Alhaji Karimu Adisa Vs Emmanuel Oyinwola & Ors- (2000)

LAWGLOBAL HUB Lead Judgment Report

O. AYOOLA

This is an appeal from the decision of the Court of Appeal (Akanbi, Kutigi, JJ.C.A (as they then were) and Omololu-Thomas, JCA). That court dismissed an appeal from the decision of the High Court of Oyo State (Okeyode Adesina, J) whereby judgment was entered against the defendant. The original plaintiff was one Alhaji Jimoh Akano, described as the Ikolaba of lgbetti, who claimed as representative of the Ikolaba family against the defendant, in his personal capacity, a declaration of customary right of occupancy to a piece of land described as ‘land of Ikolaba of Igbetti’, situate at Kishi in Oyo State, damages for trespass and injunction. Adesina, J., on 2nd July, 1985 entered judgment for the plaintiff, granted the declaration sought, awarded damages against the defendant for trespass and restrained him from committing further acts of trespass on the land. The defendant’s appeal to the Court of Appeal was dismissed on 21st June, 1988.

The original plaintiff having died sometime in September 1985, four persons were substituted as plaintiffs ‘for themselves and as representatives of Ikolaba Chieftaincy family’. For convenience, the appellant, and the respondents, who were, respectively, appellants and respondents in the court below, are referred to in this judgment, respectively, as ‘the defendant’ and ‘the plaintiffs’.

This appeal and judgment are in two parts. The first deals with the question of the jurisdiction of the High Court and, the second with the question of the merits of the case. Evidently, the second question arises only if the High Court was properly seised of the suit in the first place. Since the jurisdictional issue is a threshold issue, it is expedient that it be disposed of first. A narration of the facts of the case as they relate to the merits of the case is postponed till later in the judgment.-

The defendant, by the appellant’s brief, raised the jurisdictional question thus:

“Whether the Court below was not in error in failing to see that the trial court lacks jurisdiction over claims as formulated by the Plaintiff having regard to the provisions of the Land Use Act particularly Sections 39 and 41 thereof.”

The issue was raised neither in the High Court nor in the Court of Appeal. However, that notwithstanding, it is an issue which has been properly raised in this appeal. It is right to observe that had the issue been raised in those two courts, they, bound by decisions of this court, would have held, rightly, that the High Court had no jurisdiction. In one or two cases which will be presently considered, this court decided that exclusive jurisdiction to try proceedings in respect of customary rights of occupancy is vested pursuant to section 41 of the Land Use Act (Capt. 202: Laws of the Federation, 1990) (“the Act”) in the area court, customary courts or courts of equivalent jurisdiction in a state. Since the question has arisen in this case whether this court should depart from those decisions, counsel, drawn in such a manner as to reflect a wide range of opinion, have been invited to address the court on this issue as amici curiae. It is right, at the outset, to acknowledge and put on record the learning and industry that the amici curiae have demonstrated in the amici curiae briefs which have been of much assistance in the determination of this issue.

The jurisdictional issue arose because the plaintiffs have sought in the High Court of Oyo State a declaration of customary right of occupancy pursuant to the Act. The object of the Act was, as contained in the preamble:

“to vest all land comprised in the territory of each State (except land vested in the Federal Government or its agencies) solely in the Governor of the State, who would hold such land in trust for the people and would henceforth be responsible for allocation of land in all urban areas to individuals resident in the State and to organisations for residential, agricultural, commercial and other purposes while similar powers with respect to non-urban areas are conferred on Local Governments”

Section 2 of the Act provides that from the commencement of the Act “all lands in urban areas shall be under the control and management of the Governor of each State” while “all other land shall, subject to this Act, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated.” “Urban area” is such area of the State as may be so designated by the Governor pursuant to section 3 of the Act.

The power to grant statutory right of occupancy to any person for all purposes, whether in an urban area or not, is by section 5(1)(a) of the Act vested in the Governor, while by virtue of section 6(1) of the Act, the Local Government is granted power to grant customary rights of occupancy in respect of land not in an urban area. It is thus clear that the power to grant customary rights of occupancy is exclusively that of the Local Government. By virtue of section 51(1) of the Act “statutory right of occupancy” is defined in terms of grant. However, “customary right of occupancy” was defined, not solely in terms of grant, but as “the right of a person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a Local Government under this Act.”

