Abraham Oyeniran & Ors. V. James Egbetola & Anor. (1997)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C.
This is an appeal from the judgment of the Court of Appeal, Ibadan Division. In its decision, the lower court affirmed the judgment of Ajileye J. of Oyo State High Court which the learned trial judge delivered at Oshogbo. The claim of the plaintiffs, who are respondents in this appeal, as per their writ of summons, is as follows:
“(i) Declaration that the plaintiffs, by customary occupation are entitled to the customary right of occupancy to the plaintiff’s Songbe/Idi-Iroko Farmland situate lying and being at Songbe/Idi-Iroko, Kuta in Iwo East Local Government Area of Oshun Division of Oyo State of Nigeria; (Relevant Plan of the said disputed land to be filed with the Statement of Claim will show specific delimitations.)
(ii) N1000 being General Damages against the defendants for trespass committed upon the said farmland by the said defendants and/or their agents between February and May, 1982.
(iii) Injunction restraining the defendants, their agents, servants and/or privies from further acts of trespass upon the said farmland.”
From the reliefs claimed in the Writ of Summons, the parties are in dispute over title to a piece of farmland at Songbe/Idi-Iroko, Kuta, in Iwo East Local Government Area, now in Osun State. At the conclusion of the trial the learned trial Judge, in a considered judgment, found in favour of the plaintiffs/respondents and granted all the reliefs sought for in the writ. In claim (ii) however the trial court awarded only N750.00 damages. Dissatisfied with the decision of the trial High Court the appellants appealed to the Court of Appeal. At the Court of Appeal the appellants brought in for the first time the issue of jurisdiction. Ground 5 reads:
“The learned trial Judge erred in law when he assumed jurisdiction over the land in dispute and which land is subject to Customary Right of Occupancy.”
Two issues were raised in respect of Ground 5. They are:
“(i) Whether the High Court had jurisdiction to adjudicate on the matter before it having regard to the provisions of the Land Use Act 1978, particularly sections 39 and 41 thereof.
(ii) Whether there is anything on toe record to show that the land in dispute is in a rural area.”
The Court of Appeal considered all the issues including the issue questioning the jurisdiction of the High Court to adjudicate in the matter and in a considered judgment it dismissed the appeal. The appellants have further appealed to this court on five grounds of appeal. The following 6 issues have been formulated by the appellant for the determination of the appeal:
“1. Whether the learned trial Judge was right in finding for the plaintiffs/respondents, when the plaintiffs/respondents had not proved a case of trespass against the defendants/appellants to the satisfaction of the court.
- Whether the plaintiffs/respondents who claimed title to the land in dispute on the ground of settlement by their ancestor have established such title.
- Whether the Court of Appeal was right in upholding the finding by the learned trial Judge that Exhibits C and C1 estop the defendants/appellants in spite of the evidence adduced by 3rd Dw (Page 29) and 4th D.W. under cross examination (page 32 lines 24 – 25 of the Record of Appeal) and admission by the plaintiffs/respondents on page 77-
“Portions of the original tract of land were later conceded to
(i) Oyakowide and Oyeleke – Exhibit “B”
(ii) Bakare and Adedokun – Exhibits “C and C1 by settlement”.
- Whether the Court of Appeal was right in holding that the plaintiffs/respondents are entitled to title to the land in dispute when on pages 102 – 103 of the record of proceedings it was held that the traditional evidence given by the 3rd P.W. was inadmissible.
- Whether Court of Appeal was right to have upheld the trial Judge’s finding that the State High Court has jurisdiction over land the subject matter of a Customary Right of Occupancy.
- Whether the Court of Appeal was right to have drawn inference that it was the plaintiffs/ respondents case that Morolahun made a grant of land to Ashomogbeleon which the later settled – (vide pages 108 – 109 last paragraph of the Record of Appeal).”
Respondents’ counsel, Mr. Adebayo Thanni, adopted the above issues and based his submissions on them. In issue 5 the appellants raised a fundamental legal argument, to wit, the trial High Court has no jurisdiction in respect of proceedings which concern the grant of a customary right of occupancy by a Local Government. That being so, I will first deal with Issue 5. If I agree with the submission of the learned counsel the appeal will be determined on that issue alone.
The first point to consider before going into the issue of jurisdiction is the location of the land in dispute. It had been held by the Court of Appeal in the lead judgment delivered by Ogundare, JCA. (as he then was) that the land in dispute was subject to customary right of occupancy. In the following decision:
“The simple answer is that Kuta where the land in dispute is situate is not an urban area for the purposes of the Land Use Act 1978 as it has not been so declared – see: Land Use (Declaration of Urban Areas, Fees & Forms) Regulations which declared the following cities and towns as urban areas, to wit, Ibadan, Ogbomosho, Oshogbo, Ilesha, Iwo, Ede, Ila-Orangun, Oyo, Iseyin, Ikirun, Shaki, Ile-Ife, Ikire, Ejigbo, Eruwa, Okuku, Kishi, Moniya, Idi-Ayunre, Ijebu-Ijesha, Osun, Iyana-Offa, Okeho and Ilobu. Kuta, not being on the list of urban areas must be regarded as a rural area and the land in dispute is therefore land the subject of a customary right of occupancy as defined in section 50(1) of the Act”.
