Sunday Gbagbarigha V. Mr. Adikumo Toruemi & Anor (2012)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C. 

The appellant, as plaintiff sued the respondents as defendants in a Kaima Customary Court Bayelsa State for-

1. An order of this honourable court asking the defendants to refund the sum of N800.00 (eight hundred naira) only being the amount of money paid to the defendants for the sale of a piece or portion of land situate at Ogienama compound to the plaintiff along with two bottles of native gin, a packet of cigarette and some bottles of mineral amounting to the sum of N50.00 (fifty naira).
2. An order of this honourable court to ask the defendants to refund the sum of N10,200 (Ten thousand, two hundred naira) being expenses incurred in developing or reclaiming the swampy part money spent for the survey or the fee for the blessing of the land. Total relief sought amounting to N11,000 (Eleven thousand naira.).

After hearing evidence from both sides the customary court entered judgment for the plaintiff as follows:

(a) N800.00 (Eight hundred naira) be refunded for the sale of the land to the plaintiff.

(b) Eight thousand, two hundred naira (N8,200) being expenses incurred during the development of the said portion of the (land) plot to date.

(c) N35.00 (thirty-five naira) for costs, all amounting to the sum of N9,035 (nine thousand and thirty-five naira) be paid to the plaintiff within one month period from now….”

Dissatisfied with the judgment the defendants filed an appeal at the Port Harcourt High Court, Ungbuku CJ (as he then was) presided.

The learned chief Judge reasoned thus:

“… I am of the view that the customary court indeed erred in law in granting to the plaintiff/respondent a relief that he did not seek in his claim before the customary court. In the said judgment the court awarded a total sum of N9,035.00 (nine thousand and thirty-five naira) only to the plaintiff saying that the sum be paid within one month from the date of judgment. It is clear from the claim of the plaintiff that he was asking from the defendants/appellants in monetary term is above the jurisdiction of customary court. The customary court has jurisdiction limited to N5,000 (five thousand naira) only…”

And concluded as follows:

“…The appeal is allowed. The judgment of the customary court is a nullity and is set aside. Costs and or any money if paid to the respondent in compliance with the said judgment should be refunded….”

The plaintiff lodged an appeal before the Port Harcourt Division of the Court of Appeal, that court in a majority decision. (2-1) confirmed the judgment of the appellate High Court. The Court of Appeal in the penultimate paragraph said:

“…I would and do uphold and affirm the decision of the appellate High court. The customary court assumed jurisdiction and made gratuitous awards where it had no power to do so.

This appeal is against that decision, Briefs of argument were filed and exchanged. The appellant (plaintiff) brief was filed on the 3rd of November 2006 while the respondents’ brief was filed on the 18th of December 2006.

Learned counsel for the appellant distilled three issues from his five grounds of appeal. The issues are:

1. Whether the lower court was right when it refused to set aside the judgment of the Bayelsa State High Court presided over by Ungbuku CJ (as he then was), when the said judgment of the Bayelsa High court was based on a purported issue of jurisdiction raised suo motu and resolved against the appellant in the said judgment of the said Bayelsa State High Court without hearing the appellant.
2. Whether the lower court was right when it held that the trial customary court granted reliefs not sought for by the plaintiff /appellant before the customary court.
3. Whether the lower court was right when it held that the trial customary court had no jurisdiction to entertain the plaintiff /appellant’s claims before it.

On the other side of the fence, learned counsel for the respondents’ also formulated three issues for determination. They read:

1. Was the customary court, Kaiama right to grant an unsolicited relief or excess of solicited relief.
2. Was the lower court right to set aside the decision of the customary court when it heard that the customary court had no jurisdiction to adjudicate a claim for relief above the limits set for it by law.
3. Was the lower court right to uphold the issues of jurisdiction raised suo motu by Chief Judge Ungbuku (as he then was) of Bayelsa State High Court.

After a diligent examination of the briefs and consideration of the issues formulated by both sides there is no doubt that the real grievance in this appeal is:

(a) Whether the customary court exceeded its jurisdiction.

(b) Whether the Chief Judge was right to raise the issue of jurisdiction suo motu.

Accordingly only the appellants’ issue 3 and the respondents’ issue 3 are relevant and would be considered in this appeal.

At the hearing of the appeal on the 16th of October 2012 learned counsel for the appellant, Mr. M. K. Wodu adopted the appellants brief filed on the 3rd of November 2006 and urged this court to allow the appeal.

Learned counsel for the respondents’ Mr. E. C. Aguma adopted the respondents brief filed on the 8th of December 2006 and urged on us to affirm the judgment of the Court of Appeal.

ISSUE 1

Whether the lower court was right when it held that the trial customary court had no jurisdiction to entertain the plaintiff /appellant’s claims before it.

Learned counsel for the appellant observed that after taking into cognizance the entire proceedings before the customary court it is clear that the appellant’s suit is a land matter relating to the ownership, occupation or possession of land, submitting that the customary court had jurisdiction to entertain the appellant’s suit and grant the reliefs sought.

