Alhaji Karimu Adisa V Emmanuel Oyinwola & Ors (2012)
LAWGLOBAL HUB Lead Judgment Report
E.O. AYOOLA, J.S.C.
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 Igbetti, 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 (Cap. 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 organizations 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 recognized 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 summarized 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 Section 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 –
(a) proceedings in respect of any land the subject of a statutory right of occupancy granted by the Governor or deemed to be granted by him under this Act, and for the purposes of this paragraph, proceedings include proceedings for a declaration of title to a statutory right of occupancy.
(b) Proceedings to determine any question as to any person entitled to compensation payable for improvements on land under this Act.
(2) All laws, including rules of court, regulating the practice and procedure of the High Court shall apply in respect of proceedings to which this section relates and the laws shall have effect with such modification as would enable effect to be given to the provisions of this section.’
Section 41 of the Act provides that:
‘An area court or a customary court or other court of equivalent jurisdiction in a state shall have jurisdiction in respect of proceedings in respect of a customary right of occupancy granted by a Local Government under this Act; and for the purpose of this paragraph proceedings include proceedings for a declaration of title to a customary right of occupancy and all laws including rules of court regulating practice and procedure of such courts shall have effect with such modifications as would enable effect to be given to this section.’
It was argued in the appellant’s brief of argument that having regard to the provisions of the Act just quoted and some previous decisions of this court, the court below should have seen, as the trial judge also ought to have seen, that the High Court had no jurisdiction to entertain the action. The previous decisions on which reliance was placed were: Salati v. Shehu (1986) All NLR 53, 76; Sadikwu v. Dalori (1996) 4 SCNJ 20; (1996) 5 NWLR (Part 447) 151; and, Oyeniran and Ors. v. Egbetola and Anor (1997) 5 SCNJ 94; (1997) 5 NWLR (Part 504) 122. Dr. Kayode-Adedeji, Attorney General of Osun State, who appeared amicus curiae, supported these submissions.
For their part, the plaintiffs by their respondents’ brief of argument, argued that ‘the High Court, the area and customary courts have unfettered concurrent jurisdiction to entertain proceedings dealing with a customary right of occupancy under section 41 of the Land Use Act, 1978.’ It was submitted that if it were the intention of the legislator that only area courts or customary courts should have original jurisdiction in respect of customary right of occupancy, the legislators would have clearly said so by the inclusion of the word ‘exclusive’ in section 41 as it did in section 39. To hold otherwise, it was submitted, would be to import into that section what was clearly not the intention of the legislator. It was argued that to interpret section 41 as granting exclusive jurisdiction to the court mentioned in that section would curtail the “unlimited jurisdiction’ granted to the High Court of a State by section 236(1) of the 1979 Constitution and that any such construction would render section 41 void by reason of inconsistency with the said provisions of the 1979 Constitution. Finally, learned counsel for the plaintiffs urged this court to review and over-rule the three decisions relied on by the defendant as they were given ‘oblivious of the provisions of section 236(1) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Decree No. 107 of 1993.
The position taken by the learned counsel for the plaintiffs found ample support in the well researched and helpful submissions of Mr. Kanu G. Agabi, SAN, Attorney-General of the Federation, Mr. Kehinde Sofola, SAN, Mr. Clement Akpamgbo, SAN, Mr. Abdullahi Ibrahim, SAN, and Mr. Awa Kalu, Attorney-General of Abia State who all appeared on the invitation of the court as amici curiae. Since there is considerable unanimity in their submissions which cover substantially the same grounds, what can be regarded as the common ground in the submissions can be stated without diminishing from the weight and cogency of individual submissions.
The submissions went thus: first, since section 41 omitted the word ‘exclusive’ to qualify the jurisdiction granted to the courts mentioned in that section, the intention of the legislator was not to confer exclusive jurisdiction on those court; secondly, the opinion expressed by Karibi-Whyte, JSC, in Salati v. Shehu (supra) that the jurisdiction of the High Court and area courts and customary courts under the Act are mutually exclusive having been given obiter, should not have been relied on in Sadikwu v. Dalori (supra); thirdly, had this court considered the effect of section 236(1) the 1979 Constitution, section 41 would have been differently interpreted; fourthly, the Act was not an integral part of the 1979 Constitution, therefore such of its provisions that are inconsistent with the provisions of the Constitution are void to the extent of such inconsistency; fifthly, the unlimited jurisdiction which the High Court of the State had before the commencement of the Act cannot be taken away by implication, and the court should approach the question of the jurisdiction of the High Court on the footing that it exists to determine any suit whatsoever except what is expressly excluded. Both Mr. Akpamgbo and Mr. Kalu criticized those opinions which had tended to make the jurisdiction of the High Court conditional on the existence or absence of an area court or a customary court in the area where the land is situate.