There has been no appeal against the decision above. I will now move to the issue of jurisdiction which has been raised by the appellants in issue 5. Learned counsel for the appellants submitted that the proper venue for proceedings in respect of lands the subject of customary Right of Occupancy is the Customary Court or Area Court. He referred to sections 39(1) and 41 of the Land Use Act, 1978 and supported his submission with the decisions by this court in the cases of Alhaji Baba Bakin Salari v. Alhaji Talle Shehu (1986) 1 NWLR (PUS) 198; (1986) All NLR 53, at page 76; and Alhaji Abubakar Sadikwu v. Alhaji Abba Dalori (1996) 5 NWLR (Pt.447) 151; (1996) 4 SCNJ 209. For ease of reference I will reproduce hereunder the provisions of sections 39(1) and 41 of the Land Use Act, 1978:
“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 Military Governor or deemed to be granted by him under this Decree; and for the purpose 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 person entitled to compensation payable for improvements on land under this Decree.
(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”.
The provisions of section 41 reads:
“41. 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 customary right of occupancy granted by a Local Government under this Decree; 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”.
It is correct, as the learned counsel has submitted, that this court had handed down decisions in which it interpreted the provisions of section 41 of the Land Use Act, 1978, as conferring original jurisdiction in proceedings in respect of Customary Right of Occupancy granted by a Local Government only to the Area Courts or Customary Courts. Those decisions were given in Salati v. Shehu (supra) and Sadiku v. Dalori (supra).
In Sadiku v. Dalori (supra) Wali J.S.C., in the lead judgment, which he wrote, affirmed a decision of the Court of Appeal, Jos Division, that the High Court had no original jurisdiction to determine a matter which concerns proceedings involving a grant of a Customary Right of Occupancy by a Local Government.
This was the view held by Karibi- Whyte, J.S.C., although obiter, in the case of Alhaji Baba Bakin Salati v. Alhaji Talle Shehu (supra) wherein he opined at page 76 thus:
“39(1) Specifically relates to “proceedings in respect of any land subject of a statutory right of occupancy granted by the Military Governor or deemed to be granted ….” On the other hand Section 41 confers jurisdiction on Area Courts or Customary Courts or Courts of equivalent jurisdiction in respect of customary right of occupancy granted by a Local Government under this Act. There is no ambiguity in the two sections that the exclusive original jurisdiction in respect of land held under statutory 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 Courts. The exercise of these jurisdiction will seem to me mutually exclusive. There is no doubt therefore that the one cannot exercise the jurisdiction of the other.”
In its judgment in the case in hand the Court of Appeal compared the provisions of sections 39(1) and 41 of the Land Use Act 1978 and concluded that in section 39(1) it had been provided expressly that the High Court had exclusive jurisdiction in respect of lands the subject of statutory right of occupancy. And in section 41 the word exclusive has been omitted. Ogundare, J.S.C., (as he then was) pointed out that it was not the function of the courts to supply in section 41 the missing word. He supported this view with the case of Board of Customs and Excise v. Barau (1982) 10 S.C. 48 at 130. The lower court went further and said that it is settled rule of interpretation that a distinct and an unequivocal legislative act would be required in order to add to or take away an already conferred jurisdiction of a Superior Court of Law. It supported this view with the cases of Seward v. Cruz (1884) 10 App. Cases 59 and Jammal Steel Structures Ltd. v. African Continental Bank Ltd. (1973) 11 S.C. 77 at 85 – 96. The learned justice of the Court of Appeal further referred to section 236 (1) of the Constitution which provides a wide and all-embracing jurisdiction of a State High Court and pointed out that unless there was anything in the Constitution limiting the extent of the State High Court’s jurisdiction he would conclude that the High Court of a State would have jurisdiction over the land in dispute in the case in hand.
The learned counsel for the appellants on his part submitted that section 6 of the Land Use Act, 1978, empowered the Local Government to grant customary right of occupancy in respect of land within its area of jurisdiction. Counsel further argued that from the wordings of sections 39(1) and 41 of the Act there are limitations to the jurisdiction of both the High Court and Area Court/Customary Court. In section 41 of the Act there is a reference to “other courts of equivalent jurisdiction”.
Customary Courts and Area Courts are not courts of equivalent jurisdiction with the High Court. Learned Counsel Mr. Bada pointed out that the Land Use Act made a radical change in the land tenure in the State. It creates two types of rights i.e. (a) Statutory Right of Occupancy and (b) Customary Right of Occupancy. These two types of rights were not in existence before the promulgation of the Act on 29th March, 1978. This Act also provides that proceedings in respect of each of these rights should commence either in the High Court or Area Court/Customary Court. It therefore, follows that any litigant who is seeking for a remedy under the Act must go to the appropriate Court. I refer my Lords to the case of Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government (1959) 3 All E.R. 1 or (1960) A.C. 260 at 302.