By virtue of the transitional provisions made in sections 34(2) and 36(2) of the Act the rights of owners of land prior to the commencement of the Act were recognised and protected to such extent as was specified in the Act.

It is against the background of the scheme and purpose of the Act as summarised above that the jurisdictional issue has been raised. Part VII of the Act deals with “Jurisdiction of the High Courts and Other Courts”. The relevant sections for the purpose of this appeal are sections 39 and 41. Section 39 of the Act provides as follows:

“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 Governor or deemed to be granted by him under this Act, and for the purposes of this paragraph, proceedings include proceedings for a declaration of title to a statutory right of occupancy.

(b) Proceedings to determine any question as to any person entitled to compensation payable for improvements on land under this 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 modification as would enable effect to be given to the provisions of this section.”

Section 41 of the Act provides that:

“An area court or a customary court or other court of equivalent jurisdiction in a state shall have jurisdiction in respect of proceedings in respect of a customary right of occupancy granted by a Local Government under this Act; and for the purpose of this paragraph proceedings include 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 was argued in the appellant’s brief of argument that having regard to the provisions of the Act just quoted and some previous decisions of this court, the court below should have seen, as the trial judge also ought to have seen, that the High Court had no jurisdiction to entertain the action. The previous decisions on which reliance was placed were: Salati v. Shehu (1986) All NLR 53, 76; Sadikwu v. Dalori (1996) 4 SCNJ 20; (1996) 5 NWLR (Part 447) 151; and, Oyeniran & Ors. v. Egbetola & Anor (1997) 5 SCNJ 94; (1997) 5 NWLR (Part 504) 122. Dr. Kayode-Adedeji, Attorney General of Osun State, who appeared amicus curiae, supported these submissions.

For their part, the plaintiffs by their respondents’ brief of argument, argued that “the High Court, the area and customary courts have unfettered concurrent jurisdiction to entertain proceedings dealing with a customary right of occupancy under section 41 of the Land Use Act, 1978.” It was submitted that if it were the intention of the legislator that only area courts or customary courts should have original jurisdiction in respect of customary right of occupancy, the legislators would have clearly said so by the inclusion of the word “exclusive” in section 41 as it did in section 39. To hold otherwise, it was submitted, would be to import into that section what was clearly not the intention of the legislator. It was argued that to interpret section 41 as granting exclusive jurisdiction to the court mentioned in that section would curtail the “unlimited jurisdiction” granted to the High Court of a State by section 236(1) of the 1979 Constitution and that any such construction would render section 41 void by reason of inconsistency with the said provisions of the 1979 Constitution. Finally, learned counsel for the plaintiffs urged this court to review and over-rule the three decisions relied on by the defendant as they were given “oblivious of the provisions of section 236(1) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Decree No. 107 of 1993.

The position taken by the learned counsel for the plaintiffs found ample support in the well researched and helpful submissions of Mr. Kanu G. Agabi, SAN, Attorney-General of the Federation, Mr. Kehinde Sofola, SAN, Mr. Clement Akpamgbo, SAN, Mr. Abdullahi Ibrahim, SAN, and Mr. Awa Kalu, Attorney-General of Abia State who all appeared on the invitation of the court as amici curiae. Since there is considerable unanimity in their submissions which cover substantially the same grounds, what can be regarded as the common ground in the submissions can be stated without diminishing from the weight and cogency of individual submissions.

The submissions went thus: first, since section 41 omitted the word ‘exclusive’ to qualify the jurisdiction granted to the courts mentioned in that section, the intention of the legislator was not to confer exclusive jurisdiction on those court; secondly, the opinion expressed by Karibi-Whyte, JSC, in Salati v. Shehu (supra) that the jurisdiction of the High Court and area courts and customary courts under the Act are mutually exclusive having been given obiter, should not have been relied on in Sadikwu v. Dalori (supra); thirdly, had this court considered the effect of section 236(1) of the 1979 Constitution, section 41 would have been differently interpreted; fourthly, the Act was not an integral part of the 1979 Constitution, therefore such of its provisions that are inconsistent with the provisions of the Constitution are void to the extent of such inconsistency; fifthly, the unlimited jurisdiction which the High Court of the State had before the commencement of the Act cannot be taken away by implication, and the court should approach the question of the jurisdiction of the High Court on the footing that it exists to determine any suit whatsoever except what is expressly excluded. Both Mr. Akpamgbo and Mr. Kalu criticised those opinions which had tended to make the jurisdiction of the High Court conditional on the existence or absence of an area court or a customary court in the area where the land is situate.

