Emmanuel Onyema & Ors. V. Uwaeze Oputa & Anor. (1987)
LawGlobal-Hub Lead Judgment Report
This appeal has raised a very interesting issue of law as to the appropriate court where the action should be heard. But let us state the facts first, and, indeed, they are not in controversy.
The action of the Plaintiffs for damages for trespass and injunction was filed in the High Court of Mid-Western State in the Ughelli Judicial Division. It was Suit UHC/45/73, and dated 22nd October 1973.
Hearing commenced before Aghoghovbia J. in the Ughelli High Court, and continued till 15th January 1976. It was then adjourned to 2nd March, but before that date, Aghoghovbia J. had been retired from the Bench, and so, the case had to be commenced de novo.
However, in that year, the Kwale Judicial Division was created in the same Mid-Western State and so the case was transferred to Kwale High Court. It was re-numbered HVK/11/76. That was not all that happened in 1976. By the States (Creation and Transitional Provisions) Act 1976, Nigeria became a nineteen state structured country, and the area known as Ndoni, of which Isukwa, in which the land in dispute was situate, was a unit, was excised from the Mid-Western State, and it was included in a newly created State, the Rivers State. What was left of the Mid-Western State became Bendel State. Following the creation of States, the States (Creation and Transitional Provisions) Act 1977 was passed. The commencement date of the Act was 3rd February 1976.
On 18th June 1980, the case which was up till that time in the Kwale High Court, was transferred by the Chief Judge of Bendel State from the Kwale High Court to the High Court of Bendel State sitting in Asaba. That was after the 1979 Constitution came into force.
I have so far, stated, supra, the journey of the case from Ughelli High Court through Kwale High Court to the Asaba High Court. I have also stated the constitutional changes affecting the country during that period and referred to –
(1) The 1979 Constitution.
(2) The States (Creation and Transitional Provisions) Act 1976.
(3) The States (Creation and Transitional Provisions) Act 1977.
I have also stated that the land in dispute was situate in Isukwa. Isukwa was part of Ndoni area and it was in the Aboh Division of the Mid-Western State. Aboh Division was, since 1955 when the Mid-Western State was part of Western Region, within the Ughelli Judicial Division, see W.R.N.L. 15 No.148 of 1955.
The States (Creation and Transitional Provisions) Act, 1967, in creating the twelve States, specified in the Schedule to the Act-
“(i) Mid-Western The present Mid-Western Region”
Thus, what constituted the Mid-Western Region, before 27th May 1967, became Mid-Western State. By the States (Creation and Transitional Provisions) Amendment Act, 1967, No. 19, the schedule specified the Divisions in each of the twelve States and for Mid-Western State is contained the following list:
“Aboh. Afenmai, Akoko Edo, Asaba, Benin, Ishan Isoko, Urhobo, Warri and Western Ijaw Divisions”
Isukwa, where the land in dispute is situate, is in Ndoni Area and that area was in Aboh Division.
In 1976, when the nineteen states structure was created by the States (Creation and Transitional Provisions) Act 1976 No. 12, section 3 of the Constitution of the Federation 1963 No. 20 was amended accordingly. The States created included Bendel and Rivers States. The Schedule to the Act sets out the following in regard to those two States-
“Bendel ……… Akoko Edo, Owan, Etsako, Ishan, Benin East, Benin, Ika, Asaba, Warri, Western Urhobo, Aboh less Ndoni area, Isoko, Western Ijaw,
Rivers……… Ogba, Egbema, Yenagoa, Ahoada, Ndoni area, Ikwerae, Etche, Kulama, Oporoma, Ogbia, Abina/Oduel Obio, Tai Eleme, Port Harcourt, Khana, Bori, Ikrika, Bonny plus the rest of Opobo Division not included in Cross River State, Kalabari and Brass,”
And thus, Ndoni area, which contains Isukwa, where the land in dispute is situate, and which was in Aboh Division of the Mid-Western State, has become, on creation of Bendel State and Rivers State part of the Rivers State. The creation of states, no doubt realized that there would be some confusion in regard to the rights of the people in so far as forum for litigation for land is concerned and the States (Creation and Transitional Provisions) Act 1977 No. 17 was passed. Section 4 thereof provides for Transitional provisions in relation to proceedings pending other than proceedings pending for or against a former State. Section 4 provides-
“4(i) All actions and other proceedings which on the commencement of the principal Decree were pending in any court, not being actions or proceedings in which the Government of a State was a party, shall on the commencement of that Decree for all purposes be deemed to have been pending in the appropriate court of the State, created under the principal Decree, the territory of which includes the place where the action or other proceedings were originally filed.”