I have looked into the provisions of S. 41 of the Land Use Act, 1978, and, in my respectful view, I will interpret it in the same way as my learned brothers, Karibi-Whyte, J.S.C., and Wali, J.S.C., had done. The word “exclusive” which the lower court pointed out to have been omitted in Section 41 of the Land Use Act, 1978, could not fit into the definition of the provisions of the section. The rule of interpretation is that the Act must be read as a whole in order to understand its ordinary meaning. See the Australian case of Metropolitan Gas Company v. The Federated Gas Employees Industrial Union (1924) 35 CLR 449. In an English case of Corkery v. Carpenter (1951) 1 K.B. 102 it was held:
“It is often tempting to look only at the section that seems immediately applicable to the problem in hand. But this is as likely to lead to a misconception of the total effect of the provision as is the reading of a passage of a novel out of its con. Likewise, a word of indefinite meaning may well include certain things when used in one Act, but have its scope limited in the con of another. So the word “carriage” was held from the con in which it appeared in the Licensing Act 1872 (UK) and the Highways Act 1835 (UK) to include a bicycle but did not have this meaning when used in a Turnpike Act”.
Coming back to the case in hand, it is important to refer to the opening words of section 41 of the Act. It reads:
“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 customary right of occupancy ”
This means that a number of courts in the state with equivalent jurisdiction with Area Court and Customary court could exercise jurisdiction in proceedings in respect of Customary Right of Occupancy. The word “exclusive” has been defined in Webster’s New Twentieth Century Dictionary thus: “Excluding all others, shutting out other considerations, not shared or divided; sole; single; as an exclusive right”. Since the jurisdiction to determine proceedings in respect of Customary Right of Occupancy is shared between Area Courts, Customary Courts or other courts of equivalent jurisdiction, the word “exclusive” cannot fit into the provisions of section 41 of the Land Use Act, 1978.
If we apply the “ejusdem generis” canon of statutory construction where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated. See Campbell v. Board of Dental Examiners 53, California Appellate Reports 3d 283. Following this canon of construction of statutes, it is my view, that only courts of equivalent jurisdiction with the area court or customary court shall have original jurisdiction in respect of any land the subject of a Customary Right of Occupancy granted by a Local Government. This of course is subject to the existence of such courts in the State concerned. In this appeal the issue of a court of equivalent jurisdiction does not, in fact, arise because there is a Customary Court in Iwo East Local Government Osun State, where this appeal emanated.
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. In his contribution to the case of Salati v. Shehu (supra) UWAIS, J.S.C., (as he then was) held as follows:
“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”.
It is relevant to observe that the jurisdiction of Area Courts which was considered in the cases of Salati v. Shehu (supra) and Sadikwu v. Dalori (supra) is similar to the jurisdiction of Customary Courts in land matters in Iwo East Local Government Area, now in Osun State. See Customary Court Law, Cap. 33 Laws of Oyo State, 1978. Prior to the enactment of the Land Use Act, in 1978, both High Courts and the Customary Courts in Oyo State had unlimited jurisdiction in land matters. The Customary Courts were however made to apply the customary law of the place where the land was situated. There was then no classification of land holdings as has now been done in the Land Use Act 1978. The present classification has assigned jurisdiction to a hierarchy of courts based on the location of the land the subject matter in dispute. It seems to me that as development reaches the rural areas the State Governor would invoke the power given to him under section 3 of the Land Use Act, 1978, and declare the area an urban area. Once that is done all land cases in the area declared urban shall be the exclusive jurisdiction of the High Court. Until such a declaration is made all disputes relating to land the subject of a customary right of occupancy granted by a Local Government shall originally be determined only by an Area Court or Customary court where such courts are available. As I mentioned above, a Customary Court is available in Iwo East Local Government Area, Osun State. Therefore under the provisions of section 41 of the Land Use Act the High Court of Osun State has no original jurisdiction in proceedings in respect of Customary Right of Occupancy granted by a Local Government in that State. The matter may reach the High Court on appeal.
Finally, I am bound to follow Sadikwu v. Dalori (supra) and in addition to my opinion above, I agree that the High Court of Oshogbo now in Osun State has no original jurisdiction in proceedings in respect of any land the subject of customary right of occupancy granted by a Local Government. This appeal therefore succeeds on the issue of jurisdiction only. It is allowed. The judgments of both the trial High Court and the Court of Appeal are hereby set aside. The action filed by the respondents in Oshogbo High Court is hereby struck out. The appellants are awarded N1,000.00 costs in this appeal and N750.00 costs in the High Court.
SC.27/1990