For his part, Chief Kola Babalola, learned counsel in a pending appeal in which similar jurisdictional issue has been raised, argued that the jurisdiction of the High Court depended on whether the suit is in respect of ‘granted’ customary right of occupancy or right of occupancy which had not been granted but can be taken as having become vested in terms of section 36(2) of the Act. He buttressed his argument by a comparison of the wording of section 39(1) where the jurisdiction of the High Court was specifically mentioned to include disputes concerning ‘deemed’ statutory rights of occupancy and the omission of such ‘deemed’ customary rights of occupancy in defining the jurisdiction conferred on area and customary courts in section 41. In his submission, where the dispute relates to a granted customary right of occupancy the area court or customary court has exclusive jurisdiction.

The question in Salati v. Shehu (supra) was whether a Muslim Area Court had jurisdiction to try proceedings in respect of land subject of a statutory right of occupancy. This court (Eso, Nnamani, Uwa, (now CJN), Karibi-Whyte and Kawu, JJ.S.C.) came to a unanimous decision that the Muslim Area Court had no such jurisdiction. Uwais, JSC, (as he then was( who considered the matter in some detail in the con of the Land Tenure Law applicable in the Northern states and the Act, had this to say (at [1986)] 1 NSCC 144):

“What emerges therefore is that the jurisdiction now exercisable by Area Courts in land matters is limited to disputes related to such land, the right of occupancy of which is a customary right of occupancy.”

There was no issue in the case as to the power of the High Court to exercise jurisdiction in respect of proceedings concerning a customary right of occupancy. However, Karibi-Whyte, JSC, having dealt with the issue in the case, and after referring to sections 39(1) and 41 of the Act proffered the opinion (at page 150) as follows:

“There is no ambiguity in the two sections that the exclusive 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 Court.”

So far, no one can raise any objection to this statement. But, then, the opinion was further expressed by the learned Justice, that:

“The exercise of these jurisdictions will seem to me mutually exclusive. There is no doubt therefore that one cannot exercise the jurisdiction of the other.”

Needlessly, much problem has been engendered by this opinion which was evidently made obiter and is consequently not binding. Although reference was made to the opinion in Sadikwu v. Dalori (supra) in the leading judgment of this court delivered by Wali, JSC, it is clear that he fell short of endorsing the obiter dictum of Karibi-Whyte, JSC.

The question in Sadikwu v. Dalori (supra) was whether the High Court of Borno State had jurisdiction in proceedings in respect of land not designated urban land. This court (Uwais, CJN, Wali, Kutigi, Ogwuegbu, and Mohammed, JJSC) in a unanimous decision upholding the decision of the Court of Appeal, held that the High Court had no jurisdiction. We are now urged to depart from that decision. Sadikwu v. Dalori originated from an action commenced in the High Court of Borno State on July 19, 1979, that is, before the commencement, in October, 1979, of the 1979 Constitution.

Where the question arises as to the jurisdiction of the High Court, it is essential to examine the laws defining the jurisdiction of the High Court both at the time the action was instituted and up to the time judgment was given. Authority for the view that so long as a court acquires jurisdiction before delivering judgment, its decision cannot be attacked on the ground of want of jurisdiction, is Adani v. Igwe (1957) NSCC 84″.

In Sadikwu v. Dalori (supra), the relevant Laws at the time when the action was commenced were the Act, the Land Tenure Law (Cap 41 Laws of Northern Nigeria, 1963) applicable to Borno State, and the High Court Law (Cap 49 Laws of Northern Nigeria). By the time the judgment was given in the High Court, the 1979 Constitution had come into force. This should have raised the question, not pursued on this appeal, whether that Constitution should not have been taken into consideration when the question of the jurisdiction of the High Court came to be considered both in the Court of Appeal and in this court.

Section 41(1)(a) of the Land Tenure Law provided that:

“The High Court shall have exclusive jurisdiction in

(a) proceedings in which the right of the Governor or the Minister to grant a statutory right over any land is in dispute.”

