Alhaji Jelani Mabera V. Peter Obi & Anor (1972)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

In Suit No. SO/9/1970 in the Sokoto High Court the plaintiff’s claim against the defendants jointly and severally, as formulated in his writ of summons, reads:-

“1. Recovery of his house and landed property valued at 5,000 (five thousand pounds) situate and lying off Rigia Dorowa, Sokoto. The said house was unlawfully attached and sold under a writ of execution by the first defendant to the second defendant while plaintiff was in the East-Central State during the disturbance in the country.

2. Declaration of title.
3. 200(pounds) damages for trespass.
4. Accounts of all monies collected as rents by the second defendant from time of sale and that such monies be paid to the plaintiff.
5. That the purported sale of the house by first defendant to the second defendant be set aside, declared null and void and of no effect.”

Pleadings were ordered and were duly filed and delivered.

The facts as found by the learned trial judge are not in dispute and may be summarised as follows:-

The plaintiff whose full name is Peter Obi owned a house near Rigia Dorowa in Sokoto in the North-Western State. He lived in a portion of the house up till 1966. As a result of the disturbances in the country in 1966, the plaintiff, who is an Ibo, left Sokoto some time that year and did not return to Sokoto until the end of the civil war in 1970.

On his return, the plaintiff found that the Standard Bank Nigeria Ltd. (1st defendant) had unlawfully sold his house to the second defendant in satisfaction of a judgment debt owed by one Robert Benjamin Obi Ofiogbu. He approached the first defendant about the erroneous sale but the Bank manager (1st defence witness) said there was nothing the Bank could do about it. The 1st defence witness testified as to the circumstances leading to the attachment and sale of the house as follows:-

“Our Bank had a customer named Robert Benjamin Obi Ofiogbu.

He had an account with our Bank. The account was overdrawn. Our solicitors obtained judgment against Mr. Ofiogbu in 1962. Judgment was obtained in the Kano High Court. I do not remember the suit number of the case. I see exhibit 1. I see Suit No. K/103/61 written on it. I recognise this as the suit number. The judgment obtained against Ofiogbu was a little over 1,500(pounds). The debtor paid in on a monthly basis for about four years and then left the town in 1966. When he left in 1966, there remained a little over 300(pounds) still to be satisfied by the judgment debtor. Our solicitors got a writ of attachment over the debtor’s immovable property to satisfy the remaining amount of 300(pounds). The writ was executed and the house sold by the Deputy Sheriff for 400(pounds). Our judgment debt was fully satisfied. Our Bank did not sell the house. The house was sold in 1967 and we got our money about two years later. In 1970 I was approached by Mr. Peter Obi who told me that he understood his house had been sold whereas he did not owe the Bank any money. Peter Obi in fact did not owe the Bank any money. We told him that there was nothing that could be done and that the matter was in the hands of the court, and that any action he should take to rectify the mistake should be through the court.”

The learned trial judge, after summarising the evidence adduced before him by both parties and after making findings of fact in favour of the plaintiff, then considered the law with respect to the erroneous sale and found as follows:-

“The law is clear that a purchaser of a property under the execution of a fifa steps into the shoes of the judgment debtor by purchasing no more than the ‘estate’ of the judgment debtor therein. In other words what is sold and what is bought at a sale in execution is the right, title and interest of the judgment debtor-Dadzie v. Kojo (1940) 6 W.A.C.A. 139. It follows therefore that if a certain property which is attached under execution by way of fifa turns out to be in any way encumbered, the purchaser buys subject to that charge or encumbrance. Thus having already found as a fact that the second defendant did not purchase the right, title and interest of Ofiogbu in the house sold, the plaintiff must succeed in his claim for a declaration of title. I order that the purported sale of the plaintiff’s house be set aside as being null and void and grant the plaintiff a declaration of title to the house situate and lying off Rigia Dorowa in Sokoto. I further order that the second defendant Alhaji Jelani Mabera do give up possession of the house aforementioned to the plaintiff within three days hereof, i.e. on or before the 7th March, 1971.”

The learned trial judge also found for the plaintiff in respect of his claim for damages for trespass. He, however, dismissed his claim for account.