This is the background to the issues which arose in this appeal. How it arose One has to go back to the High Court judgment. The issue itself is one of jurisdiction and it was first raised in that Court as could be seen from the judgment of the learned trial Judge, J,O. Akpovi J. in the Asaba High Court, where the case was finally determined. I have traced earlier in this judgment the journey of the case from Ughelli High Court to the Asaba High Court. The learned trial Judge said in his judgment on the issue
“At the first hearing of the case in this Court Mr. Emezie, learned counsel for the defendants raised the point of jurisdiction of this court. He said that in 1971 some of the defendants sued the plaintiffs in Onitsha High Court in respect of the subject matter now here. The plaintiffs appeared in court and case is still pending at Onitsha. Then in 1973 the plaintiffs brought this action in the High Court at Ughelli in respect of the same matter. He had raised the objection as to jurisdiction in that court but was over ruled. After the case had arrived in Kwale High Court, there followed boundary adjustments, between states in the country and by that exercise the land in dispute is now part of the Rivers State.
He referred to Order 6 Rule 2 of the Civil Procedure Rules of Bendel State and asked that the case be transferred to Rivers State where the defendants now are. He also referred to states (Creation and Transitional Provisions) Act No.17 of 1977. But at the address stage Chief Ume who with Mr. Emezie submitted a joint address agreed that there was no question of inter state dispute in this case and so the question of transfer of the case to Rivers State should not arise and asked that the case be decided here.
Mr. Egonu had opposed the objection raised by Mr. Emezie and the request for the transfer of the case to Rivers State. He submitted that this court has no power to transfer the case from this State to another State, as its power under section 35 of the High Court Law to transfer a case to another Judicial Division within the State just as this case was transferred from the Kwale High Court to Asaba High Court, on their application.
Under sub-section 2 of section 35 of the High Court Law. He added that the only provision for a case to be transferred inter State is to be found in the States (Creation and Transitional Provision) Act 1977 No.17, and in such a case a State Government must be a party.
I did not make a ruling on the point at the time because I thought largely that I should hear the whole evidence before doing so. I will now rule on it. By sub-section 1 of Section 35 of the High Court Law Cap. 65 this court may transfer any matter before it to another Judge in the same or in other Judicial Division of the State. By Order 6 Rule 2 all suits relating to land are commenced and determined in the Judicial Division in which the land is situate. After the creation of new states in this country in February, 1976 the States (Creation and Transitional Provisions) Act No.17 of 1977 was enacted to provide for the devolution of public property as between successor states and to make provision for proper venues and procedures to be followed with respect to pending cases.
Land matters that involve two States are provided for in section 3 for their transfer inter State. Section 4 takes care of pending land matters at the date the Act came into effect on 3rd February, 1976, where a State Government is not a party, the case is tried and concluded in the States where the original action was filed. The Mid-Western State was the principal State in this area before new States were created in 1976.The area where this land is situate was included in Aboh Division in the first Schedule to the Development Administration Law 1974 (No.26 of 1974) of the then Mid-Western State of Nigeria.
This case was filed in 1973 in the Mid-Western State of Nigeria now called Bendel State. Because of the boundary adjustment that followed the creation of new States in 1976, the area where this land is situate was excised from the Mid- Western State and added to the Rivers State. The pendency of this action in this court is therefore saved by sub-section 1 of Section 4 of the Act of 1977. This case does not form a subject matter of transfer from this State to Rivers State as it is not a matter in which a State Government is a party under Section 3 of the Act. The parties to this case are individuals and so the case is properly pending here in this court. I will therefore hear and determine it. The objection as to jurisdiction is over ruled.”
And so, the learned trial Judge, having decided that he, as a Court in Bendel State, had jurisdiction, the appeal on jurisdiction was very prominent in the Court of Appeal, and, as Abai Ikwechegh J.C.A. delivering the judgment of the Court of Appeal, put it, the issue of jurisdiction was the foremost in the arguments of the learned Senior Advocate for the Appellants. In the Court, Mr. Umeadi S.A.N. for the Appellants, argued strenuously, after agreeing that the case was a pending case at the time it was heard in Asaba, that Act No.17 of 1977(referred to already supra) the States (Creation and Transitional Provisions) Act, No. 17 of 1977, did not save the jurisdiction of the Court in Bendel State to hear the case. The learned Justice of the Court of Appeal, having referred to section 4(1) of the Act (already copied out supra) said –
“The Principal Decree under reference is the States (Creation and Transitional Provisions) Decree 1976 which came into force on 3rd February, 1976. This Decree created Bendel State which had Aboh less Ndoni Area as part of her. Bendel State was formerly called Mid-Western State. The case which was therefore pending in the High Court at Asaba in 1981 when it was started hearing was a case which though filed in the Mid-Western State in 1973 was pending in Bendel State in 1977 when Act No.17 of 1977 was promulgated. It was therefore covered by the specific Provisions of Section 4(1) of States (Creation and Transitional Provisions) Act 1977. This is the stand of Mr. Egonu, S.A.N., learned counsel for the respondents on this question of jurisdiction. This is the correct view, and the decision of the trial Judge that he had jurisdiction is valid.”