Section 41(2)(a) of the same Law provided that:

(a) proceedings in respect of any land the subject of a statutory right of occupancy granted by “a native authority or of a customary right of occupancy where all parties are subject to the jurisdiction of native courts, subject nevertheless to the provisions of paragraph (b) of subsection (3) ……”

Subsection 3 referred to, provided, in effect, that the High Court shall have jurisdiction in proceedings in respect of any land the subject of a statutory right of occupancy granted by a native authority or of a customary right of occupancy where one or more of the parties are not subject to the jurisdiction of native court and when there is no native court of competent jurisdiction available to try the proceedings.

Section 17(1) of the High Court law (Northern Nigeria) provided that:

“Subject to the provisions of the Land Tenure Law and any other written law the High Court shall not exercise original jurisdiction in any suit or matter which –

(a) raises any issue as to the title to land or as to the title to any interest in land which is subject to the jurisdiction of a native court.”

The effect of section 17(1) of the High Court Law (Northern Nigeria) was to curtail, in express terms, prior to the coming into force of the 1979 Constitution, the jurisdiction of the High Court in matters concerning title to land and customary rights of occupancy.

A statement in the leading judgment in Sadikwu v. Dalori (supra) may lead to an erroneous impression that it was held in that case that section 41 of the Act restricted the jurisdiction of the High Court just as section 17(1) of the High Court Law (Northern Nigeria) did. Wali, JSC, said at page 163:

“In my view S. 17(1) of the High Court Law of Northern Nigeria applicable to Borno State goes to support S. 41 of the Land Use Act, 1978 and S. 41 (2) (a) of the Land Tenure Law.”

I am not persuaded that it suggested by this passage that section 41 of the Act vested exclusive jurisdiction in the Area Court. All that the statement was intended to convey, in the light of what had been discussed in the judgment, was that to define the jurisdiction of the High Court of the State to which the High Court Law referred to applied, the provisions of the three statutes should be read together. It is to be noted that section 41 of the Act does not by itself deal with the jurisdiction of the High Court.

Should we overrule Sadikwu v. Dalori (supra) as we were invited to do A previous decision is not to be departed from, or even followed, where the facts or the law applicable in that previous case are distinguishable from those in the later case. Where relevant statute laws have changed since the previous decisions, what is called for is “distinguishing” rather than “departure”. The doctrine of stare decisis is based, first and foremost, on the relevant likeness between two cases – the previous case and the one before the court. Where there is no relevant likeness between the two, it is an idle exercise to consider whether the previous one should be followed or departed from. In this case, a significant difference between the present case and the Sadikwu case is that the scope of jurisdiction of the High Court of the States has changed since the action in Sadikwu v. Dalori (supra) was instituted. Besides, the Laws applicable for the determination of the jurisdiction of the High Court in Sadikwu are not the same as are applicable in this case.

The submission that Sadikwu v. Dalori was wrongly decided is, in my view, correct if the provisions of the 1979 Constitution should have been taken into consideration in determining the jurisdiction of the High Court in that case. Although the action in Sadikwu v. Dalori was commenced before the promulgation of the 1979 Constitution, judgment of the High Court was not given until after October, 1979 when the Constitution had already come into force. By that date, whatever restriction there may have been on the jurisdiction of the High Courts in States to which the Land Tenure Law and the High Court Law of the former Northern Nigeria applied, had been removed by the provisions of section 236(1) of the Constitution. However, that point has not been taken on this appeal. I am content to leave the decision whether or not Sadikwu v. Dalori (supra) should be departed from till such time as a case arises touching on the jurisdiction of the High Court in a state in which the Land Tenure Law and the High Court Law of Northern Nigeria, or similar enactment, were applicable. It is sufficient to say, for the moment and for the purpose of the case in hand, that there is nothing decided in Sadikwu v. Dalori that is authority on which to rely to determine the question which has arisen in this case of the jurisdiction of the High Court of Oyo State.

