Alhaja Falilatu Babalola V. Chief Ibatu Obaoku-ote & Anor (2004)
LawGlobal-Hub Lead Judgment Report
ADEKEYE, J.C.A.
This appeal is against the judgment of the High Court of Justice, Ogun State, Otta Judicial Division delivered on the 7th day of July, 1999. The matter before the High Court is by itself an appeal against the judgment of Ifo Grade II Customary Court delivered on the 19th of September, 1990, in suit No. AGB/173/84. The original notice of appeal had one ground of appeal. At the time the appeal was argued, the appellant asked for leave to file and argue additional grounds of appeal on 11/4/97, which application was granted. While arguing the appeal, the learned Counsel for the appellant – Mr. O.O. Ojutalayo decided to argue ground one of the additional grounds of appeal which relates to the issue of jurisdiction. The ground of appeal reads:
Ground 1
“The lower court – Ifo Grade II Customary Court erred in law in adjudicating over a matter in which it lacks jurisdiction.
Particulars of error
(1) The Customary Court lacks jurisdiction to adjudicate over a land matter in respect of which the annual rental value is over N200.00.
(2) The annual value of the land in dispute herein as stated in the summons is N500.00.”
The plaintiff’s claim as per her summons at the Ifo Grade II Customary Court is as follows:-
(i) Plaintiff seeks for declaration of title claiming the lawful ownership of a piece of land which was inherited from my late father Abudu Sati Areago with the purchase receipt dated 21st of April, 1940.
(ii) The plaintiff’s claim against the defendant is for the sum of One thousand naira (N1,000) being for trespass on the landed property, being and lying at Aboro Area of Agbado in Ifo/Otta Local Government Area.
(iii) The boundaries are as follows-
“On the right by late Baba Alawofun landed property. On the left by Asorobi landed property. At the upper by Oto landed property. At the south by Oto landed property.
(iv) That an interim injunction to restrain the defendant, her agents or privies from doing or entering into the said land in dispute pending the determination of this case by the Honourable Court.
The annual rental value of the said landed property is valued five hundred naira. The case proceeded to trial and judgment was entered in favour of the plaintiff. The defendants were dissatisfied with the judgment hence they proceeded on appeal to the Otta High Court- which in its judgment of 7th July, 1999, set aside the judgment of the Customary Court and struck out the suit on the ground that the court of first instance exceeded its jurisdiction in adjudicating over the suit.
Being dissatisfied with this judgment the plaintiff/appellant has appealed to this court on two grounds which are contained in the notice of appeal filed 12th July, 1999. In accordance with the Court of Appeal Rules, 2002 – the parties filed and exchanged pleadings. At the hearing of this appeal- the appellant relied on the brief deemed filed on 19/6/01, and the respondent on his brief filed 27/11/01.
In his brief – the appellant disseminated three issues for determination by this court as follows:-
(1) Whether or not, the judicial power vested in the Customary Court in Nigeria to adjudicate on land matters by virtue of section 41 of the Land Use Act is a constitutional provision on Customary Courts to hear land matters.
(2) Whether or not, an identical provision in the Land Use Decree, 1978, vesting jurisdiction in Customary Courts in Nigeria to adjudicate on land matters is constitutional provision that would have the effect of invalidating the identical legislation on the same subject-matter passed by the State Legislature vesting different jurisdiction on three different grades of Customary Court.
(3) Whether or not, Ifo Grade II Customary Court which adjudicated on the above matter at the lower court had jurisdiction to do so.
The three issues are based on the two grounds of appeal filed by the appellant.
I will like to reiterate the attitude of the courts to proliferation of issues for determination in an appeal.
Although an issue for determination may compass one or two or more grounds of appeal, it is incompetent and inelegant to formulate two or more issues for determination from a single ground of appeal; or three issues from two grounds of appeal. Iyanda v. Laniba II (2003) 1 NWLR (Pt.801) 267; Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563; Adeyemi v. Olakunri (1999) 14 NWLR (Pt. 638) 204; Ebba v. Ogodo (1984) 1 SCNLR 372; Nwankwo v. Federal Republic of Nigeria (2003) 4 NWLR (Pt. 809) 1.
Ordinarily, a ground of appeal from which no issue is formulated shall be deemed abandoned. I can observe that the first two issues are covered by the ground one of this appeal, and the appellant covered both issues with the same argument in his brief. Grounds one and two of the issues shall be compressed into one issue. The appellant shall argue two issues for determination in this appeal.
The respondent in his brief distilled two issues for determination.
