Tajudeen Olaleye-ote & Anor V. Alhaja Falilatu Babalola (2012)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

Sometime in May 1989, the Respondent as Plaintiff had taken the Appellants as Defendants to an Ifo Grade II Customary Court, Ogun State claiming as follows:

“Plaintiff seeks for declaration of title claiming the lawful ownership of a piece of land which was inherited from my late father Abdu Sarki Areago with purchase receipt dated 21st of April, 1940. The plaintiff’s claim against the defendant is for the sum of one thousand naira (N1,000.00) being for trespass on the landed property being and lying at Aboro Area of Agbado in Ifo/Otta Local Government Area.

The boundaries are as follows:

It measures 2 acres. On the right is bounded by Late Babo Alawofun landed property. On the left in bounded by Oto landed property. At the South is bounded by Oto landed property.

That an interim injunction to restrain the Defendant her agents or privies form owing or entering into the said land in dispute pending the determination of this case by the Honourable Court.

The annual rental of the said landed property valued Five Hundred Naira (N500,00)”.

The case proceeded to trial at the Customary Court. On 7/6/1989 one Alhaji Omidina Ote (now deceased) appeared in Court as representing the defendant (Alhaja S. A. Adeola) but the Court disregarded his appearance on the ground that he is a stranger to the proceedings. However, upon the Respondent’s application the aforesaid Alhaji Ote was eventually joined as the 2nd Defendant by the order of the trial Customary Court.

Thence later, the trial Customary Court Judge, delivered his judgment on 19/9/1990, making the following orders:

“(a) the plaintiff’s claim on title of ownership to the piece of land as described on the claim sheet prevails. The Defendants are subsequently restrained from further alienating on the said land henceforth.

(b) The Defendants are to pay the sum of Six Hundred Naira (N600,00) as damages to the plaintiff .”

Dissatisfied, with this decision, the Respondents appealed to the Ogun State High Court. In it’s judgment delivered on 7/7/99 the High Court allowed the appeal and struckout the entire proceedings of the Customary Court on the ground that lacked jurisdiction to adjudicate on the matter brought before by the Plaintiff/Respondent herein.

The Plaintiff/Respondent was dissatisfied with the decision of the High Court and consequently appealed same to the Court of Appeal, Ibadan Division by its considered judgment delivered on 16/7/2004, the judgment of the High Court was set aside while that of the Customary Court was restored. It held inter alia, as follows:

“The state legislature in Ogun State is not deprived of the powers of creating the Customary Court in its area and defining the powers, scope and jurisdiction on issue of land is as handed over by the Land Use Act, 1978 which is to cover land in rural areas regardless of their value.”

Being dissatisfied with this decision the Appellants have appealed to this court on two Grounds by Notice of Appeal dated 13/9/2004 and filed on 14/9/2004.

Briefs of argument were filed and exchanged by the Counsel for the respective parties. Appellants’ brief was dated and filed on 30/10/07. Brief of the Respondent dated 14/9/2010 was filed on 17/9/2010.

In the appellant’s Brief of Argument, two issues identified for determination are as follows:

“(i) Having regard to the annual rental value of the land in dispute which clearly exceeds the one prescribed by the enabling Customary Courts Law/Edict of Ogun State, whether the Court of Appeal was correct when it held that the Ifo Grade II Customary Court possesed the requisite jurisdiction to adjudicate over the Respondent’s claim.

(ii) Whether the Court of Appeal was right when after having held that the issue of the appointment, membership and constitution, jurisdiction and extent of powers of Customary Courts in Ogun State are embodied in the Customary Courts Law and Edict particularly in respect of their jurisdiction in respect of land is only as handed down by the Land Use Act 1978 regardless of the value of the land.”

The only issue distilled by the Respondent for determination reads:

“(a) Act (sic) whether the jurisdiction of a Customary Court in the South Western part of Nigeria can be limited in a land case on the annual rented value or the value of the land.

(b) If the answer is yes (and I wish it is no (sic) then whether in view of the provision of Section 41 of the Land Use Act, a Litigant is not bound by the value of the land in dispute as provided in the Customary Laws of Ogun State but as provided for in Section 41 of the Land Use Act 1978”.

I must observe that from the record of proceedings, the point of contention between the parties right from the High Court through the Court of Appeal was the competence or otherwise of the trial Customary Court to determine the Appellant’s action before it. The Apellants in their brief therefore aptly brought out clearly the issues distilled from the two grounds of appeal. Quite conveniently therefore, the two issues which are inexplicably inter-twined have been argued together, and I shall so treat them later.