For his part, Chief Kola Babalola, learned counsel in a pending appeal in which similar jurisdictional issue has been raised, argued that the jurisdiction of the High Court depended on whether the suit is in respect of ‘granted’ customary right of occupancy or right of occupancy which had not been granted but can be taken as having become vested in terms of section 36(2) of the Act. He buttressed his argument by a comparison of the wording of section 39(1) where the jurisdiction of the High Court was specifically mentioned to include disputes concerning ‘deemed’ statutory rights of occupancy and the omission of such ‘deemed’ customary rights of occupancy in defining the jurisdiction conferred on area and customary courts in section 41. In his submission, where the dispute relates to a granted customary right of occupancy the area court or customary court has exclusive jurisdiction.
The question in Salati v. Shehu (supra) was whether a Muslim Area Court had jurisdiction to try proceedings in respect of land subject of a statutory right of occupancy. This Court (Eso, Nnamani, Uwais, (now CJN), Karibi-Whyte and Kawu, JJ.S.C.) came to a unanimous decision that the Muslim Area Court had no such jurisdiction. Uwais, JSC, (as he then was (who considered the matter in some detail in the context of the Land Tenure Law applicable in the Northern states and the Act, had this to say (at [1986)] 1 NSCC 144) :
‘What emerges therefore is that the jurisdiction now exercisable by Area Courts in land matters is limited to disputes related to such land, the right of occupancy of which is a customary right of occupancy.’
There was no issue in the case as to the power of the High Court to exercise jurisdiction in respect of proceedings concerning a customary right of occupancy. However, Karibi-Whyte, JSC, having dealt with the issue in the case, and after referring to sections 39(1) and 41 of the Act proffered the opinion (at page 150) as follows:
‘There is no ambiguity in the two sections that the exclusive right of occupancy is vested in the High Court of the State, whereas jurisdiction in respect of customary right of occupancy is vested in the Area or Customary Court.’
So far, no one can raise any objection to this statement. But, then, the opinion was further expressed by the learned Justice, that:
‘The exercise of these jurisdictions will seem to me mutually exclusive. There is no doubt therefore that the one cannot exercise the jurisdiction of the other.’
Needlessly, much problem has been engendered by this opinion which was evidently made obiter and is consequently not binding. Although reference was made to the opinion in Sadikwu v. Dalori (supra) in the leading judgment of this court delivered by Wali, JSC, it is clear that he fell short of endorsing the obiter dictum of Karibi-Whyte, JSC.
The question in Sadikwu v. Dalori (supra) was whether the High Court of Borno State had jurisdiction in proceedings in respect of land not designated urban land. This court (Uwais, CJN, Wali, Kutigi, Ogwuegbu, and Mohammed, JJSC) in a unanimous decision upholding the decision of the Court of Appeal held that the High Court had no jurisdiction. We are now urged to depart from that decision. Sadikwu v. Dalori originated from an action commenced in the High Court of Borno State on July 19, 1979, that is, before the commencement, in October, 1979, of the 1979 Constitution.
Where the question arises as to the jurisdiction of the High Court, it is essential to examine the laws defining the jurisdiction of the High Court both at the time the action was instituted and up to the time judgment was given. Authority for the view that so long as a court acquires jurisdiction before delivering judgment, its decision cannot be attacked on the ground of want of jurisdiction, is Adani v. Igwe (1957) NSCC 84. ‘In Sadikwu v. Dalori (supra), the relevant Laws at the time when the action was commenced were the Act, the Land Tenure Law (Cap 41 Laws of Northern Nigeria, 1963) applicable to Borno State, and the High Court Law (Cap 49 Laws of Northern Nigeria). By the time the judgment was given in the High Court, the 1979 Constitution had come into force. This should have raised the question, not pursued on this appeal, whether that Constitution should not have been taken into consideration when the question of the jurisdiction of the High Court came to be considered both in the Court of Appeal and in this court.
Section 41 (1) (a) of the Land Tenure Law provided that:
‘ The High Court shall have exclusive jurisdiction in
(a) proceedings in which the right of the Governor or the Minister to grant a statutory right over any land is in dispute.’
Section 41 (2)(a) of the same Law provided that:
‘A native court of competent jurisdiction shall have jurisdiction in
(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 all parties are subject to the jurisdiction of native courts, subject nevertheless to the provisions of paragraph (b) of subsection (3)…….”
Subsection 3 referred to, provided, in effect, that the High Court shall have jurisdiction in 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 court and when there is no native court of competent jurisdiction available to try the proceedings.
Section 17(1) of the High Court law (Northern Nigeria) provided that:
‘Subject to the provisions of the Land Tenure Law and 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.’
The effect of section 17(1) of the High Court Law (Northern Nigeria) was to curtail, in express terms, prior to the coming into force of the 1979 Constitution, the jurisdiction of the High Court in matters concerning title to land and customary rights of occupancy.
A statement in the leading judgment in Sadikwu v. Dalori (supra) may lead to an erroneous impression that it was held in that case that section 41 of the Act restricted the jurisdiction of the High Court just as section 17(1) of the High Court Law (Northern Nigeria) did. Wali, JSC, said at page 163.
‘In my view S. 17(1) of the High Court Law of Northern Nigeria applicable to Borno State goes to support S. 41 of the Land Use Act, 1978 and S. 41 (2) (a) of the Land Tenure Law.’