(i) Whether the jurisdiction of Customary Courts on land matters in Ogun State is derived from the Constitution of the Federal Republic of Nigeria, 1979 or the Customary Court Law/Edict of Ogun State.
(ii) Whether the learned Judge of the High Court was not correct in holding that the Ifo Grade II Customary Court had no jurisdiction to adjudicate over the suit before it when the subject-matter of the suit exceeded the jurisdiction prescribed by the Customary Courts Law or Edict of Ogun State.
In arguing issue one of the appeal – the appellant submitted that since it is the Land Use Act, 1978 – a Federal enactment in Nigeria which makes provision for Customary Courts to hear land matters, then this is an express provision of the Constitution conferring jurisdiction on Customary Court to hear land matters. By virtue of section 41 all Customary Courts in Nigeria have judicial power to adjudicate on land matters in Nigeria without any distinction in the grades of Customary Courts. When an enactment empowers a court to adjudicate on a matter – then the enactment has the effect of giving a judicial power to adjudicate on such a matter and consequently that court will have jurisdiction to hear any action filed before it claiming any reliefs in such a matter before the court.
The learned trial Judge was erroneously directing his mind to the fact that jurisdiction to hear land matters was specifically provided by Ogun State Legislature – vide page 59 lines 24-32 and page 60 lines 1-22 – whereas it is the judicial power to adjudicate on land matters that was vested in Customary Court by virtue of the provision of section 41 of the Land Use Act – and not jurisdiction to hear cases provided for by the Ogun State Legislature. The learned trial Judge in striking out the claim of the appellant opined that the issue in the appeal before him relates to judicial power vested in the Customary Courts by virtue of the provisions in the Land Use Act but the issue relates to jurisdiction which was provided for by the State Legislature. The appellant cited the case of Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 at 1986.
The jurisdiction vested in the Customary Court by virtue of section 41 of the Land Use Act which has been entrenched in the 1979 Constitution is to hear land matters and grant-
(a) Declaration of entitlement to customary right of occupancy;
(b) Damages for trespass on land; and
(c) An order of injunction restraining trespassers from committing any further acts of trespass on the land matter which is the subject-matter in dispute before Customary Courts.
The court should look at the statement of claim of the plaintiff to decide whether it has jurisdiction.
The appellant relies on the case of Akinsanya v. U.B.A. Ltd (1986) 4 NWLR (Pt. 35) 273.
The respondent replied and emphasized this issue before this court relates to jurisdiction – it can therefore be raised at the High Court for the first time – and cannot be waived though the respondent failed to raise an objection at the Customary Court. The respondent emphasized that parties have no power to waive a right or power by statute neither can they confer jurisdiction where a court has none. The enabling statute of any court has to be examined in determining jurisdiction – like the Constitution creating the superior courts of record – and the State Legislature creating the Area/Customary Magistrate Courts. They determine the scope and extent of their powers and jurisdiction. The Customary Courts in Ogun State were created by the Customary Law, 1980 and section 3, and Customary Court Edict, 1986 – section 1 pursuant to section 6(4) of the 1979 Constitution. It is only Customary Court Laws and Edict which created the Customary Court which can stipulate and regulate its jurisdiction. The Land Use Act, 1978 by virtue of section 274(5) of the 1979 Constitution – was incorporated into the constitution – and enjoys the status of the provisions of the constitution. There is also no conflict whatsoever in the provisions of section 41 of the Constitution and sections 3 and 1 of Customary Court Law and Edict 1980 and 1986 respectively in their jurisdiction of customary right of occupancy. The jurisdiction of Customary Courts in Ogun State is specified in the Customary Court Law and Edict of that State. Any litigant approaching the Customary Court for redress must approach one that is competent according to the enabling law and statutes. The jurisdiction of the Customary Court of Ogun State is not based on the limited provision of section 41 of the Land Use Act, 1978. The powers conferred on the Customary Courts of Ogun State are not merely procedural matters – they are substantive and constitute the bedrock of the authority of such courts to adjudicate.
On issue one the respondent cited the cases of –
The State v. Dr. Olu Onagoruwa (1992) 5 NWLR (Pt.244) 713, (1992) 2 SCNJ (Pt. 1) 1; Bronik Motors v. Wema Bank (1983) 1 SCNLR 296; Barclays Bank v. Central Bank of Nigeria (1976) 1 All NLR 409 at 419; Shell Petroleum Development Co. v. Isaiah (2001) 11 NWLR (Pt.723) 168, (2001) 5 SCNJ 218 at 223-224; Attorney-General, Bendel State v. A.-G., Federation (1981) 10 SC 1; Anori v. Elemo (1983) 1 SCNLR 1 at 14-17, Ejike v. Ifeadi (1998) 8 NWLR (Pt.561) 323, (1998) 6 SCNLR 87.