It is the submission of the Appellant’s Counsel that by virtue of the provision of the First schedule to the Customary Courts Law, 1980, which was the relevant law in Ogun State when the action was initiated at the Trial Customary Court in 1984, and schedule 1 of the Customary Courts Edicts 1986, which was the operative law when the action was tried by the Court in 1989, the Respondent’s claim was beyond the jurisdiction vested in the Customary Court. It is contended that by the First Schedule, while the jurisdiction of Customary Court Grade I is unlimited in respect of land matter that of Customary Court Grade II is limited to causes or matters in which the value of the land does not exceed N1,000.00 or in which the rental value does not exceed N200 per annum.

It is submitted that a Court of law is only competent to exercise its adjudicatory authority to the extent and not beyond the power conferred on it by the statute or the law creating the court. That the Statute that created Customary Courts in Ogun State as at 1989 when the Ifo Grade II Customary Court became seised of jurisdiction over the subject of this appeal is the Customary Courts Edict No.7 of 1986. It is argued that by reason of the fact that the original claim was filed at the Otta Grade II Customary Court in 1984 the Customary Courts Law No.14 of 1989 is also relevant. It is therefore, submitted that since the Respondent herein herself indicated the rental value of the subject matter of her claim is N500, in view of this value stated the Ifo Grade II Customary court had, no Jurisdiction to adjudicate on the land in dispute in this suit. Reliance was placed on the cases of ADIKATU ONASANYA v. ADEGUNLE SOPITAN (1975) 1 NMLR 30 at 33; and ALADE v. ALEMULOKE (1988) 1 NWLR (pt.59) p.207 at 215.

Having analysed the provisions of section 41 of the 1979 constitution and sections 3 and 1 of the Customary Courts Law 1980 and the Customary Court Edict, 1986 respectively, of Ogun State, Learned Counsel for the Respondents has submitted that there is no conflict whatsoever in the aforesaid provisions. That Section 41 of the Land Use Act does not have the effect of creating a Customary Court, Area Court or any other Court of equivalent jurisdiction rather it only indicates the type of Court that can be approached for redress in matters relating to Customary Right of Occupancy and no more.

It is finally submitted that the case of ADISA v. OYINWOLA (2000) 10 NWLR (Pt.674) 116 relied on by the Court below as the “locus classicus” on this matter, is no authority for the proposition for that Court to hold that “jurisdiction on the issue of land is as handed over by the Land Use Act 1978 which is to cover rural areas regardless of their value”. That this case does not remove the stratification of Customary Courts and neither does it tamper with the delimitation of their jurisdiction based on the value of the land in dispute. In the light of the foregoing this Court is urged to allow the appeal, set aside the decision of the lower court and to restore the judgment of the High Court.

Learned Counsel for the Respondent on his part submitted that the provision of S.41 of the Land Use Act is not necessarily in conflict with S.16 of the schedule to Ogun State Customary Court Edict, 1986. It is submitted that both sections of these provisions confer jurisdiction on Customary and Area Court on Lands, the subject of Customary Right of Occupancy.

Learned Counsel for the Respondent set out the issues and the ratio decidendi in the two cases of namely ONASANYA v. OSOPITAN (supra) and ALADE v. ALEMULOKE (supra) relied on by the Appellants. He submitted that in the two cases the issue for determination has to do with whether it was necessary to state the value of the land in dispute before a Grade ‘A’ Customary Court of unlimited jurisdiction. The answer in both is that it is quite unnecessary since the jurisdiction of the customary court Grade A was not limited by the value of the land in dispute unlike that of the customary court Grade B. That the Onasanya’s case was decided in 1975 about 3 years before the introduction of the Land Use Act. Hence, the Act was not cited in determination of that case, moreso that the statements made about rental value, in the case was made obiter. That there was no decision that the jurisdiction of a Grade B or II customary court shall be limited by the annual rental value or the value of the land in dispute. Moreover, although this court decided that case after the commencement of the Land Use Act, the Land Use Act under its S.41 was not alluded to. It is submitted that the decision in that case can rightly be said to have been made per incuriam.