The second defendant (Alhaji Jelani Mabera) has how appealed against this judgment. Four grounds of appeal were filed and argued before us. They are as follows:-

“(1) That the whole trial was a nullity in that the High Court had no original jurisdiction to try and determine the matter as it raises an issue as to the title to land, or interest in land which is subject to the jurisdiction of the Area Court in Sokoto.

(2) That the learned trial judge misdirected himself in law by holding that the decisions in the cases of Ghana Commercial Bank v. Chandiram [1960] 2 A.E.R. 865 and Dadzie v. Kojo (1940) 6 W.A.C.A. 139 are applicable to the facts in the matter before it, and that the plaintiff must (on that score) succeed in his claim before the court.

(3) That the learned judge erred in law in holding that ‘there can be no doubt that the 2nd defendant (the appellant) was (on the evidence before the court) a trespasser and therefore was liable in damages for trespass. ‘

(4) That the learned trial judge erred in law by failing to consider the provisions of sections 47 and 48 of the Sherrifs and Civil Process Law Cap. 123, Laws of Northern Nigeria, 1963 and for failing to declare the sale of the property in issue to the appellant, the 2nd defendant, as being absolute.”

Arguing the first ground of appeal, Mr. Gaji, who appeared for the 2nd defendant/appellant, indicated that he had no complaint against the findings of fact made by the learned trial judge. His main, and indeed his only submission on this ground, was that the learned trial judge had no original jurisdiction to hear the case. Original jurisdiction in land matters, learned counsel further submitted, lay in the Sokoto Area Court. In the course of his submission, Learned counsel requested us to decide this issue of jurisdiction first because if his submission was sustained, it would result in the whole trial being declared null and void thus making it unnecessary to consider and determine the other grounds of appeal.

In support of his submission, learned counsel referred us to section 17 of the High Court Law of the Northern States (Cap. 49) which provides that, subject to the provisions of the Land Tenure Law (Cap. 59) and of any other written law, the High Court shall not exercise original jurisdiction in any suit or matter which raises any issue as to title to land or as to title to any interest in land which is subject to the jurisdiction of a native court. We were also referred to sections 14,15,17 and 18 of the Area Courts Edict, 1967 (No. 1 of 1967) which provide for the establishment of and the jurisdiction of Area Courts in the NorthWestern State; section 14 enables any person to sue in an Area Court while section 15 sets out the persons who are subject to the jurisdiction of Area Courts. Section 17 sets out the grades of the Area Courts, namely Upper Area Courts, and Area Courts grades I, II and III; and their jurisdiction and powers, subject to section 17(2), are set out in the First Schedule to the Edict. Mr. Gaji then submitted that there was, at the time the case was heard in the Sokoto High Court, an Upper Area Court in Sokoto established under the Area Courts (Jurisdiction) Notice, 1968 (N.W.S.L.N. 9 of 1968) as shown in the schedule to that Notice (see p. B 14 of Schedule). It was also pointed out to us that there is provision in Part 2 of the First Schedule to the Area Courts Edict (No. 1 of 1967) that the Upper Area Court in Sokoto has unlimited jurisdiction “in all causes and matters concerning the ownership, possession or occupation of land.” Learned counsel then referred us to the decision of the High Court of Northern Nigeria in Kosoko v. Nakoji (1959) N.R.N.L.R. 15 at p. 16 where it was held that the jurisdiction of the High Court in land matters was ousted by the provisions of section 16 (now section 17) of the Northern Region High Court Law where the land and the parties are subject to the jurisdiction of a native court.

For the plaintiff/respondent, Dr. Onwuamaegbu pointed out that the exclusion of the jurisdiction of the High Court is subject to the provisions of the Land Tenure Law or of any other written Law. He also referred us to section 41 subsections (3)(a) and (c) and (4) of the Land Tenure Law which read:-

“41. (3) The High Court and District Court (within the respective limits prescribed in the District Courts Law) shall have jurisdiction in the following proceedings:-

(a) proceedings in respect of any land the subject of a statutory right of occupancy granted by a native authority or of a customary right of occupancy where one or more of the parties are not subject to the jurisdiction of native courts or area courts ….

(c) proceedings in respect of any land the subject of any right of occupancy other than those otherwise specifically described in this section.

(4) ‘Proceedings in respect of any land the subject of a right of occupany’ shall include proceedings for a declaration of title to a right of occupancy.”