I am not persuaded that it suggested by this passage that section 41 of the Act vested exclusive jurisdiction in the Area Court. All that the statement was intended to convey, in the light of what had been discussed in the judgment, was that to define the jurisdiction of the High Court of the State to which the High Court Law referred to applied, the provisions of the three statutes should be read
together. It is to be noted that section 41 of the Act does not by itself deal with the jurisdiction of the High Court.
Should we overrule Sadikwu v. Dalori (supra) as we were invited to do? A previous decision is not to be departed from, or even followed, where the facts or the law applicable in that previous case are distinguishable from those in the later case. Where relevant statute laws have changed since the previous decisions, what is called for is ‘distinguishing’ rather than ‘departure’. The doctrine of stare decisis is based, first and foremost on the relevant likeness between two cases – the previous case and the one before the court. Where there is no relevant likeness between the two, it is an idle exercise to consider whether the previous one should be followed or departed from. In this case, a significant difference between the present case and the Sadikwu case is that the scope of jurisdiction of the High Court of the States had changed since the action in Sadikwu v. Dalori (supra) was instituted. Besides, the Laws applicable for the determination of the jurisdiction of the High Court in Sadikwu are not the same as are applicable in this case.
The submission that Sadikwu v. Dalori was wrongly decided is, in my view, correct if the provisions of the 1979 Constitution should have been taken into consideration in determining the jurisdiction of the High Court in that case. Although the action in Sadikwu v. Dalori was commenced before the promulgation of the 1979 Constitution, judgment of the High Court was not given until after October, 1979 when the Constitution had already come into force. By that date, whatever restriction there may have been on the jurisdiction of the High Court in States to which the Land Tenure Law and the High Court Law of the former Northern Nigeria applied, had been removed by the provisions of section 236(1) of the Constitution. However, that point has not been taken on this appeal. I am content to leave the decision whether or not Sadikwu v. Dalori (supra) should be departed from till such time as a case arises touching on the jurisdiction of the High Court in a state in which the Land Tenure Law and the High Court Law of Northern Nigeria, or similar enactment, were applicable. It is sufficient to say, for the moment and for the purpose of the case in hand, that there is nothing decided in Sadikwu v. Dalori that is authority on which to rely to determine the question which has arisen in this case of the jurisdiction of the High Court of Oyo State.
However, the case of Oyeniran v. Egbetola (supra) is in a different category. In that case, sometime in 1982, or so it would appear, the plaintiffs sued the defendants in the High Court of Oyo State claiming a declaration that they ‘by customary occupation are entitled to the customary right of occupancy’ of a farmland, damages for trespass and injunction. The High Court granted all the reliefs sought. The defendants, for the first time on their appeal to the Court of Appeal questioned the jurisdiction of the High Court to try the action. They contended that by virtue of sections 39 and 41 of the Act, the High Court lacked jurisdiction to try the action. The Court of Appeal rejected the contention, they being of the view that since the word ‘exclusive’ had been omitted in section 41 of the Act it would be wrong for them to supply the missing word and that section 236 of the 1979 Constitution had granted unlimited jurisdiction to the High Court of a State. In the event, they dismissed the appeal. The same question was raised on the further appeal to this court. This court (Wali, Kutigi, Ogwuegbu, Mohammed and Onu JJ.SC.) allowed the appeal and struck out the suit on the ground that the High Court had no jurisdiction to try the proceedings.
It has been argued on this appeal that we should depart from the decision of this court in that case. But, first, let me summarize the reasoning by which this court came to the decision. Mohammed, JSC, who delivered the leading judgment recognized that the view held by Karibi-Whyte [JSC] in Salati v. Shehu (supra) was obiter, but, nevertheless he was prepared to be persuaded by that view. He held that Wali, JSC, had in Sadikwu v. Dalori (supra), interpreted section 41 of the Act as conferring exclusive jurisdiction on the area court and that he was bound by that decision.
However, he seemed to have resorted to construction by implication when he said at page 132 of the law reports:
‘This classification of land tenure which the Land Use Act 1978 brought into the land law of this country and identification of courts to adjudicate in disputes the subject of the respective land tenure is deliberate. It is my view that the legislature by classification of land tenures and assigning jurisdiction to particular set of courts for determination of disputes arising from such land holdings, does not want the courts to exercise concurrent jurisdiction over such matters,’
He drew support for this view from the view expressed by Uwais, JSC (as he then was) in Salati v. Shehu (1986) I NWLR (Pt. 15) 198 where the following statement was made:
‘Now the division of jurisdiction of the courts established in a State in respect of land matters is contained in sections 39, 40 and 41 of the Land Use Act, 1978. The division appears to follow the classification of land into urban areas and non-urban areas.’
Although this statement had tended to suggest mutually exclusive jurisdictions of the High Court on the one part, and the Area and Customary Courts, on the other, it, like the opinion of Karibi-Whyte, JSC, in the same case, was obiter. Nevertheless, the opinion of Mohammed, JSC, stated above is of sufficient importance in the debate as to merit close attention and should not be glossed over.