Josiah Ayodele Adatayo & 2 Ors V Kunle Ademola (2010)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

The Appellants in this appeal were the Plaintiffs at the Federal High Court Lagos where they, by a Writ of Summons and statement of claim, filed their action against the Respondents herein who were the Defendants and claimed against them in paragraph 13 of the statement of claim as follows –

“(a.) A declaration that they are the persons entitled to be issued with certificate of occupancy in respect of the various parcels of land being occupied by them and claimed by the first Defendant at Yakoyo near Ojodu village.

(b.) A declaration that the judgment in suit No. FHC/L/CS/820/95 is null and void as neither the Plaintiffs nor the second and third Defendants were served with Court processes in the suit.

(c.) An injunction restraining the Defendants, their servants, agents privies and otherwise howsoever from interfering with the Plaintiffs possession of the land being occupied by them at Yakoyo near Ojodu village.”

However, before the action came up for hearing, the 1st Respondent who was the 1st Defendant at the trial Court filed a motion on Notice urging the Court to dismiss the action for want of jurisdiction to entertain the same. The 2nd and 3rd Respondents, were Respondents to the motion which was heard by the trial Court. In its Ruling delivered on 11th July, 2001, the trial Court held that it has jurisdiction to entertain the Plaintiffs’ action by virtue of the provisions of Section 251(1)(r) of the 1999 Constitution. The 1st Respondent who was not happy with the Ruling of the trial Court decided to appeal against it to the Court of Appeal Lagos Division where the only issue raised for the determination of the appeal was –

‘Whether by virtue of the provisions of Section 251(1)(r) of the 1999 Constitution, the Federal High Court has jurisdiction to entertain an action for a declaration of title to the land.’

After hearing the appeal, the Court of Appeal in resolving the single issue of jurisdiction that was placed before it for determination in its judgment delivered on 30th June, 2004 came to the conclusion that the provisions of Section 251(1)(r) of the 1999 Constitution by virtue of which the trial Court held that it has the required jurisdiction to entertain the Plaintiffs/Appellants’ action, does not confer such jurisdiction on the trial Court and consequently struck-out the action in allowing the appeal. The Plaintiffs who were not happy with that decision are now on appeal to this Court.

In the brief of argument filed on behalf of the Plaintiffs/Appellants by their learned Senior Counsel to challenge the decision of the Court of Appeal that the trial Federal High Court has no jurisdiction to entertain the action of the Appellants for declaration of title to various plots of land, the following five issues were identified for the determination of the appeal –

“(1.) Whether the Federal High Court lacks jurisdiction to entertain land matters in all circumstances.

(2.) Whether it is the reliefs endorsed on the statement of claim that determines the jurisdiction of the Court.

(3.) Whether or not the Appellants’ claim is one properly within the jurisdiction of the Federal High Court either by Section (sic) (1)(r) and (s) of the 1999 Constitution or even by the nature of the issue raised in the statement of claim.

(4.) Whether the Appellants were obliged to file a notice of intention to affirm the Ruling of Abutu J. on other grounds or to obtain leave to appeal before raising the issue.

(5.) Whether the learned Justices of the Court of Appeal were right in striking out the suit in view of Section 22 of the Federal High Court Act.”

In the Respondent’s brief of argument filed for the pt Respondent, the following three issues were formulated –

“(1.) Whether the Federal High Court lacks jurisdiction to entertain land matters in all circumstances.

(2.) Whether it is the reliefs endorsed on the statement of claim that determines the jurisdiction of the Court.

(3.) Whether or not the Appellants’ claim is one properly within the jurisdiction of the Federal High Court either by Section (sic) (1)(r) and (s) of the 1999 Constitution or even by the nature of the issue raised in the statement of claim.”