It is contended by the Learned Counsel for the Respondent that whatever date is taken between 1984 and 1989 as being the time when the suit was filed, one clear thing is that as at 1990 when trial was conducted and the judgment delivered, the Customary Court Law of Ogun State 1980 had ceased to apply. It is submitted that the applicable Law is the Customary Court Edict of 1986. It is further submitted that there is no necessity or the need for the two Laws (supra) to apply concurrently.

I must say at the onset that while the Learned Counsel for the Respondent earns my commendation for being extra vigilant in drawing our attention to some obvious slips in the Lead Judgment; he at the same time gets my admonition for proliferation of issues from only two grounds of appeal of the Appellants. I shall say no more but to highlight the slips so as to put the records of appeal straight. The first slip noted in the lead judgment on page one is where it was stated:

“While arguing the appeal, the Learned Counsel for the Appellant – Mr. O. O. Ojutalayo decided to argue one of the additional grounds of appeal”

I agree with the Learned Counsel for the Respondent herein that the correction here is that the party which his Lordship referred to as the Appellant is not the “Appellant” but the “Respondent”, while M. O. Ojutaloyo could have only appeared for them. Again on the last page of the lead judgment, it is stated thus:

“The appeal lacks merit and it is hereby dismissed”

Obviously this is a slip. What his Lordship could only have meant is that the appeal “succeeds”

Thirdly, the award of N5,000.00 costs to the “respondent” the last page of the judgment should be deemed “costs to the “Appellant”

Lastly, there are some instances in the lead judgment where the “Appellant” was erroneously interchanged for “the Respondents” and vice versa.”

Now to the appeal. As can be gleaned from the appeal, the position of the Appellant before the court of Appeal is that since the annual rental value of the plaintiff’s land was stated to be N500 which in excess of the N200; then the Ifo Grade II Customary Court had no jurisdiction to entertain her claim and that the High Court was right, when it struckout the claim. Another erroneous argument put forward by the appellant is that the Ogun State Customary Court Edict 1986 is not a creation of the constitution. It was also submitted that the provision of S.41 of the Land Use Act is not in conflict with the first schedule to the Edict. But the Appellant came out with contradictory argument when he says that the Edict conflicts with the Land Use Act but since the Ifo Grade II Customary Court was not created by the Land Use Act or since the Land Use Act cannot or should not be said to confer jurisdiction on the Land matters, the applicable law is not the Land Use Act but the Customary Court Edict of 1986 of Ogun State. However, the position of the law is that the Land Use Act confers jurisdiction on Land, the subject of Customary right of Occupancy and that the Land Use Act being a direct enactment under the Constitution is the law applicable by virtue of its S.41.

I shall have recourse to S.41 of the Land Us Act 1978, and the 1st schedule to the Customary Edict 1986 Section 41 reads:

“An Area Court or Customary Court or other Court of equivalent jurisdiction in a state shall have jurisdiction in respect of proceedings of a Customary Right of Occupancy granted by a Local Government under the Decree, and for the purpose of this paragraph, 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 Court shall have effect with such modification as would enable effect to be given to this section.”

Learned Counsel for the respondent has cited and relied on several other provisions in his submissions, dealing with the creation and jurisdiction of the Customary Courts in Ogun State, when the action was initiated and tried by the trial Customary Court. He alluded to the Customary Courts Edict No.7 of 1986 the statute that created Customary Courts in Ogun State as at 1989 when the Ifo Grade II Customary Court became seised of jurisdiction over the subject of this appeal. It is contended that by reason of the fact that the original claim was filed at the Otta Grade II Customary Court in 1984 the Customary Courts Law No.14 of 1980 is also relevant. The provisions of those two pieces of legislation are in pari materia on the issues of creation and jurisdiction of the two grades of Customary Courts in Ogun State, especially sections 3 and I respectively of these two legislations dealing with the establishment of Customary courts in Ogun State while sections 17 and 16 respectively of the two statutes provide for the jurisdiction of the Courts in their respective schedules. The main argument of the appellant is hinged on the schedule to the two legislations. It is reproduced thus:

“Causes or matters in which the value of the land does not exceed N1,000,00 or in which the rental value does not exceed N200.00 per annum”

It is contended that in view of the rental value thus stated, the Ifo Grade II Customary Court had no jurisdiction to adjudicate on the land in dispute in this suit.

