Omosule Olisa V. Chief Olowodara Asojo (2001)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A.

In the writ of summons issued from the Ondo State High Court, Owo Judicial Division holden at Owo, the plaintiff/respondent sued for himself and on behalf of Ubara family of Ipele and claimed the following reliefs against the defendant/appellant (also for himself and on behalf of Amologunde family of Ipele) :-

(a) Declaration that the plaintiff is entitled to a customary right of occupancy in respect of the piece or parcel of land situated and being along Omiekan/Oma-Afoto Road Ipele via Owo.

(b) N2,000 damages for trespass committed and being committed by the defendant on the plaintiff’s said land.

(c) An injunction restraining the defendant, his servants and or agents from committing further acts of trespass over the plaintiff’s said land.

Pleadings were filed and exchanged with the plaintiff filing a reply to the statement of defence. The matter finally went to trial on 22/2/94. The Plaintiff testified in person and called three other witnesses before closing his case. Three witnesses testified for the defence with the defendant testifying as DW3. After the parties and their witnesses had finished testifying and were cross-examined, their counsel addressed the court and judgment was delivered on 12/5/94. The plaintiff succeeded in his claim and all the reliefs he sought in the writ were granted to him. He was awarded N500 general damages for trespass committed by the defendant. The plaintiff was further awarded N500 costs. The defendant is dissatisfied with the judgment and has appealed to this court in which he filed 4 grounds of appeal together with the notice of appeal and formulated four issues from the grounds filed.

The issues raised are:-

(1) Whether the High Court had jurisdiction to adjudicate on the matter before it having regard to the provisions of the Land Use Act 1978, particularly sections 39 and 41 thereof.

(2) Whether the land in dispute has been described with certainty.

(3) Whether the plaintiff’s root of title had been proved to the satisfaction of the court

(4) Whether there has been material variance and contradictions between the plaintiff’s pleading and evidence before the court.

The respondent did not formulate any issue for our determination. He merely agreed with the appellant that the High Court lacked jurisdiction to hear and determine the matter and urged us to allow the appeal but make an order remitting the case to Owo Customary Court for hearing and determination de novo.

The Supreme Court has finally settled the issue of jurisdiction where the claim involves a customary right of occupancy as it relates to sections 39 and 41 of the Land Use Act vis-a-vis section 236(1) of 1979 Constitution (which gives the High Court of a State unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right etc is in issue. See: Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116.

By this decision, the State High Court now exercises concurrent jurisdiction with the Area and Customary Courts to decide land matters subject to customary right of occupancy granted by a Local Government under the Land Use Act.