He then submitted that because of the above provisions, the jurisdiction of the High Court to hear the case was not ousted. Learned counsel also pointed out that as the Standard Bank Nigeria Ltd. (1st respondent) is a limited liability company and is not therefore subject to the jurisdiction of the Area Court or Native Court, the High Court was competent to hear the case. It was also submitted that where land is attached by the order of the High Court, the High Court had original jurisdiction to hear any proceedings arising as a result of the attachment. With respect to the provisions of section 14 of the Area Courts Edict, learned counsel pointed out that the section is subject to the provisions of section 41(3)(a) and (c) of the Land Tenure Law which gave the High Court jurisdiction and that the Area Courts Edict did not affect the matter. It was also submitted that the High Court has inherent jurisdiction to hear the matter. Finally, Dr. Onwuamaegbu admitted that any objection to the jurisdiction of the High Court would only affect the claims for declaration of title, damages for trespass and recovery of possession and not those dealing either with accounts or for an order setting aside the sale or declaring it null and void.

Mr. Oyetunde who appeared for the 1st defendant/respondent informed us that his clients (Standard Bank Nigeria Ltd.) were not interested in the appeal.

On the arguments adduced before us in this appeal, the questions which we are called upon to decide may be summarised as follows:-

(a) Does the suit raise an issue as to title to land or as to the title to an interest in land

(b) Is the land in dispute subject to the jurisdiction of an Area Court

(c) Are the parties subject to the jurisdiction of an Area Court

With respect to the first question, there is no doubt that the second leg of the claim raises an issue of title to the piece of land lying off Rigia Dorowa in Sokoto while the first, third, fourth and fifth legs of the claim, in the particular circumstances of this case, raise an issue as to an interest in the said land.

The next question is, how is the claim affected by the provisions of section 17(1)(a) of the High Court Law The provisions are as follows:-

“17. (1) Subject to the provisions of the Land Tenure Law and of any other written law the High Court shall not exercise original jurisdiction in any suit or matter which:-

(a) raises any issue as to the title to land or as to the title to any interest in land which is subject to the jurisdiction of a native court.”

We think we should point out at this juncture that section 2 subsection 2 of the Area Courts Edict provides that:-

“Without prejudice to the provisions of section 10 of the Interpretation Law, references in any Law to a native court shall, unless the contrary intention appears, be construed as references to an area court as defined in subsection (1).”

An area court is defined in subsection (1) as a court established under or in pursuance of the Area Courts Edict or deemed to have been so established and as including an upper area court.

Dr. Onwuamaegbu has pointed out, quite rightly, that the above provisions of the High Court Law are subject to those of section 41(3)(a) and (c) of the Land Tenure Law to which we had referred earlier. It seems to us, however, that for those provisions to apply the land in dispute must be subject “to a statutory right of occupancy granted by a native authority or of a customary right of occupancy where one or more of the parties are not subject to the jurisdiction of native courts or area courts.”

In his testimony before the court, the plaintiff/respondent had these to say about the house in dispute:-

“When I first came to Sokoto I bought the house from Mr. Know.

I bought this house in 1945. I roofed the house. I lived in the house after I bought it. … I only left this property when I went to my hometown. I went to my home town in 1966, the year in which the disturbances broke out in Nigeria.”

When questioned about payment of rent on the plot on which the house was built, the plaintiff/respondent replied:-“In Sokoto no fees were paid for the plot. I paid tax to the Sokoto N.A. The Ward Head and the N.A. look after the plot in Sokoto. There was no procedure of receiving a plot for a term of years in Sokoto. I could stay for as long as I like on my plot in Sokoto …. When I bought the house from Mr. Know, the Sokoto N.A. never asked for rent in respect of the plot. I was never asked to pay any rent by the Sokoto N.A. from the time I bought the house till I left Sokoto in 1966. When I bought the house from Mr Know there were no terms of years in Sokoto.”

In support of his outright ownership of the house, the plaintiff/ respondent called one Mohamadu Jabba Sarkin Yaki Gaji (plaintiff’s 4th witness), the secretary to the Marafa. He testified as follows:-

“I am a tax collector. Anything concerning the houses in Sokoto town is my responsibility. When houses are bought and sold in Sokoto town I would know. A buyer is given paper that he has purchased landed property. I know the plaintiff very well. I have known the plaintiff since he came to Sokoto. I cannot remember the year he came, but it is a long time ago. The plaintiff has a house in Sokoto. The plaintiff owns a house in Rigia Borowa, Sokoto. I do not know for how many years the plaintiff has owned a house in Sokoto. To my knowledge the plaintiff never paid land rent to my office for the house. The Sokoto N.A. never asked land rent from the plaintiff to my knowledge. I have been working with the Sokoto N.A. since 1940.”