However, the case of Oyeniran v. Egbetola (supra) is in a different category. In that case, sometime in 1982, or so it would appear, the plaintiffs sued the defendants in the High Court of Oyo State claiming a declaration that they “by customary occupation are entitled to the customary right of occupancy” of a farmland, damages for trespass and injunction. The High Court granted all the reliefs sought. The defendants, for the first time on their appeal to the Court of Appeal questioned the jurisdiction of the High Court to try the action. They contended that by virtue of sections 39 and 41 of the Act, the High Court lacked jurisdiction to try the action. The Court of Appeal rejected the contention, they being of the view that since the word ‘exclusive’ had been omitted in section 41 of the Act it would be wrong for them to supply the missing word and that section 236 of the 1979 Constitution had granted unlimited jurisdiction to the High Court of a State. In the event, they dismissed the appeal. The same question was raised on the further appeal to this court. This court (Wali, Kutigi, Ogwuegbu, Mohammed and Onu, JJSC.) allowed the appeal and struck out the suit on the ground that the High Court had no jurisdiction to try the proceedings.

It has been argued on this appeal that we should depart from the decision of this court in that case. But, first, let me summarise the reasoning by which this court came to the decision. Mohammed, JSC, who delivered the leading judgment recognised that the view held by Karibi-Whyte in Salati v. Shehu (supra) was obiter, but, nevertheless he was prepared to be persuaded by that view. He held that Wali, JSC, had in Sadikwu v. Dalori (supra), interpreted section 41 of the Act as conferring exclusive jurisdiction on the area court and that he was bound by that decision.

However, he seemed to have resorted to construction by implication when he said at page 132 of the law reports:

“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,”

He drew support for this view from the view expressed by Uwais, JSC (as he then was) in Salati v. Shehu (1986) 1 NWLR (Pt. 15) 198 where the following statement was made:

“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.”

Although this statement had tended to suggest mutually exclusive jurisdictions of the High Court on the one part, and the area and customary courts, on the other, it, like the opinion of Karibi-Whyte, JSC, in the same case, was obiter. Nevertheless, the opinion of Mohammed, JSC, stated above is of sufficient importance in the debate as to merit close attention and should not be glossed over.

Wali, JSC, agreed with the reasoning and conclusion of Mohammed, JSC. However, Kutigi, JSC, it would appear, allowed the appeal for reasons other than those stated by Mohammed, JSC. Kutigi, JSC, held that the decision in Sadikwu v. Dalori (supra) applied only where a High Court and an Area Court or a Customary Court existed side by side. His view was that where that is the situation, “the High Court would have no jurisdiction in respect of proceedings for a declaration of title to a customary right of occupancy except an area or customary court.” Where area courts and customary courts do not exist, in his view, the High Court would have jurisdiction in such matters as a court of equivalent jurisdiction. Ogwuegbu, JSC, allowed the appeal, apparently, because he felt bound by the decision in Sadikwu v. Dalori (supra). He being of the view that this court in Sadikwu v. Dalori (supra) had adopted the opinion expressed obiter by Karibi-Whyte, JSC, in Salati v. Shehu (supra) was of the opinion that it needed legislative intervention to restore “the concurrent jurisdiction that existed before the 1978 Act.” Onu, JSC, while acknowledging that the Land Tenure Law had no relevance to the case, relied on section 19 of the High Court Law of Oyo State which gave appellate jurisdiction to the High Court from decisions of the customary court, and held that original jurisdiction was not vested in the High Court. It is evident that the reasons why this court held that the High Court has no jurisdiction in the matter were diverse and, somewhat diffused. That by itself may not be sufficient reason for departing from the decision. However, there seems to be uncertainty as to what that case actually decided. In an opinion given by Kutigi, JSC, albeit iter, in Odigie v. Obiyan (1997) 10 NWLR (Pt. 524) 179, 197, it was stated that this court held in the case that “under section 41 of the Land Use Act, the High Court of a state has no jurisdiction in proceedings in respect of land situate in a rural area except the customary court or Area courts. It also held that in a place where there is no Area or Customary Court, the High Court would have jurisdiction in such situation and not otherwise.” To ascertain the exact principle on which this court acted in the case may prove an elusive exercise. Be that as it may, I recur to the main question: Should this court continue to be bound by this solitary decision

In the recent case of Okulate v. Awosanya (2000) 2 NWLR (Part 646) 530 this court restated the principle that it is entitled to depart or overrule its previous decision in an appropriate situation when invited to do so. It set out the situations in which it would do so, as decided by this court in a host of cases. In the earlier case of Odi & Anor v. Osafile & Ors. (1985) 1 NSCC 14, this court considered extensively its attitude to the question of overruling or departing from its previous decisions drawing, largely, from the practice in other common law jurisdictions and having regards to the status of this court as the successor to the Privy Council as the final court of appeal. The principle that emerged at the end of the reflective, analytical and comparative exercise is that this court has jurisdiction to overrule or depart from its previous decisions. Obaseki, JSC, who delivered the leading judgment in that appeal said (at p. 29)”.