In other words, all the learned Justice of the Court of Appeal did was to interpret the provision of s.4(1) of the Act No.17 of 1977. The question is whether his interpretation of the provision is right or wrong having regard to Constitutional provisions which he never considered. And that is what this Court will proceed to settle.
We have the assistance of two excellent Briefs in this matter. Chief Williams S.A.N. adopted the brief filed by Mr. Umeadi S.A.N. and thereafter gave us the benefit of oral submissions. As attractive as Mr. Umeadi’s Brief is, and tempting with regard to an incursion into the realm of Conflict of Laws, I think the temptation should be resisted. It seems to me that the whole determination rests on interpretation of Statutes and the Constitutional provisions. Chief Williams, S.A.N., who argued the case, would seem to accept this in his oral submissions to us. For he said-
“The only question is whether the Transitional Provisions were intended to deem the action filed in 1973 to be pending in the appropriate Court of Rivers State or to continue to be pending in the Court of Bendel State.”
Learned counsel then went on and said that in so far as the Bendel State is concerned, there is no appropriate Court in that State to try the case because the land is in Rivers State. It is only in Rivers State that an appropriate Court can be found. Chief Williams further said-
“I agree with the Court of Appeal when they said that the answer is to be found in section 4 of the States (Creation and Transitional Provisions) Act 1977 No. 17.”
Counsel then tried to give an interpretation to that provision with a conclusion that the appropriate Court must be related “to the State,”; and the word “which” State must relate to new State, that is, Rivers State. Mr. Egonu S.A.N., also dwelt on the interpretation to be placed on section 4(1) of the Act. He asked the question – which of the new States And he answered. The action was originally filed in the High Court of Bendel State, within which, Ughelli is.
When asked by the Court whether section 275(1) of the 1979 Constitution resolved the conflict between S.4(1) of the Act No. 17 of 1977 and sections 234 and 236 of the Constitution, learned Senior Advocate answered that there was no conflict between the Act of 1977 No. 17 section 4(1), and sections 234 and 236 of the Constitution. He added that the State High Court which was set up by sections 234 and 236 of the 1976 Constitution has, as one of its functions, the provision contained in section 4(1) of the 1977 Act No. 17. This further has been saved by section 275 of the 1979 Constitution. The appropriate Court, learned Senior Advocate concluded, must be the High Court of Bendel State.
I am clearly of the view that the issue herein must be resolved by interpretation of the Statutes involved. I also hold that section 4 of the Act of 1977 No.17 must be considered, not in isolation, but, together with constitutional provisions. It is in this regard I also believe that one must examine the constitutional provisions.
The area which is the subject of investigation is not only Ndoni where the land is situate, and which is now in the Rivers State, but also the area where the action was filed. The question that must be asked then is what is the position of section 4 of the 1977 (No. 17) Act on this area Ndoni I will first analyse the provision of the section, alone, without the trappings of the Constitution. I have already set out the provision.
- “All actions and other proceedings which on the commencement of the principal Decree, (that is, the States (Creation and Transitional Provisions) Decree 1976 on 3rd February 1976”
These must include all actions of any form whatsoever and must be pending by 3rd February 1976. It is agreed by all sides that this action was pending in the Asaba High Court on 3rd February 1976.
- “not being actions or proceedings in which the government of a State was a party”
This action falls within the contemplation of this section as it is an action between parties other than the government of a State.
- “shall on the commencement of that Decree” that is 3rd February 1976.
- “for all purposes”
- “be deemed to have been pending in the appropriate court of the State created under the principal Decree”
that is a State created by Decree No.12 of 1976 and in this case, both Bendel State and Rivers State were created under that Decree.
- “the territory of which includes the place where the action or other proceedings were originally filed”
This is the problem: The action was originally filed in the Ughelli High Court. The territory which includes Ughelli is in Bendel State, a state created by Decree No.12 of 1976.