It is the submission of Appellant’s Counsel in their brief of argument that the rental value of the land over which the Ifo Grade II Customary Court can adjudicate, must not exceed N200.00 per annum. The Respondent stated the annual rental value of her land as N500.00. It is the Appellant contention that for this reason, the Court below was wrong when it set aside the judgment of the High Court which struck out the Respondent’s claim.

Both section 41 of the Land Use Act and section 16 of the 1st schedule of the Ogun State Customary Court Edict confer of jurisdiction on Customary Courts to adjudicate on land matter. The subject of Customary Right of Occupancy. The only difference that can be pointed out here is the court to which a litigant can approach be it Customary Court or the Area Court.

It is noted that the Appellants in their Brief of argument citing the cases of ADIKATU ONASANYA v. DEGUNLE SOPITAN (1975) 1 NWLR 30 at 33 and ALADE v. ALEMULOKE (1988) 1 NWLR (pt.69) 207 at 215, has submitted that the annual rental value of the land in dispute ousted the jurisdiction of the Customary Court. I could not lay my hand on the ONASANYA case (supra). I read ALADE case (supra). In the latter case the issue for determination has to do with value of the land in dispute before a Grade ‘A’ Customary Court of unlimited jurisdiction.

This Court decided that:

“Grade “A” Customary Courts being conferred and invested with unlimited jurisdiction in land cases there will be no need stating any amount on the particulars of the writ because its jurisdiction is not limited by the value of the land in dispute.

In any case, ONASANYA’s case was decided in 1975, about 3 years before the introduction of the Land Use Act into our statute book. The Land Use Act was not cited and relied upon.

Also the case of ALADE v. ALEMULOKE (supra) although this Court decided that case after the commencement of the Land Use Act, its section 41 was not alluded to. The case can rightly be said to have been decided per incuriam. I can safely conclude that, in the light of my observations in the two cases, relied upon by the Appellant regarding the rental value of the Land in dispute, the value does not have to be stated, before a Grace A or 1 Customary Court since the jurisdiction of such is not limited by the value of the land in dispute Whither then is the appellant’s authorities for their submission that the jurisdiction of the trial Customary Court Ifo Grade II or indeed that of any “Native” Court can be limited by annual rental value or the real value of the land in dispute. I do not think either of the two cases of ONASANYA or ALEMUKOLE supports the Appellants case.

It is the consensus of the parties to this appeal that the jurisdiction which a Court of Law has to adjudicate over a matter can only be derived from either the Constitution, Act, Decrees Law and Edicts. See AFRICAN NEWSPAPERS OF NIGERIA v. FEDERAL REPUBLIC OF NIGERIA (1985) 2 NWLR (Pt.6) 137.

I shall now go down the memory lane for the purpose of the appeal. The 1979 and 1999 Constitution created superior Courts of Records in Nigeria under their respective S.6. These Courts include Supreme Court, the Court of Appeal, the Federal High Court, the State High Court, and so on. These Constitutions did not directly mention the Customary and Area Courts. But by virtue of S.6(5) (2) (K) of 1999 Constitution state Houses of Assembly are enjoined to make laws establishing Courts beside those specifically mentioned as aforesaid.

Despite the creation of the superior court by the Constitution, each of these courts has a statutory law that can be said to establish it. For example, the Supreme Court Act 1960 (Cap S.15 Laws of Fed. 2004), Court of Appeal Act 1976 and the Court of Appeal Act of 1976. By comparison, the inferior Courts, which the Customary Courts in Ogun State are) have laws that established them.

It is in pursuance of the above that the Ogun state Government decided to establish and confer jurisdiction on Customary Courts in the state over matters, the subject of Customary law vide the passage of the Customary Court Law of Ogun State 1980 and the Customary Court Edict of 1986.

I had set out quite a number of laws which I thought could assist in determining this appeal. However, I agree with the Learned Counsel for the Respondent that there is need to clear the ambiguity as to which one of the customary Laws mentioned earlier applies in this appeal. I shall therefore, recapitulate the following points. The new Local Government Areas were created in Ogun State after 1984 pursuant to which the suit had to be transferred to the Ifo Grade II Customary Court by virtue of the fact that the land in dispute had fallen under the new Local Government Area. This was in 1989. The suit was therefore filed in 1984 and not 1989.