The 2nd and 3rd Respondents being the Federal Ministry of Works and Housing and the Attorney General of Federation respectively who were at the center of the complaint of the Appellants on the issue of jurisdiction and who were duly served with the processes of this appeal, neither filed their Respondents’ brief of argument nor appeared or represented at the hearing of the appeal. Taking into consideration that this appeal originated from the Ruling of the trial Court on the preliminary objection of its jurisdiction to entertain the Plaintiffs/Appellants action the appeal from which to the Court of Appeal also raised a single issue of whether or not the trial Court has jurisdiction to entertain the action by virtue of the provisions of Section 251(1)(r) of the 1999 Constitution, as many as five issues and three issues raised by the Appellants and the 1st Respondents in their respective Appellants’ brief and Respondents’ brief of argument, are clearly out of tune with the real subject of the appeal on the issue of jurisdiction. Since the substantive action of the Plaintiffs/Appellants is yet to be heard and determined on the merit by the trial Court, the only real issue for determination in this appeal is whether or not the Court below was right in its decision now on appeal that the trial court has no jurisdiction under Section 251(1)(r) of the 1999 Constitution to entertain the Plaintiffs/Appellants’ action claiming declaration of title to plots or parcels of land.

The circumstances surrounding the facts that gave rise to the dispute between the parties started in 1992 when the Federal Government of Nigeria through the Federal Ministry of Works and Housing compulsorily acquired a large parcel of land at Ojodu in Lagos/Ogun States- Part of the land was utilized for the Lagos – Ibadan express way while the remaining part was allocated to private individuals for residential purposes. The 1st Respondent who claimed interest in part of the land, filed an action at the Federal High Court for declaration of title which was granted by the Court in its judgment delivered on 26th September, 2000. Like in the present appeal, the 2nd and 3rd Respondents who were Defendants in that action did not contest the claim against them.

Armed with the judgment in his favour, the 1st Respondent pasted notices all over the land in dispute and threatened to evict the Plaintiffs/Appellants from their various plots of land. The Plaintiffs/Appellants therefore, went to the same Federal High Court and filed their action against the Defendants/Respondents for declaration of title to their respective plots of land occupied by them and the setting aside of the judgment of the same Federal High Court in favour of the 1st Respondent and injunction restraining the 1st Respondent from interfering with their possession of the land.

However, before the matter proceeded to hearing, the 1st Respondent’s preliminary objection to the jurisdiction of the trial Court to entertain the action was heard and dismissed by the trial Court but his appeal to the Court of Appeal against the Ruling of the trial Court was successful when the Court of Appeal allowed the appeal and struck out the Plaintiffs/Appellants’ action on the ground that the trial Court lacks jurisdiction to hear and determine the claims.

On the only issue of jurisdiction which calls for determination in this appeal, learned senior Counsel of the Appellants has submitted that the trial Court by virtue of Section 251(1)(r) and (s) of the 1999 Constitution was clearly conferred with exclusive jurisdiction to hear and determine the Plaintiffs/ Appellants action since the 2nd and 3rd Respondents being the Federal Government of Nigeria and its agency the Federal Ministry of Works and Housing, were Defendants in the action. Learned Counsel stressed that the wording of sub-section (1) of Section 251 of the 1999 Constitution which said –

“Notwithstanding anything to the contrary contained in this Constitution.”

are quite clear and unambiguous that in any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies, the Federal High Court has exclusive jurisdiction to entertain the action. Learned Senior Counsel relied heavily on the decision of this Court in NEPA v. Adegbero (2002) 18 N.W.L.R. (Pt. 798) 79, which he argued was not properly considered for appropriate guidance by the Court below. Other cases cited in support of this stand of the Appellants include Texaco Panama Inc. v. Shell Petroleum Development Company of Nigeria Ltd. (2002) 5 N.W.L.R. (pt. 759) 209, Adeyemi v. Opeyori (1976) 9 – 10 S.C. 31 at 51 and Nafiu Rabiu v. State (1981) N.C.L.R. 293. Learned senior Counsel concluded on this issue by observing that it is not only the reliefs claimed by the Plaintiff that determines the jurisdiction of Court but that the statement of claim including the reliefs claimed therein are also relevant and urged the Court to give the provisions of Section 251(1)(r) of the 1999 Constitution broad interpretation to accommodate the jurisdiction of the trial Court to entertain the Appellants’ action and allow this appeal. Counsel also made a point that the Court below having held that the trial Court has no jurisdiction in the matter, was in error in striking out the Plaintiffs/Appellants suit rather than transferring the case to the appropriate Court having jurisdiction to hear it under Section 22 of the Federal High Court Act.