Learned counsel for the respondents, observed that it is the plaintiff’s claim that determines jurisdiction, contending that the claim before the customary court was for refund of money, a breach of contract claim. He submitted that the customary court, exceeded its jurisdiction when it awarded a total of N9,035.00 above its limits. Concluding, he observed that the trial in the customary court was without jurisdiction and so a nullity. He urged this court to resolve this issue in the affirmative in favour of the respondents.

All courts and their jurisdiction are provided by the Constitution,and/or relevant state legislation. Jurisdiction is a question of law. It is fundamental in all proceedings. Where a court does not have jurisdiction over a matter before it and it proceeds to hear and determine the matter, the entire proceedings no matter how well concluded would amount to a nullity. This is so since a judgment given without jurisdiction creates no legal obligation, and so such a judgment does not confer any rights on any of the parties. Jurisdiction is so important, in that it can be raised at any stage of the proceedings, on appeal, and even in the Supreme Court for the first time. Once raised all proceedings must abate until it is resolved.

See:Barclays Bank of Nig. v. Central Bank of Nig. 1976 6 SC p.175.

Adeyemi v. Opeyori 1976 9 – 10 SC. p.31

Ajao v. Popoola 1986 5 NWLR Pt.45 p.802

Usman Dan Fodio University v. Kraus Thompson Organisation Ltd 2001 15 NWLR Pt.736 p.305.

In the court of first instance, usually the High Court, jurisdiction is raised by the entry of conditional appearance, or in the pleadings, or by a Motion on Notice.

In the Court of Appeal and the Supreme Court by including it as a ground of appeal, and incorporating arguments on it in the brief. The court treats the issue of jurisdiction first. If it succeeds the hearing of the appeal abates, with a striking out order. If it fails, the appeal is heard and a judgment on the merits of the case delivered.

Jurisdiction can be raised informally, but it is desirable that some process is filed, in order to put the adverse party on good notice, so that he is not taken by surprise. The well laid down position of the law is that the plaintiffs claim determines jurisdiction. The claim of the plaintiff should be carefully examined to see if it comes within the jurisdiction conferred on the court by the relevant legislation. See

Anya v. Iyayi 1993 7 NWLR Pt.305 p.290

A.G. Kwara State v. Warah 1995 7 NWLR Pt.405 p.121

Anigboro v. Sea Trucks Nig. Ltd. 1995 6 NWLR Pt.399 p.43

Onuorah v. Okeke 2005 10 NWLR Pt.932 p.47

The relevant legislation is the River State Customary Court Edict (No .7) of 1987 applicable in Bayelsa State Section 6 (1) states that:

“A customary court shall have and exercise original jurisdiction over causes and matters set out in column 1 of the first schedule to the extent or limit set out in column 2 of that schedule opposite the causes and matters.

Column 1. Column 2

Causes and matters Limit of jurisdiction of Customary Court

1. Land causes and land

matters relating to the unlimited

ownership, occupation or

possession of land

2. …………… unlimited
3. …………… unlimited
4. …………… unlimited
5. Causes and matters relating

to inheritance upon intestacy N5,000

6. Civil actions in contracts, tort

at common Law and at

customary law N5,000

The primary consideration when interpreting provisions of any legislation is to find out the intention of the legislature, and where words used are clear and unambiguous they must be given their plain and ordinary meaning. All the judge is required to do is to interpret the statute to bring out its intended meaning.

See

Mobil v. F.B.I.R 1977 3 SC p.53

Tariola v. Williams 1982 7 SC p.27

Odeneye v. Efunnuga 1990 1 NWLR pt.164 p.618

The intention of the legislature is that customary courts shall have their jurisdiction limited to N5,000 for matters relating to inheritance, civil actions in contract, torts at common law and at customary law.

Now, what is the plaintiff’s claim. It reads:

1. An order of this Honourable court asking the defendants to refund the sum of N800 (eight hundred naira) only being the amount of money paid to the defendants for the sale of a piece or portion of land situate at Ogienama compound to the plaintiff along with two bottles of native gin, a packet of cigarette and some bottles of mineral amounting to the sum of N50 (fifty naira).
2. An order of this Honourable court to ask the defendants to refund the sum of N10,200 (Ten thousand, two hundred naira) being expenses incurred in developing or reclaiming the swampy part, money spent for the survey or and fee for the blessing of the land. Total relief sought amounting to N11,000 (Eleven thousand Naira).

There is no doubt that the plaintiff (appellant’s) claim is for the refund of expenses incurred in securing and preparing the land, the subject matter of the controversy between the parties. The claim clearly has nothing to do with ownership, possession or occupation of the land. The appellant claimed a monetary refund and the customary court awarded N9,035, a sum beyond the statutory limits of the customary court’s jurisdiction which must not exceed N5,000 as provided for by section 6 (1) of the River State Customary Courts Edict (No.7) of 1987. The Court of Appeal was right when it held, confirming the decision of the appellate High Court that the Customary Court had no jurisdiction to entertain the appellant’s claims before it. The judgment of the Customary Court is a nullity.