However, whichever date is taken between 1984 and 1989 as being the time when the suit was filed it is clear that as at 1990 when the trial was conducted and the delivery of judgment by the Ifo Grade II customary Court, the Customary Court Law of Ogun State had ceased to apply and the applicable law is the Customary Court Edict of 1986. This should be so because the law establishing a Court and conferring jurisdiction on it is basically a procedural law. In matters of Laws having to do with procedure, the applicable law is the law in force at the time of the pendency of a suit and not the procedural law in force when a cause of action arose: See ROSSEL v. A C B. (1993) 8 NWLR (Pt.312) 382 at 472 and 474.

It must be noted that from the High Court of Ogun State which adjudicated over this suit (as an appellate Court) to the Court of Appeal and now this Court the applicable customary law is the Customary Court Edict 1986. It is therefore that law that is applicable to this suit and for the consideration of this Court. I do not see the need for the two laws to apply concurrently. From this provision it is clear that it is not only annual rental value of N200.00 that determines the monetary jurisdiction of Grade II Customary Court of Ogun State on land matters. Indeed another determining factor of the jurisdiction of the Grade II Customary Court, Ogun State in land matter is the value of the land which must not exceed N1,000.00. Clearly the real or purchase worth of a land is different from its annual rental value which is to annual rent payable on that land. However, it is not in all cases that the word “or” in a statute connotes disjunctive principle, to express two or more things thereby indicating the meaning of the words “and” and “or”. As used in the first schedule of the Customary Court law 1986 herein “or” can only mean “and” not disjunctive though the word “and” is not used in that enactment. This is one provision which tends to oust the jurisdiction of a Court of Law. It must be strictly construed. See ABACHA v. FAWEHINMI 2000 FWLR (pt.4) 542, EMUZE v. VICE CHANCELLOR UNIBEN (2003) FWLR (Pt.170) 1411.

The cheapest way to oust the jurisdiction of courts is to cling to technicalities in the interpretation of ouster clauses. To simply ascribe to the annual rental value of a land in a case as being in excess of the one stipulated under the law without stating the real value of the land in dispute or vice versa, as sufficing this will easily oust the jurisdiction of Ifo Grade II Customary Court. For the jurisdiction of a Court to be ousted ambiguity or doubt in the statute should not be entertained. It is one of the cardinal principles of interpretation of statute that the Court can supply an omission in a law to ensure reasonableness therein. No doubt the real value of the land in dispute is no where stated in the writ.

Thus the effect of non-stating of the value of the disputed piece of land can broadly be set out in two, viz:

(1) Firstly, that even though the trial Customary Court would not have had the jurisdiction to entertain the suit, for the reason that the value of the land was not disclosed, it nonetheless went ahead, assumed jurisdiction and entertained the suit;

(2) Secondly, even though there was no Grade I Customary Court in Ifo, the Customary Court Grade II assumed the status of Grade I Customary Court before which the value of the land be it rental or real does not need to be stated in a writ: See ONASANYA v. SOPITAN (supra) and ALADE v. ALEMULOKE (supra); where it was held that in a land case before a Native Court A or I, value of the land in dispute can be dispensed with. Whichever of the two results is adopted the fact remains that the Customary Court of Ogun State Grade II, irrespective of its class or classification assumed jurisdiction over land in this case mindless of the value of land as stated in the writ as above that prescribed by the Law.

It is this practice that the Court below affirms, when it held that the Ifo Customary Court Grade II is not different from Grade I. I do not think in any case that the classification appears to have any impact on that Court.

Assuming that the jurisdiction issue in this appeal can be properly determined solely on the annual rental value of the land in dispute without recourse to the value of the land, I would eventually come to the same conclusion that the lower court was right when it held that irrespective of the Grade of the Customary Court in Ogun State, a prospective land claimant can approach any Customary Court within his District in the appropriate Local Government Area. I do not think that the Constitution intends the mundane categorization or classification of one Customary Court or Area Court as “inferior” or “superior”. I reiterate however that the Ogun State is not deprived of the power to create Customary Courts in its area and defining the powers, scope of operation and jurisdiction of these Courts. However their jurisdiction on issue of land is governed by, the Land Use Act, 1978 which provides, for these Courts to cover land cases in rural areas regardless of their value. A litigant is entitled to seek redress in a land matter in any grade of the customary courts regardless of the value of the land.In the light of the foregoing, I come to the conclusion that this appeal lacks merit and it is hereby dismissed. The decision of the Court below is affirmed. I assess costs of N50,000.00 against the Appellants but in favour of the Respondent.

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SC.197/2004