“The sovereign powers of the State which are shared among the three arms of Government – the Executive, the Legislature and the Judiciary – by the Nigerian Constitution 1979 as amended enabled such corrective processes in the interest and the good of all persons in and all citizens of Nigeria. Thus the Judicial Committee of the Council has, in its advisory capacity to the Sovereign of the British Empire since the 19th century, given repeated expression to the fact that it will not be bound by the erroneous previous decisions of the court and that for good and compelling reasons it will depart from such decisions and overrule them in the interest of justice and the law. These decisions must be clearly shown to be (1) vehicles of injustice or (2) given per incuriam or (3) clearly erroneous in law.”

Although an examination of the law reports reveals how in each case where the court had been invited to overrule or depart from its previous decision, the court had reacted to such invitation, care must be taken not to trammel the attitude of the court by rigid guidelines. It is to be accepted that this court as the final appeal court should be trusted to know when it appears right to overrule or depart from its previous decision. For my part, I find the opinion of Bello, JSC, in Odi & Anor. v. Osafile & Anor. (supra) apt when after setting out the guidelines deduced from the authorities thus: (at p. 41).

“….the attitude of this court on the issue may be stated thus: that the Court will not adhere to the rule of stare decisis but will depart from its previous decision if such decision is inconsistent with the provisions of the Constitution or if it is erroneously reached per incuriam and will, if followed, perpetuate hardship and considerable injustice or it will cause temporary disturbance of rights acquired under it or will continue to fetter the exercise of judicial discretion of a court.”

he went on to say:

“It may be emphasised that the Court has not laid down a hard and fast rule exhausting the area within which to warrant a departure from a previous decision. Each case must be decided on its special facts and circumstances with a view to avoiding perpetuating injustice which, in my view, is the paramount determinant factor in this respect.

(Emphasis mine)

The question has sometimes arisen: Should this court depart from its previous decision just because after listening to more qualitative and persuasive argument it becomes convinced that the previous decision was erroneous In one form or the other the question has arisen in the present case. Counsel for the defendant has argued that all the plaintiffs have done was to present the same arguments as were advanced in the previous case, perhaps this time with the weight of learned friends of the court to their advantage. While it is easy to handle decisions which were given per incuriam in the sense that there had been ignorance or omission to make use of relevant statute or they were made contrary to provisions of such statutes, probably, out of inadvertence, the same cannot be said of a decision which the court has been invited to depart from because a more persuasive and cogent argument had been advanced by counsel. In such a case, the prevailing attitude, it would appear, is that the court will not depart from its previous decision merely because of superior argument. That much was said by Eso, JSC in Odi & anor. v. Osafile & anor (supra) when he said at p. 43.

“To decide whether the previous decision had been erroneous, what is it that impels the Supreme Court to reconsider its view I have found the authorities to which Chief Gani Fawehinmi referred us very useful in connection with this. Is the Supreme Court to listen to re-argument of the case, though with more authorities on the points If the points canvassed in the second proceedings are merely points that had earlier been canvassed and all that is being done is to put in more emphasis, by way of more authorities on those points, it is my considered view that that would not amount to a case the Supreme Court should reconsider its view.”

Eso, JSC, suggested a ‘fresh element’ test and I agree with him.

In this case there are compelling reasons why the decision in Oyeniran v. Egbetola should be overruled and departed from. First, the decision was given without regard to section 236(1) of the 1979 Constitution. Secondly, it was given in reliance on the decision in Sadikwu v. Dalori (supra) whereas that decision, as has been discussed earlier in this judgment, was based upon Northern Nigerian laws which were not relevant for the determination of the ambit of the jurisdiction of the High Court of Oyo State. Those Northern Nigeria Laws were not the same as the laws applicable in Oyo State. Thus, while, for instance section 17(1) of the High Court Law of Northern Nigeria which was applied in Sadikwu v. Dalori (supra) expressly, excluded the jurisdiction of the High Court in respect of land matters subject to the provisions of the land Tenure Law, that was not the position in Oyo State .