In his submissions learned counsel for the appellant said, and I quote him:

“It is our respectful submission that taking into cognizance the entire proceedings before the trial customary court the appellant’s suit before the trial customary court was a land cause or land matter relating to the ownership, occupation or possession of land.”

In Customary Courts Rules of procedure and Practice well known and followed in superior courts of record are not strictly followed. As quite rightly pointed out by learned counsel for the appellant the proceedings from a customary court should be examined in detail so that the real issue before that court is easily identified. It is the substance of the matter that is of importance in customary courts and not the form in which it is presented. The parties are members of the Ogienema family of Odi. In this family if anyone wants land to build a house, land would be given to him free of charge. Land is not sold to family members. The plaintiff wanted land to build a house so he approached the 1st respondent who gave him part of his portion of land. The plaintiff gave the 1st respondent the usual token of native gin, a packet of cigarette and N800.

The plaintiff spent about N8,000 to prepare the plot for development. The respondent resiled. They wanted their land returned to them. The appellant, then asked for a refund of the money he spent on the land so far.

Oral testimony of witnesses called by both sides in the customary court is replete with evidence that the plaintiff claim is for a refund of money spent by the plaintiff in preparing the land for development. The dispute is on the amount to be refunded. The respondents were prepared to refund N800, while the appellant insisted that he was entitled to N11,000.

After examining the entire proceedings in the customary court it is easy to identify, the real issue in controversy between the parties. There can be no doubt that the plaintiff’s claim is for the refund of expenses incurred in securing and preparing the land, the subject matter of the controversy between the parties.

It is obvious that if one examines the plaintiff’s claim or the entire proceedings it becomes abundantly clear that the plaintiff’s claim has nothing to do with ownership, possession or occupation of land. Rather the plaintiff’s claim is for a refund of money which he spent to prepare the land for development.

The Court of Appeal was correct to affirm the decision of the appellate High Court which correctly found that the customary court awarded the sum of N9,035 to the plaintiff appellant, a sum beyond the jurisdictional limits of N5,000 provided by the Rivers State Customary Court Edict (No.7) of 1987 applicable in Bayelsa State.

ISSUE 2

Was the lower court right to uphold the issue of jurisdiction, raised suo motu by Ungbuku CJ (as he then was) of Bayelsa State High Court.

Learned counsel for the appellant observed that it amounted to a denial of his client’s right to fair hearing for the learned chief judge to raise the issue of jurisdiction of the customary court to hear the matter suo muto without affording counsel a hearing. Reliance was placed on Ajuwon v. Akanni 1993 9 NWLR Pt.316 p.182, Oyekanmi v. NEPA 2000 15 NWLR (Pt.690) p.414

Learned counsel submitted that the entire proceedings in the appellate High Court ought to be nullified since the learned trial judge did not give the appellant or his counsel an opportunity to address him on such an important issue as jurisdiction.

Learned counsel for the respondent observed that the jurisdiction of customary court is, statutorily provided for by law, and by virtue of Section 74 of the Evidence Act courts are to take judicial notice of all laws and enactments, contending that since there was no miscarriage of justice the appellants were not denied fair hearing. Reference was made to B.W.S.E. Ltd. v. Nanze Int’l Ltd 2001 FWLR pt.69 p.1435

He urged this court to resolve this issue in favour of the respondents.

When a judge raises an issue on his own motion, or raises an issue not in the contemplation of the parties, or an issue not before the court, the judge is said to have raised the issue suo motu. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue, This is what procedural fairness entails. See

Kuti v. Balogun 1978 1 SC. p.53

Ogiamen v. Ogiaman 1967 NMLR p.246

Adeniji v. Adeniji 1972 4 SC p.10

Irri v. Erhuehobara 1991 2 NWLR Pt.173 p.252.

but there is an exception to this procedure. There would be no need to call on counsel to address the court on an issue raised suo motu by the judge-

1. When the issue relates to the court’s own jurisdiction;
2. When both parties are not aware or ignored a statute which may have bearing on the case; or
3. When on the face of the Record serious questions of the fairness of the proceedings is evident. See Comptoir Commercial & Ind. S.P.R. Ltd v. O.S.W.C. 2002 FWLR pt.105 p.839

M. O. Kolawole & ors v. A.G. Oyo & 3 ors 2006 3 NWLR Pt.966 p.50

The issue relates to the customary court’s jurisdiction. The learned appellate judge was correct to take judicial Notice of the provisions of the Rivers State Customary Courts Edict (No.7) of 1987 and Rule that the trial customary court exceeded its jurisdiction fixed at N5,000 when it awarded N9,035 to the appellant. There was no need for the learned appellate judge to call on counsel to address him on the Rivers State Customary Courts Edict (No.7) of 1987 since the Edict states in clear terms the limits of the court’s jurisdiction, a fact that needs no submission on.

Finally, since the issue of jurisdiction raised suo motu by the judge without affording counsel a hearing has not led to miscarriage of justice the decision will not be set aside. The Court of Appeal was right to uphold the issue of jurisdiction raised suo motu by the learned appellate High Court Judge.

There is no merit in this appeal. It is dismissed with no order on costs.

SC.223/2006