Maaji Galadima V. Alhaji Adamu Tambai & Ors (1993)

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OKUNOLA, J.C.A.

This is an appeal against the judgment of the Kaduna State High Court holden in Zaria delivered by S. M. Comassie J. (as he then was) on 7/4/90 in appeal No. KDZ/Z/68A/90 whereupon the court affirmed the judgment of the Upper Area Court Ikara and in addition ordered the Upper Area Court No.1 Zaria to retry the case.

The facts of this case briefly put are as follows:-

The appellant in this matter, Maaji Galadima, instituted an action against the 12 respondents/objectors herein, claiming from them his fathers farmland given to them by the Late Sarkin Gwanki, at Gwanki town. The respondents denied the claim. The appellant’s claim was tried by the Area Court No.1 Zaria City and judgment was entered in favour of Maaji Galadima, the plaintiff/appellant.

Being dissatisfied with this decision the twelve defendants/respondents appealed to the Upper Area Court Ikara, where they were represented by counsel, Mallam Dauda Umar, prominent of the grounds argued by counsel, was the complaint that the Area Court or Court of first instance lacked jurisdiction to try the matter since the land in dispute was situate within Ikara Local Government. In its judgment, the Upper Area Court, gave judgment on the merits of the proceedings and set aside the judgment of the trial area court No.1 Zaria City. The appellant, being dissatisfied with the decision of the Upper Area Court Ikara appealed to the High Court Zaria against the judgment of the Upper Area Court. Two grounds were argued. It is relevant to point out there that the appellant dealt with issues which emanated from the judgment of the Upper Area Court. Respondents counsel, at the High Court also responded to those same issues, he did not pursue his complaint of absence of jurisdiction at that court. In its judgment, the High Court, after having considered several authorities upheld the judgment of the Upper Area Court, Ikara and the order of retrial ordered by the Upper Area Court No. 1 Zaria to conduct a retrial on certain specific issues. It is this judgment that the Appellants have appealed against to this Honourable court on two grounds. No issue of jurisdiction is raised therein. However the Respondents through their new counsel Jaafaru Abbas-Ibrahim Esq, have suddenly raised the issue of lack of jurisdiction. He has done so by filing a notice of preliminary objection dated the 15th of June, 1993 pursuant to Order 3 Rule 15 of the Court of Appeal Rules 1981. The relevant portion reads thus:

(2) “Having regard to the records of proceedings of Zaria City Area Court No. 1 particularly the report of the visit of the farmlands, the subject matter of this appeal by the trial court, it is clear on the face  of the record that the farmlands situate at Tashar Filani under Makarfi district of former Ikara Local Government Area now Makarfi Local Government Area.

(3) Having regard to section 19(3) of the Area Courts Edict No.2 of 1967 together with the Area Courts jurisdiction Notice 1979 Kaduna State, the jurisdiction of Zaria City Area Court No. 1 is limited only within Zaria Local Government Area hence incompetent to adjudicate in respect of land in Tashar Filani under Makarfi District of Makarfi Local Government Area.

(4) Having regard to the decision of the Supreme Court of Nigeria on the interpretation of the application of Area Courts Edict No. 1 of 1967 and the Area Courts Uurisdiction) Notice 1977 in Alhaji Hashimu Garba Matari & 60 Ors. v. Ahmadu Dan Galadima & 1 other (1993) 2 SCNJ 122 at 137; (1993) 3 NWLR (Pt.281) 266, the Respondent will object that the appeal is incompentent in that the trial was a nullity and void.

However, before going further with this appeal, it is necessary to state that this Respondent’s Notice of preliminary objection contained in the Respondent’s brief touches on the jurisdiction of the court to entertain the matter which constitutes the subject matter of this present appeal. Since jurisdiction forms the basis of adjudication, it is reasonable to first deal with this objection, the outcome of which will determine whether or not to consider the substantive appeal. In this regard, it is pertinent to point out that the Respondent in the preliminary objection raised the following issue for determination in this court. This is:-

“Whether having regard to the provisions of sections 19(3) of the Area Court Law No.2 of 1967 together with the Area Courts (Jurisdiction) Notice 1977 of Kaduna State vis-a-vis the Supreme court of Nigeria decision in Alhaji Hashimu Garba Matari & Ors v. Ahmadu Dangaladima & lather (1993) 2 SCNJ 122 at 137; (1993) 3 NWLR (Pt.281) 266, the Area Court No. 1 Zaria City had jurisdiction to hear and determine the plaintiff/appellant’s claim, to wit being some parcel of farmland situate at Tashar Filani, Anguwan Dakutaje Kunkumi Gwanki at Makarfi in Ikara Local Government.

I must add here that the appellant’s counsel also formulated three issues all of which face into the one by the respondent.

Both parties have filed their relevant briefs which incorporated their reaction to this preliminary objection. Both counsel adopted and relied on these briefs and addressed us viva voice on the preliminary objection. At the hearing of the preliminary objection learned counsel to the Respondent J. Abbas-Ibrahim after adopting the Respondent’s brief on the preliminary objection he raised in the said brief filed on 29/9/93 observed that in view of the Appellant’s Reply brief on the Preliminary Objection he would like to add some points. In this regard, learned counsel referred to the issue canvassed in paragraph C. 06 on page 3 of this Respondent’s brief and cited the case of Lt. Col. (Mrs.) R.A.R. Finnih v. J. O. Imade (1992) 1 SCNJ 87 p. 102 lines 29-40 per Babalakin, J.S.C and p. 108 lines 20-25; (1992) 1 NWLR (Pt.219) 511. Learned counsel submitted that in view of this authority, the court can raise and determine the issue of jurisdiction without calling on the parties to address it particularly having regards to the Kaduna State Area Courts (Jurisdiction) Notice 1977 Kaduna State Laws (Annual Volume) 1976/1977. Learned Counsel for the Respondent contended that the facts of the case in Finnih v. Imade (supra) are in pari materia with the instant appeal. Learned Counsel further submitted that in view of s. 74 of the Evidence Act, any Superior Court, Court of Appeal inclusive can take judicial notice of the Kaduna State Area Courts (Jurisdiction) Notice 1977 contained in the Kaduna State 1976/77 Annual Volumes of Laws without calling on the parties to address it.

As regards paragraph C. 04 on page 3 of the respondent’s brief on the preliminary objection, learned counsel to the respondent relied on the case of Alhaji Hashimu Matari & 6 Ors. v. Ahmadu Dan Galadima & 1 Or. (1993)2 SCNJ 122 pp. 137 – 138; (1993) 3 NWLR (Pt.281) 266; Wayne (W.A.) Ltd. v. Euben E. Ekwunife (1989) 12SCNJ 199 P. 109; (1989) 5 NWLR (Pt.122) 422 and submitted

that the cumulative effect of these two judgments is to render this court bound to apply these two authorities. Learned counsel urged the court to allow the preliminary objection and dismiss the appeal for lack of jurisdiction.