Alhaji Karimu Adisa Vs Emmanuel Oyinwola & Ors- (2000)

LAWGLOBAL HUB Lead Judgment Report

O. AYOOLA

This is an appeal from the decision of the Court of Appeal (Akanbi, Kutigi, JJ.C.A (as they then were) and Omololu-Thomas, JCA). That court dismissed an appeal from the decision of the High Court of Oyo State (Okeyode Adesina, J) whereby judgment was entered against the defendant. The original plaintiff was one Alhaji Jimoh Akano, described as the Ikolaba of lgbetti, who claimed as representative of the Ikolaba family against the defendant, in his personal capacity, a declaration of customary right of occupancy to a piece of land described as ‘land of Ikolaba of Igbetti’, situate at Kishi in Oyo State, damages for trespass and injunction. Adesina, J., on 2nd July, 1985 entered judgment for the plaintiff, granted the declaration sought, awarded damages against the defendant for trespass and restrained him from committing further acts of trespass on the land. The defendant’s appeal to the Court of Appeal was dismissed on 21st June, 1988.

The original plaintiff having died sometime in September 1985, four persons were substituted as plaintiffs ‘for themselves and as representatives of Ikolaba Chieftaincy family’. For convenience, the appellant, and the respondents, who were, respectively, appellants and respondents in the court below, are referred to in this judgment, respectively, as ‘the defendant’ and ‘the plaintiffs’.

This appeal and judgment are in two parts. The first deals with the question of the jurisdiction of the High Court and, the second with the question of the merits of the case. Evidently, the second question arises only if the High Court was properly seised of the suit in the first place. Since the jurisdictional issue is a threshold issue, it is expedient that it be disposed of first. A narration of the facts of the case as they relate to the merits of the case is postponed till later in the judgment.-

The defendant, by the appellant’s brief, raised the jurisdictional question thus:

“Whether the Court below was not in error in failing to see that the trial court lacks jurisdiction over claims as formulated by the Plaintiff having regard to the provisions of the Land Use Act particularly Sections 39 and 41 thereof.”

The issue was raised neither in the High Court nor in the Court of Appeal. However, that notwithstanding, it is an issue which has been properly raised in this appeal. It is right to observe that had the issue been raised in those two courts, they, bound by decisions of this court, would have held, rightly, that the High Court had no jurisdiction. In one or two cases which will be presently considered, this court decided that exclusive jurisdiction to try proceedings in respect of customary rights of occupancy is vested pursuant to section 41 of the Land Use Act (Capt. 202: Laws of the Federation, 1990) (“the Act”) in the area court, customary courts or courts of equivalent jurisdiction in a state. Since the question has arisen in this case whether this court should depart from those decisions, counsel, drawn in such a manner as to reflect a wide range of opinion, have been invited to address the court on this issue as amici curiae. It is right, at the outset, to acknowledge and put on record the learning and industry that the amici curiae have demonstrated in the amici curiae briefs which have been of much assistance in the determination of this issue.

The jurisdictional issue arose because the plaintiffs have sought in the High Court of Oyo State a declaration of customary right of occupancy pursuant to the Act. The object of the Act was, as contained in the preamble:

“to vest all land comprised in the territory of each State (except land vested in the Federal Government or its agencies) solely in the Governor of the State, who would hold such land in trust for the people and would henceforth be responsible for allocation of land in all urban areas to individuals resident in the State and to organisations for residential, agricultural, commercial and other purposes while similar powers with respect to non-urban areas are conferred on Local Governments”

Section 2 of the Act provides that from the commencement of the Act “all lands in urban areas shall be under the control and management of the Governor of each State” while “all other land shall, subject to this Act, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated.” “Urban area” is such area of the State as may be so designated by the Governor pursuant to section 3 of the Act.

The power to grant statutory right of occupancy to any person for all purposes, whether in an urban area or not, is by section 5(1)(a) of the Act vested in the Governor, while by virtue of section 6(1) of the Act, the Local Government is granted power to grant customary rights of occupancy in respect of land not in an urban area. It is thus clear that the power to grant customary rights of occupancy is exclusively that of the Local Government. By virtue of section 51(1) of the Act “statutory right of occupancy” is defined in terms of grant. However, “customary right of occupancy” was defined, not solely in terms of grant, but as “the right of a person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a Local Government under this Act.”

By virtue of the transitional provisions made in sections 34(2) and 36(2) of the Act the rights of owners of land prior to the commencement of the Act were recognised and protected to such extent as was specified in the Act.

It is against the background of the scheme and purpose of the Act as summarised above that the jurisdictional issue has been raised. Part VII of the Act deals with “Jurisdiction of the High Courts and Other Courts”. The relevant sections for the purpose of this appeal are sections 39 and 41. Section 39 of the Act provides as follows:

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