicts following the failure of his bid to purchase the property for his personal use. Secondly, and more substantially, that the Edicts which purported to acquire the appellant’s property were unconstitutional being inconsistent with Sections 31(2) (a) and 31(2) (b) of the Constitution of the Federation, No.20 of 1963 as amended by Act No. 1 of 1966. As regards the issue of bad faith I think I can deal with that briefly. It is settled law that the motives of the legislature in enacting any law cannot be relevant in determining any question as to the validity of that law: See Arthur Yates and Company Proprietary Ltd. v. The Vegetable Seeds Committee and Ors. (1945) 72 CLR. 37 at 64. I think the learned trial Judge was right in refusing to hold the Edicts invalid on grounds of the ex-Military Governor’s bad faith. While the Edicts in issue – the Rivers State Lands (Cancellation of Leases) Edicts 15 and 17 of 1972 – appear to have faithfully followed the provisions of the Public Lands Acquisition Law, Cap. 105 Laws of Eastern Nigeria, 1963, on the issue of compensation etc. (See Sections 2, 4 (1) and 5 of Edict No. 15), they no doubt fell foul of the provisions of the Constitution. Section 31 of Act No.20 of 1963 provides as follows:-

“31(1)   No property, movable or immovable 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 by or under the provision of a law that –

(a)    …………

(b)    …………

(2)    Nothing in this section shall affect the operation of any law in force on the 31st March, 1958, or any law made after that date that amends or replaces any such law and does not –

(a)    add to the kinds of property that may be taken possession of or the rights over and interests in property that may be acquired;

(b)    add to the purposes for which or circumstances in which such property may be taken possession of or acquired.”

The Public Lands Acquisition Law, Cap. 105 Laws of Eastern Nigeria, 1963 (which really commenced on 3rd May 1917) applicable in the Rivers State provides in Section 3(1) thereof that:

“Where any lands in the Region are required for a public purpose of the Region the Minister may acquire such lands for an estate in fee simple or for a term of years as he may think proper, paying such consideration or compensation as may be agreed upon or determined under the provisions or this law.”

“Public purpose” is therein defined as

“includes a public purpose as hereinafter defined in so far as such purpose relates to any matter with respect to which the Government of Eastern Nigeria has power to make law and also –

(a)   for exclusive Government use or for general public use.
(b)   ………………..
(c)   ………………..
(d)   ………………..
(e)   ………………..
(f)    ………………..
(g)   …………………
(underlining mine).

It seems quite clear to me that Acquisition Law shows that it is directed to the acquisition of community land, lands in rural communities, undeveloped land or more specifically land which is not already state land. The definition of “lands”, “Local community”, “recognised head chief” in the law appear to me to strengthen this opinion. It is only after such acquisition that such land come to be administered under the State lands law. I would therefore agree that land which is already state land is not within the purview of land which can be acquired under the provisions of the Public Lands Acquisition Law. Cap. 105 was law in existence on 31st March, 1958, and therefore to the extent that the Rivers State (Cancellation of Leases) Edicts 1972 attempted to add another category of land – State land – to land which can be acquired under Cap. 105, it is inconsistent with Section 31(2) (a) of the Constitution, Act No. 20 of 1963. Sections 1 and 3(4) of Act No. 1 of 1966, declare null and void any Edict in conflict with an Act of Parliament or Decree. Section 3(4) of Act No.1 of 1966 are in these terms:-

“3(4)  If any law –

(a) enacted before 16th January, 1966, by the legislature of a Region or having effect as if so enacted or

(b) made after that date by the Military Governor of a Region is inconsistent with any law –

(i)  validly made by Parliament before that date or having effect as if so made or

(ii)    made by the Federal Military Government on or after that date the law made as mentioned in paragraph (i) or (ii) above shall prevail and the Regional law shall to the extent of the inconsistency be void”
(Underlining mine).