Although the 1st Respondent’s brief of argument dwelt extensively on issue estoppel which does not arise from the Ruling of the trial Court that gave rise to this appeal, the issue of jurisdiction was adequately covered in the concluding part of the arguments where it is submitted that the Federal High Court lacks jurisdiction to entertain actions in land matters in all circumstances. Learned Counsel relying on the cases of Aso Motel Kaduna Ltd. V. Deyemo (2006) 7 N.W.L.R. (Pt. 978) 87 at 113, Omosowan v. Chiedozie (1998) 9 N.W.L.R. (Pt. 566) 477 at 484 and Jack v. Unam (2004) 5 N.W.L.R. (Pt. 865) 208 at 229, pointed out that there is no blanket provision in Section 251(1)(a) – (s) of the Constitution which confers exclusive jurisdiction on the Federal High Court in actions against the Federal Government or any of the agencies regardless of the subject matter of the action. Agreeing with the Court below, learned Counsel emphasized that the Land Use Act which is entrenched in the Constitution has given the State High Courts unlimited jurisdiction over land matters within their States and as such Section 251 of the 1999 Constitution will not operate to divest the State High Courts of jurisdiction and therefore urged this Court to dismiss the appeal.

As I have earlier stated in this judgment, taking into consideration that the present appeal arose from the preliminary objection raised to the jurisdiction of the trial Court which the Court below decided that the trial Court lacks jurisdiction to hear and determine the Plaintiffs/Appellants’ action, the only issue for determination in this appeal is whether the Court below was right in holding that the trial Court has no jurisdiction under Section 251(1)(r) of the 1999 Constitution to hear and determine the Plaintiffs/Appellants’ claims for declaration of title to plots or parcel of land. The law is indeed well settled that in cases initiated by Writ of Summons and statement of claim such as the present case, the jurisdiction of the Court is determined by the Plaintiffs statement of claim. See Adeyemi v. Opeyori (1976) 9 – 10 S.C. 31 at 51, Tukur v. Government of Gongola State (1989) 4 N.W.L.R. (Pt. 117) 517 and Orthopaedic Hospital Management Board v. Garba (2002) 14 N.W.L.R. (Pt.788) 538 at 563. In other words although it is necessary sometimes to hear some sought of evidence first in assistance for the purpose of the determination of or the resolution of the issue of jurisdiction of Court, where pleadings are filed in a suit as in the instant case, the issue of jurisdiction ought to be determined on the Plaintiffs’ statement of claim without any recourse to the Defendant’s statement of defence. See Izenkwe v. Nnadozie (1953) 14 W.A.C.A. 361 AND Attorney General Kwara State v. Olawale (1993) 1 N.W.L.R. (Pt. 272) 645.

The fundamental nature of jurisdiction is that it does not exist in vacuum because all Courts of law derive their power, authority and therefore jurisdiction either under the Constitution or under specific statutes. See Lekwot v. Judicial Tribunal (1997) 8 N.W.L.R. Pt. 515) 22. In this respect, no Court can assume jurisdiction in the absence of having been constitutionally or statutorily empowered to do so.

The law is also well settled that the question of jurisdiction strikes at the root of any cause or matter and consequently raises the issue of competence of the Court to adjudicate in the particular proceedings. Therefore any defect in competence is fatal as such proceedings become null and void no matter how well conducted and decided the proceedings have been. Madukolu & Ors. v. Nkemdilim & Ors. (1962) 2 S.C.N.L.R. 341 and Skenconsult (Nigeria) Ltd. v. Ukey (1981) 1 S.C. 6.

In the present case it is not at all in dispute that from the Writ of Summons and the statement of claim filed by the Plaintiffs/Appellants, their claim is for declaration of title to various parcels of land, possession of the same parcels of land and injunction restraining the Defendants/Respondents from interfering with the Plaintiffs/Appellants’ possession of the said parcels of land being claimed. Thus, guided by the position of the law in the determination of the issue of jurisdiction, the Plaintiffs/Appellants’ claims at the trial Court as earlier quoted in full in this judgment, shall be the focus of attention in guiding me to resolve this issue in determining whether or not the Court below was right in its decision that the trial Federal High Court has no jurisdiction to entertain the plaintiffs/ Appellants’ action. The law is trite that the jurisdiction of any Court is derived from the statute creating the Court or from any other statute specifically conferring such jurisdiction on the Court. The statutes in contention in the present case are of course the provisions of Section 251(1)(r) of the 1999 Constitution and the provisions of Sections 39, 41 and 42 of the Land Use Act 1978 also entrenched in the provisions of the 1979 and 1999 Constitution respectively in Sections 274(5) and 315(5) thereof. Section 251(1)(r) of the 1999 Constitution reads –