On re-examination, this witness explained that it was only since 1962 that his office started issuing papers in respect of purchases of land in Sokoto.

It is on this undisputed evidence of both the defendant/appellant and the 4th plaintiff’s witness that the learned trial judge, quite rightly in our view, found that the plaintiff/respondent was the owner of the land in dispute at the time of attachment and sale and granted his claim for declaration of title. We would only add that no evidence was adduced that the land in question was at any time subject to any statutory or customary right of occupancy so as to bring it within the jurisdiction of the High Court as provided for in section 4(3)(0) and (c) of the Land Tenure Law (Cap. 59). The undisputed evidence which the learned trial judge accepted was that the plaintiff/respondent bought the house outright and paid no rent on the plot on which it was built to the Sokoto N.A.

It now remains for us to consider whether the parties would have been subject to the jurisdiction of the Upper Area Court in Sokoto. Learned counsel for the plaintiff/respondent has submitted that the Bank (1st respondent) being a limited liability company, is not subject to the jurisdiction of that court. He, however, seemed to have overlooked the provisions of section 2 of the Area Courts (Limitation of powers) Order 1968 (N.W.S.L.N. 6 of 1968) which read:-

“2. It is directed that the powers conferred upon area courts by the Area Courts Edict, 1967, shall not be exercised by an area court, other than an upper area court, over any company incorporated or formed and registered under the Companies Act.”

Since the Standard Bank Nigeria Ltd. (1st defendant/respondent) was and is still a company registered under the Companies Act, it follows that, in respect of the powers conferred upon it, an upper area court has jurisdiction over the said Bank.

What then are these powers It is not in dispute that an Upper Area Court has been established in Sokoto (see the Schedule to the Area Courts (Jurisdiction) Notice, 1968 N.W.S.L.N. 9 of 1968). This Upper Area Court has unlimited jurisdiction in causes and matters concerning ownership, possession, or occupation of land situated in Sokoto (see Part 2 of the First Schedule to the Area Courts Edict (No. 1 of 1967) and section 19(3) of the said Edict).

On the facts not in dispute, it seems to us that the claims, taken together, raise an issue as to title to land and also as to title to an interest in land. As we had pointed out earlier, no evidence was adduced to show that the land is subject to any statutory or customary right of occupancy so as to confer jurisdiction in respect of it on the Sokoto High Court. Finally, as the law stands, the Standard Bank Nigeria Ltd. is subject to the jurisdiction of the Upper Area Court in Sokoto. The claim, to our mind, should have been commenced in that Upper Area Court.

For these reasons we have reluctantly come to the conclusion that the Sokoto High Court could not justifiably exercise original jurisdiction in respect of the claim. Learned counsel for the plaintiff/respondent, in the course of his argument, has also submitted that the High Court, apart from statutory provisions, has inherent jurisdiction to hear the case. In our view, this cannot be so because the inherent jurisdiction of the court is exercisable only as part of the process of the administration of justice; it is part of the procedural law, both civil and criminal, and not of substantive law. It is invoked only in relation to the process of litigation. Therefore, if the jurisdiction of the court is ousted by statute, the inherent jurisdiction of the court cannot be invoked to circumvent the clear provisions of the statute.

We are accordingly compelled to hold that the jurisdiction of the Sokoto High Court is ousted by the provisions of section 17(1)(a) of the High Court Law of the Northern States and also that section 41(3)(a) and (c) of the Land Tenure Law (Cap. 59) of the same States confers no jurisdiction on that court. All the proceedings in the Sokoto High Court in respect of the claims are null and void (see Lanleyin v. Jimoh Rufai (1959) 4 F.S.C. 184).

This appeal must therefore be allowed. The proceedings in the Sokoto High Court in Suit No. SO/9/1970 are declared null and void and the judgment of the learned trial judge, including the order as to costs, delivered in pursuance thereof, is set aside. The plaintiff/respondent’s claim is accordingly struck out with no order as to costs.

SC.315/1971