Notwithstanding Section 6 of Decree (Act) No. 1 of 1966, which provides that “No question as to the validity of this or any other Decree or any Edict shall be entertained by any court of law in Nigeria,” this court has held that the courts are merely precluded from inquiring as to the legislative capacity to make a Decree or an Edict but can inquire into whether an Edict is inconsistent with the provisions of the Constitution of the Federation. (See University of Ibadan v. Adamolekun (1967) 1 All NLR 213 at 224.) It is clear from the facts of the instant case that the appellant’s land was State land and the lease still had 88 years to run at the time of the purported cancellation. Following this conflict with Section 31(2) (a) I would agree that the Rivers State Lands (Cancellation of Leases) Edicts 1972 were unconstitutional and so null and void. The purported acquisition of the appellant’s property is also null and void.

The appellant’s property being State land was governed by the State Lands Law Cap. 122 Laws of Eastern Nigeria 1963 which was applicable to the Rivers State and which commenced on 8/4/18 and was therefore a law in force on 31/3/58. Sections 22 and 23 provide for the circumstances in which the State lessor of land (in this case the Rivers State Government) can resume leased land for public purposes.

Section 23 particularly provides as follows:-

“23(1)  When any land sold or leased under this law exceeds two hundred acres the Minister may at any time enter and resume any portion of such lands for roads, railways, tramways, canals, water channels or trigonometrical stations or any other public undertaking without paying compensation for the land but compensation shall be paid for buildings or crops destroyed or damaged:”……
(Underlining mine).

If the words “any other public undertaking” are read ejusdem generis, it is clear that the purpose for which the appellant’s property was acquired which is for use of the Hotel Presidential Ltd. is not one of the purposes envisaged by that section. Then there is Section 22 of the same State land law which provides as follows:

“Any person authorised by the Minister may at any time enter upon any land, sold or leased under this law and may-

(a)    set up poles on and carry electric lines across such land; and

(b)    lay sewers, drains, water pipes or electric lines therein without paying compensation but making good all damage done”

Again purposes different from that for which appellant’s property was acquired. The State Lands (Cancellation of Leases) Edicts 1972 which purported to acquire the appellant’s property when considered not now against the Public Lands Acquisition Law, Cap. 105, but against the State Lands Law Cap. 122, are therefore prescribing new purposes as against those prescribed in Sections 22 and 23 of the State Lands Law and new circumstances in which the lessor can retake possession of land already leased out. This is a gross violation of Section 31(2) (b) of the Constitution of the Federation No.20 of 1963. The Edicts would on this ground equally be void. This conclusion would not in my view be affected by the fact that the draftsman of those Edicts chose to preface Section 3(1) of Edict No. 15 with the words “Notwithstanding the provisions of the State Land Law”. In fact I would rather hold that those words tend to strengthen this particular ground of challenge. But in accepting the violation of Section 31(2) (b) of Act No. 20 of 1963, I find it necessary to state that as regards that part of the section which contains “add to purposes” I only make reference to Sections 22 and 23 of the State Lands Law. I do not accept that any new purpose has been added under the Public Lands Acquisition Law in the sense in which there was such an addition in Ereku’s case supra. I think that the facts of that case can be distinguished from those in the case in hand. To accept such a construction of “public purpose” as was accepted in Ereku’s case as applicable to the facts of this case would be to give those words too restrictive an interpretation.

It is for the reasons  stated herein and the reasons stated in the judgment of my learned brother, Irikefe, J.S.lC., to which I had earlier made reference, that I agree to allow this appeal. I endorse all the orders contained in the judgment of my learned brother, Kayode Eso, J.S.C., a draft of which I saw. I would also endorse the order as to costs made by the presiding Justice, Irikefe, J.S.C.

M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgments read by my learned brothers, Idigbe and Eso, JJ.S.C. I agree with them that this appeal be allowed and the orders as contained in the judgment of my learned brother, Eso, J.S.C., be made.

The question whether the Rivers State Government should have been joined as a party to the action brought in the High Court by the appellants when the issue of the validity of Edicts Nos. 15 and 17 of 1972 was raised is crucial. The Edicts were pleaded by the defendants (respondents) in defence to the plaintiffs’ (appellants’) claim. It was to counter the defence that the appellants averred in their reply that the Edicts were unconstitutional and therefore null and void. The other question is whether the High Court of Anambra State had the jurisdiction to pronounce on the validity of laws made by the Government of the Rivers State the operation of which is limited to the Rivers State.