“251(1) Notwithstanding anything to the contrary contained in the Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –

(a.) xxxxxxxxxxxxxxxxx

(r.) any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies”

On the face of these provisions of the Constitution, it appears that impression has been created that the Federal High Court has exclusive original jurisdiction to the exclusion of all other Courts in Nigeria in any civil cause or proceedings in which the Federal Government or any of its agencies is a party. However, a very close, careful and proper interpretation or construction of the provisions, would show that this is not necessarily the true position. This is because, in my view, it is the facts and circumstances of each case that will determine whether or not it is a case within or outside the exclusive jurisdiction of the Federal High Court.

The principles guiding the interpretation of Constitutional provisions as those quoted above are well settled. Such provisions ought to be interpreted liberally. In other words it is not the duty of the Court to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends. See Mohammed v. Olawunmi (1990) 2 N.W.L.R. (Pt. 133) 458, Rabiu v. State (1980) 2 N.C.L.R. 293; Acqua Ltd. v. Ondo State Sports Council (1990) 4 N.W.L.R. (Pt. 91) 622; and Ishola v. Ajiboye (1994) 1 N.W.L.R. (Pt. 352) 506.

Coming back to the provisions of Section 251(1)(r) of the 1999 Constitution, this Court had given guidance on proper approach to the interpretation of Section 230 of the 1979 Constitution as amended by Decree No. 107 of 1993 which is in pari-materia with Section 251 of the 1999 Constitution. The need to examine the parties in the litigation as well as the subject matter of the litigation was strongly advised for close scrutiny in resolving the issue. In construing the parties, the Court will have no difficulty in identifying the Federal Government but it may have difficulty in identifying an agency of the Federal Government in certain matters. See NEPA v. Edegbero (2002) 18 N.W.L.R. (Pt. 789) 79 at 100. Happily in the instant case, there is no dispute at all that the Federal Government and the Federal Ministry of Works and Housing are parties as Defendants at the trial Court and as Respondents in the Court of Appeal and in this Court. What remains to be considered therefore is the subject matter of the Plaintiffs/Appellants claims to see whether or not the claims can be accommodated under Section 251(1)(r) of the 1999 Constitution.

While the trial Court found that it has jurisdiction under the provisions of the Constitution, the Court below was of a different view. My task in resolving the issue is to find which of the Courts below was right. What the provision in question provide is that the Federal High Court shall have exclusive jurisdiction in civil causes and matters in –

“(r) any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”

Applying this provision to the claims of the Plaintiffs/Appellants in the instant case, although the claims indeed include a declaration and injunction, there is nothing to show that the declaration and injunction being claimed relate or affect the validity of any executive or administrative action or decision of the Federal Government or any of its agencies. It must be emphasized that the claims of the Plaintiffs/ Appellants is for declaration of title to land and injunction to protect their possession of the land. The executive and administrative action or decision of the Federal Government and its agency the Ministry of Works and Housing to compulsorily acquire the parcels of land for public purposes namely, the construction of the Lagos – Ibadan Express Way is not at all the subject of the action. Thus, as the executive action of the Federal Government in compulsorily acquiring the land in dispute is not being challenged by the Plaintiffs/Appellants in their instant action, there is no opening whatsoever for the Federal High Court to come into the matter in exercise of its original jurisdiction under Section 251(1)(r) of the 1999 Constitution. Close examination of the entire provisions of Section 251 of the 1999 Constitution prescribing the jurisdiction of the Federal High Court to the exclusion of all other Courts, there is nothing therein specifically conferring jurisdiction in that Court in causes or matters concerning land disputes. Although the Section also indicated that the National Assembly may confer additional jurisdiction to the Court, there is no indication that such Act of the National Assembly had been promulgated conferring additional jurisdiction to the Court to entertain causes and matters on land disputes. If any such additional jurisdiction had been given, the most relevant statute to examine in search for it in my view, is the Land Use Act because jurisdiction of the Federal High Court to entertain land matters cannot be inferred by implication in the construction of Section 251 of the 1999 Constitution the meaning of which is quite clear and plain as no causes or matters in land dispute are mentioned therein.