On issue two – the appellant submitted that the lower court erred in holding that the Ifo Grade II Customary Court had no jurisdiction to adjudicate on the above subject matter. The appellant contended that by virtue of section 274(5) of the 1979 Constitution, which is applicable when this case was filed at the Ifo Grade II Customary Court the Land Use Act was entrenched in the 1979 Constitution. By the provision of section 274(5) of the 1979 Constitution the Land Use Act has the force of constitutional provision. By virtue of section 41 of the Land Use Act which conferred jurisdiction on the Customary Courts in Nigeria to hear land matters irrespective of their grades has covered the whole field of that particular subject-matter, to enable the jurisdiction conferred by the Land Use Act of 1978 in Customary Courts Law No. 14 of 1980 and sections 1, 2, 4 and 16 of the Customary Edict of Ogun State, 1986. The High Court of Otta was wrong to have held that Ifo Grade II Customary Court has no jurisdiction.
The appellant referred to the cases of Oseni v. Dawodu (1994) 4 NWLR (Pt. 339) 390; Ogunsina v. Ogunleye (1994) 5 NWLR (Pt. 346) 625 at 634.
The respondent replied by referring to the appellant’s claim and emphasized that the annual rental value of the land was put as N500. Sections 17 and 16 of the Customary Law and Edict provide that:-
“The jurisdiction and power of a Customary Court in civil cases and matters shall be as set out in the First Schedule to this Law (Edict). The jurisdiction of the Customary Court according to the Schedule to the two legislations in relation to land matters stipulates that:-
‘Causes and matters in which the value of the land does not exceed N1000 or in which the rental value does not exceed N200.00 per annum.”
The appellant indicated the annual rental value of her land as N500 which is obviously over and above the judicial powers of the Ifo Grade II Customary Court. The High Court was right in declaring the jurisdiction void and striking out the claim. The respondent cited the cases of Adikatu Onasanya v. Adegunle Sapitan (1975) 1 NMLR 30; Alade v. Alemuloke (1988) 1 NWLR (Pt. 69) 207.
I have painstakingly considered the submission of both counsel in this case. I will like first and foremost to remark that the issue in hand being that of questioning the jurisdiction of the Ifo Grade II Customary Court to entertain a suit – cannot be brushed aside with a wave of hand. Jurisdiction is very fundamental in the realm of the administration of justice. Any form of pronouncement by a court or tribunal without jurisdiction is an exercise in futility hence the issue of jurisdiction can be raised at any stage of the proceedings, before a court of first instance or even at the Supreme Court. The issue can be raised by any of the parties or by the court suo motu, Whenever it is raised it has to be dealt with timeously. Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116 SC; Ogunmokun v. Military Administrator Osun State (1999) 3 NWLR (Pt. 594) at 261; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Bronik Motors v. Wema Bank (1983) 1 SCNLR 296; Okonkwo v. INEC (2004) 1 NWLR (Pt. 854) 242; Federal Government of Nigeria v. Oshiomole (2004) 3 NWLR (Pt. 860) 305.
It is the consensus of the parties to this appeal that courts are set up by the Constitution, Decrees, Acts, Laws and Edicts, and they cloak the courts not only with powers and jurisdiction, such jurisdiction is therefore confined, limited and circumscribed by the statute creating them. If these statutes do not grant jurisdiction to a court or tribunal the court and the parties cannot by agreement endow it with jurisdiction.
A court cannot even give itself jurisdiction by misconstruing a statute. African Newspapers of Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137.
The contention of the appellant that the issue of jurisdiction can be waived is misplaced as parties cannot by consent or collusion vests a court with jurisdiction or waive any constitutional provision. Federal Government of Nigeria v. Oshiomole (2004) 3 NWLR (Pt. 860) 305.
It is also pertinent to define judicial power and jurisdiction. The judicial powers of the court are vested in the courts according to the Constitution – Section 6 of the 1979 Constitution and also section 6 of the 1999 Constitution. Since it is fundamental that the rights of parties in litigation are determined on the substantive law in force at the time of the act in question – the 1979 Constitution shall be the operative statute for the purpose of this appeal- as the Constitution in operation as the law in force at the time of the complaint of the appellant Omisade v. Akande (1987) 2 NWLR (Pt. 55) 158; Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) pg. 539, Bank of Baroda v. Iyalabani Ltd. (1998) 2 NWLR (Pt. 539) pg. 600.