By Order IV  rule 5(1) of the High Court Rules Cap. 61 Laws of Eastern Nigeria, 1963, the High Court is required to order joinder of parties  “who may be entitled to or who claim some share of interest in the subject-matter of the suit, or who may be likely to have been affected by the result.” There is no doubt that the Rivers State Government was a party likely to have been affected by the High Court’s decision on the validity of Edicts Nos. 15 and 17 of 1972. As it transpired, the Government was not  joined. What then is the effect of the omission I am of the same view that it is indeed desirable that the Rivers State Government should have been joined as a co-defendant to the action; however the failure to do so is not in my opinion and for the reasons given by my learned brother, Idigbe, J.S.C., fatal to the plaintiffs’ case in the High Court as was held by the Federal Court of Appeal. In addition it seems to me that the provisions under Sections 213 (5) and 222(a) of the Constitution of the Federal Republic of Nigeria, 1979, are intended inter alia to remedy any miscarriage of justice that a prospective party might suffer as a result of non-joinder by the parties to an action or the court of trial. The sections, as relevant, read as follows:

“213(5) Any right of appeal to the Supreme Court from the decisions of the Federal Court of Appeal conferred by this section shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal Court of Appeal or the Supreme Court at the instance of any other person having an interest in the matter..”

“222 Any right of appeal to the Federal Court of Appeal from the decisions of a High Court conferred by this Constitution –

(a)    shall be exercisable in the case of civil proceedings at the instance of any other person having an interest in the matter …….”

Section 177 subsection (6)(a) of the Constitution of the Federation of Nigeria 1963 contained similar provisions and this court dealt with some of the circumstances under which an interested party who was not or could not be joined at the trial could appeal against the decision of the trial court – see Obagu & Ors. v. Okechi & Ors. (1964) All NLR 36, Sun Insurance Office Ltd. v. Victoria O. Ojemuyiwa, (1965) 1 All NLR 1 and Jarmakani Transport Ltd. v. Alhaji Kalia, (1965) 1 All NLR. 77.

It is significant to observe that the issue of joinder was not a ground of appeal before the Federal Court of Appeal nor was it raised by the respondents. The point was brought up suo motu by that court. If the Rivers State Government was interested in the case or felt aggrieved by the judgment of the High Court it was open to it to apply to the Federal Court of Appeal to have the decision varied – Obagu & Ors. v. Okechi & Ors. (supra). The same opportunity was available to it in this court. As a matter of fact, when the appeal came up before us for hearing it was adjourned to give the Rivers State Government the chance to appear and be heard on both the issues of joinder and the validity of Edicts Nos. 15 and 17 of 1972 but the invitation was not honoured by the Attorney-General of the Rivers State.

Where a plaintiff by his writ of summons or statement of claim or the defendant by way of counterclaim specifically asks for a declaration that a law is invalid the position will of course be different. In such a case the party asking for the declaration will of necessity be bound as a matter of practice or law or both to make the Legislature or the Executive, at whose instance the law is enacted, a party to the action.

The plaintiffs’ claim in the High Court was based on arrears of rent and mesne profits, for which the High Court had jurisdiction, see Section 22 of the High Court Law Cap. 61 (Laws of Eastern Nigeria 1963, Vol. IV) which states:

“22.(1) The court shall have jurisdiction to hear and determine any suit for specific performance or any suit founded upon a breach of contract if the contract was made within the jurisdiction of the court though the breach occurred elsewhere, or if the contract ought to have been performed within the jurisdiction or if the defendant or one of the defendants resides within the jurisdiction.

(2)  The court shall have jurisdiction to hear and determine any civil cause or matter other than one referred to in sub-section (1) in which the defendant or one of the defendants resides or carries on business within the jurisdiction of the court.”

The issue of the validity of Edicts No. 15 and 17 of 1972 merely arose incidentally. So that the pronouncement made by the High Court thereon primarily concerned the appellant and the respondents only. The Rivers State Government was not privy to the suit. In the circumstances, I agree that the High Court was competent to deal with the ancillary issues that arose in the course of its determining the claim brought by the appellants including the issue raised on the constitutional validity of the Edicts.

For these and the other reasons contained in the judgments aforesaid, this appeal must succeed and it is hereby allowed.

Other Citation: (1982) LCN/2152(SC)