In other words, by 3rd February 1976, this action would be deemed to be pending in the appropriate Court in Bendel State. But that is not the end of the matter, for though the action was filed in Ughelli, the land itself is situate in Ndoni which by the 3rd February 1976, the commencement date of the States (Creation and Transitional Provisions) Decree 1976, had been excised from the Mid-West for the purpose of the creation of Bendel State and joined with Rivers for the purpose of the creation of Rivers State, during the creation of the nineteen States structure.
By section 3 of the 1979 Constitution, the Constitution created 19 States on the same lines as the States created by Decree No. 12 of 1976. The land in dispute remained in Rivers State after the promulgation of the Constitution. By section 6(2) of that Constitution, that is the 1979 Constitution.
“The judicial powers of a State shall be vested in the courts to which this section (section 6 sic) relates, being courts established, subject as provided by this Constitution, for a State.”
To my mind, the position is this – section 4(1) of Decree No.17 of 1977 Act saved these pending proceedings and deemed those to be pending in the appropriate Court in Bendel State. This is of course transitional. By virtue of sections 3 and 6 of the 1979 Constitution, territorial Jurisdiction was given to the High Courts of each State; in this case, we are concerned only with Bendel State and Rivers State. As the land in dispute is situate in Rivers State, as from the 1st October 1979, the territorial jurisdiction of the Rivers State High Court covers the case which during transition was deemed to be pending in the Bendel State. I think, this even accords with a common sense interpretation of both the transitional provision (section 4 of Decree 17 of 1977) and the Constitution which later pervaded the entire situation. For, by the coming into force of the 1979 Constitution, section 4(1) of the 1977 Decree No.17 became inconsistent with the Constitution and it must cease to have effect. In any event the provision therein was transitional; that is effective until there was a constitutional provision.
Section 234 of the same Constitution established a High Court of each State of the Federation. Section 236 gave that High Court jurisdiction. It provides-
“236(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”
And so by the provision, the High Court of Rivers State has unlimited jurisdiction to hear and determine this civil proceedings, the land that gave rise to the legal right, power, duty, liability, privilege, interest obligation or claim of the parties thereto, being within the Rivers State. If it is otherwise, that is, if a High Court of Bendel has determined the issue, the only manner by which that judgment could be enforced is in following the provision of sections 104 and 105 of the Sheriffs and Civil Process Act (Cap. 189) Laws of the Federation which provide for registration of judgments and proceeding in a State where execution is to take place but specifically provided is the High Court Civil procedure Rules. Order 6 Rule 2 of the Bendel High Court Civil Procedure Rules provides-
“All suits relating to land, or any mortgage or charge thereon, or any other interest therein, or for any injuries thereto, and also all actions relating to personal property distrained or seized for any clause, shall be commenced and determined in the Judicial Division in which the land is situated, or the distress or seizure took place.”
This provision is also in the Rivers State High Court Civil Procedure Rules. In other words if all suits relating to land etc. have to he commenced in the Judicial Division in which the land is situated the provision of sections 104 and 105 of the Sherrifs and Civil Process Act could not apply to save this case.
It may probably be argued that the Constitution, coming into force, would give jurisdiction – both legal power and territorial jurisdiction to each State High Court, only in respect of matters filed on or after 1st October 1979. If such argument is advanced, I think, with utmost respect, it must be fallacious, for the simple reason that the Constitution did not delimit the jurisdictional powers it has given to the Courts by sections 6, 234, 236 and 239. Further, it was a merely transitional provision that s.4 of Decree No.17 of 1977 created, and it terminated with the coming into effect the all pervading provision of the Country’s fountain of law – the Constitution. That law, section 4 of Decree No.17 of 1977 has become spent by 1st October 1979. In any event, the transition must be in regard to matters filed before the coming into effect of the Constitution but still pending on its coming into effect. As regards section 6 of the Interpretation Act 1964, this deal with repealed enactments not with transitional provisions like No.4 of 1977which became spent as a result of the promulgation of the Constitution.
It may also be argued that s.275 of the 1979 Constitution saved existing offices, courts and authorities. But as this Court said in Obayuwana v. His Excellency, Prof Ambrose Alli Governor of Bendel State and Anor., it is the function of the Court that was saved. Section 275 of the Constitution has nothing to do with the jurisdiction of the Court.
For these reasons, I will allow the appeal and it is hereby allowed. The judgments and orders of the High Court Asaba and the Court of Appeal Benin Division are hereby struck out. The claim of the Plaintiff is hereby struck out.
The Plaintiff is at liberty to commence the suit in the appropriate Court in Rivers State that is in the High Court Division having jurisdiction in that State in regard to the situs of the land in dispute. The Appellants shall have the Costs of this appeal assessed at N300, Costs in the Court of Appeal assessed at N200.00 and Costs in the High Court, assessed at N200.00.