Since the provisions of Section 251(1)(r) of the 1999 Constitution are not helpful in tracing any jurisdiction in land matters to the Federal High Court as jurisdiction of Court is derived from statutes conferring the jurisdiction, I decided to examine the provisions of the Land Use Act 1978 which was promulgated specially and specifically to deal with the control and management of land in Nigeria. The Courts conferred with jurisdiction to entertain disputes between Nigerians in exercising their right to acquire and use land under the Act are clearly specified therein. The relevant Sections in this respect are Sections 39, 41 and 42 respectively which state –

“JURISDICTION OF HIGH COURTS AND OTHER COURTS

Jurisdiction of High Courts

39(1) The High Court shall have exclusive 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 includes proceedings for a declaration of title to a statutory right of occupancy;

(b) proceedings to determine any question as to the persons entitled to compensation payable for improvements on land under the 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 modifications as would enable effect to be given to the provisions of this Section.

xxxxxxxxxxxxxxxxxxxxxxxx

41. Jurisdiction of Area Courts or Customary Courts etc

An Area Court or Customary Court or other Court of Equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings in respect of II customary right of occupancy granted by a Local Government under this Act; and for the purposes of this paragraph “proceedings” includes 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.

42.(1)Proceedings for the recovery of rent payable in respect of any certificate of occupancy may be taken before a Magistrate’s Court of competent jurisdiction by and in the name of the Chief Land Officer or by and in the name of any other officer appointed by the Governor in that behalf.

(2) Proceedings for the recovery of rent payable in respect of any customary right of occupancy may be taken by and in the name of the Local Government concerned in the Area Court or Customary Court of equivalent jurisdiction.”

It is quite clear from the provisions of the above Sections of the Land Use Act with specific powers and jurisdiction in respect of land matters specified therein conferred on State High Court, Area Court, Customary Court and Magistrate Court that the Federal High Court is not one of the Courts conferred with jurisdiction to entertain any dispute in land matters. Infact the purpose which Sections 39, 41 and 42 of the Land Use Act are designed to serve are very clear. While Section 39 excludes Area Courts and Customary Courts from exercising jurisdiction in respect of land the subject of statutory right of occupancy, Section 41 redefines the jurisdiction of the Courts referred to therein so as to ensure that Courts, such as the Customary Courts in Southern States of this Country which had previously been exercising concurrent jurisdiction with the High Court without distinction by classification of land, have their jurisdiction limited as stated therein. In other words while the State High Court has exclusive jurisdiction over lands in Urban Areas by virtue of Section 39(1) of the Land Use Act, that Court shares jurisdiction with only the Area Courts and Customary Courts or other Courts of equivalent jurisdiction by virtue of both the jurisdiction of the State High Court under Section 272 of the 1999 Constitution and the jurisdiction conferred on the Area Courts and Customary Courts by virtue of Section 41 of the Act. As there is nothing in these Sections 39, 41 and 42 of the Land Use Act that conferred any jurisdiction on the Federal High Court to entertain land causes or matters, I entirely agree with the Court below that the Federal High Court has no jurisdiction to hear and determine any dispute on declaration of title to land.

With regard to the complaint of the Appellants that their suit ought to have been transferred to the appropriate Court having jurisdiction to entertain it under S.22 of the Federal High Court Act rather than striking out the suit, the fact that the parcels or plots of land being claimed are located within Lagos and Ogun States, it was not possible to have made any definite order to the appropriate State whose Courts have jurisdiction to entertain the suit. The order striking out the suit since the trial Court has no jurisdiction to entertain it, is therefore quite in order.

For the above reasons given, I am completely with the Court below in its judgment now on appeal that the Federal High Court indeed has no jurisdiction to entertain the Plaintiffs/Appellants claims’ for declaration of title, injunction and possession of various parcels of land in their action against the Defendants/Respondents. I therefore find no merit at all in this appeal. The appeal is accordingly hereby dismissed.

There shall be N50,000.00 costs to the 1st Respondent alone against the Appellants.

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SC.229/2004