Terms judicial power and jurisdiction are frequently used interchangeably – there is a clear distinction between the two. “Jurisdiction is defined as the power of the court to hear and determine the subject-matter in controversy between the parties.” In other words – jurisdiction is the authority of the courts to exercise judicial powers which is the totality of powers a court exercises when it assumes jurisdiction to hear a case. You must first have jurisdiction before you can proceed to exercise power.
Judicial power is a very wide expression apart from its meaning as the power which every sovereign authority must possess to enable it settle and decide controversies between its subjects and itself, it also co-exist with the power of the State to administer public justice and again with the power of the State to make laws and execute them as well. Bronik Motors v. Wema Bank (1983) 1 SCNLR 296.
The operative Constitution here is the 1979 Constitution which has a section for the creation of the superior courts of record in the land both at Federal and State level, first instance and at appellate level. The section defines the establishment of such courts, appointment of members of the courts, jurisdiction of the court, both of first instance and appellate level, Constitution for the purpose of exercising its jurisdiction, practice and procedure in the courts. There are inferior courts and tribunals which are not appointed by the Constitution but their appointments are left as specified by the Constitution with the State House of Assembly to promulgate laws creating such courts like the Magistrate Courts and Customary Court. By virtue of the relevant section of the 1979 Constitution – the Customary Court Law of Ogun State, 1980 and the Customary Court Edict, 1986 of Ogun State were created by the State Legislature. Like in the case of the Constitution and the superior courts of record – the issue of the appointment, membership and constitution, jurisdiction and extent of powers of such courts are embodied in the Customary Court Law and Edict particularly in respect of their jurisdiction over land. These statutes will also indicate the hierarchy of these courts.
The 1978 Land Use Act was not invalidated by the 1979 Constitution and by virtue of section 274(5) it was incorporated into the provision of the Constitution to the like extent of any other provisions forming part of the Constitution. It is however indicated that the Land Use Act is not an integral part of the Constitution and could not whittle down or override any provision of the Constitution. It is therefore clear that where the provisions of the Act are inconsistent with those of the Constitution – then those in conflict with the Constitution are to that extent void. Lemboye v. Ogunsiji (1990) 6 NWLR (Pt. 155) 210; Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 SC.
The effect of the Land Use Act on the jurisdiction of the Customary Court in respect of land matters are that:-
(1) Two types of right of occupancy were thereby created which are-
(a) Statutory right of occupancy for land in urban areas.
(b) Customary light of occupancy for land in rural areas.
(2) By virtue of sections 34(2) and 36(2) of the Act rights of owners of land prior to the commencement of the Act were recognized and protected to such extent as specified therein.
(3) The Act redefines the jurisdiction of the courts referred to therein so as to ensure that courts such as the Customary Courts in Southern States which had previously been exercising concurrent jurisdiction with the High Court without distinction by classification of law have their jurisdiction limited as stated therein.
(4) Customary Courts or similar courts in Southern Nigeria whose jurisdiction in land matters in most cases had in most cases depended on the value of the land and in some cases had no such jurisdiction at all now have jurisdiction in land matters although only in rural areas irrespective of the value of the land.
Section 41 of the Land Use Act confers in equivocal terms jurisdiction on the Area Courts, the Customary Courts or other courts of equivalent jurisdiction in a State to entertain actions relating to disputes over land subject to customary right of occupancy granted by a Local Government under the Act or for a declaration of title to a customary right of occupancy to such land. There is no other form of land tenure. By virtue of section 2 of the Land Use Act, 1978, 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 the Act be under the control and management of the Local Government within the area or jurisdiction of which the land is situated.
I wish to commend the case of Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 SC to parties which I consider as the locus classicus on this matter. The State Legislature in Ogun State is not deprived of the power of creating the Customary Courts in its area and defining the powers, scope and jurisdiction of the courts – but their jurisdiction on issue of land is as handed over by the Land Use Act, 1978, which is to cover land in rural areas regardless of their value. A litigant is entitled to seek redress in a land matter in any grade of the Customary Courts regardless of the value of the land.
The Ifo Grade II Customary Court can entertain a suit over a land which rental value is more than N200 – the subject-matter of the case being within its jurisdiction. The appeal lacks merit and it is hereby dismissed. The decision of the High Court, Otta is set aside – while the judgment of the Ifo Grade II Customary Court is affirmed.
N5,000 costs to the respondents.
Other Citations: (2004)LCN/1631(CA)