Before the promulgation of the 1979 Constitution, High Courts both in the Northern as well as in the Southern States were regarded as courts of unlimited jurisdiction by virtue of their status as superior courts of record. In Olaniyi v. Aroyewun (1991) 5 NWLR (Part 194) 652, Bello CJN, said:

“Prima facie the High Court, being a Superior Court of Record, was a court of unlimited jurisdiction….”

I suppose that the jurisdiction is described as unlimited only because it is presumed to exist in any case unless it is expressly curtailed by statute, as has been done in several regional or state laws before the promulgation of the 1979 Constitution.

The coming into force of the 1979 Constitution had a considerable impact on the jurisdiction of the High Courts of the States. While prior to that Constitution there was no express vesting of judicial powers in the judicature and the jurisdiction of the High Courts of the States was to be found in state legislation which tended to vary from state to state, a change was effected by section 236(1) of the 1979 Constitution which provided as follows:

“Subject to the provisions of the 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 proceeding in which the existence or non-existence 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.”

The provisions of section 236(1) of the 1979 Constitution did not permit the ‘unlimited’ jurisdiction vested in the High Court of a State to be limited other than as the Constitution itself may have provided. That was said by this court in the recent case of Okulate v. Awosanya (supra) in consonance with similar views expressed in Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296, and Savannah Bank of Nigeria Ltd. v. Pan Shipping & Transport Agencies Ltd. (1987) 1 NWLR (Part 96) 212. The answer to the question whether the jurisdiction of the High Court of a State is curtailed after the 1979 Constitution had come into effect is, therefore, not to be found in State legislation but, solely, in the Constitution itself.

The question is: Did section 41 curtail the unlimited jurisdiction of the High Court prescribed by section 236(1) of the 1979 Constitution even assuming, without deciding, that the provisions of the Act were capable of doing so Were the Act merely to have effect as a Federal enactment as section 274(6) of the Constitution provided, it was incapable of curtailing the jurisdiction conferred by section 236(1), since, by virtue of section 1(3) of the Constitution, any other law inconsistent with the provisions of the Constitution is void to the extent of such inconsistency. However, the Act is not just a ‘Federal enactment’ but one which has been given a special status by section 274(5) of the Constitution which provided that its provisions shall “apply and have full effect in accordance with their tenor and to the like effect as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of section 9(2) of this Constitution. “I am not unaware of the pronouncements of this court on section 274(5) in several cases, such, for instance, as Nkwocha v. Governor of Anambra State (1984) 6 SC 362. Were the matter not subject to authority, I would have thought that section 274(5) has incorporated by reference the provisions of the Act into the Constitution. Happily, I do not have to decide the issue because, in my opinion, what is decisive of the jurisdictional issue in this case is whether, as a matter of construction, there is anything in section 41 of the Act that curtailed the jurisdiction of the High Court.

It is evident that whereas section 39 of the Act expressly excluded courts other than the High Court from exercising jurisdiction in matters specified therein, no such exclusion was expressed in section 41 of the Act. It must be emphasised that the enquiry is not whether the High Court derived its jurisdiction in proceedings mentioned in section 41 from that section or the Act itself, but whether the provisions of section 41 excluded the jurisdiction of the High Court. There being no such express exclusion of jurisdiction in section 41, the proponents of exclusive jurisdiction of the area court or the customary court can only succeed in their proposition if a resort to construction by implication is capable of producing such result.

The law is clear that resort to construction by implication is permissible only if the meaning of statute is not clear. The principle is stated in Craies on Statute Law, 7th Edition, at page 109, thus:

“If the meaning of a statute is not plain, it is permissible in certain cases to have recourse to a construction by implication, and to draw inference and supply omissions.”

The literal meaning of a section of a statute may be clear, but there may be a degree of obscurity and ambiguity in the effect of the statute occasioned by the inclusions of the provisions of the section in the statute. It is in this wise that in considering a statute one may not limit oneself to literal clarity of a section in determining whether or not there is an ambiguity in the statute.

For my part, although in literal terms there may not be an ambiguity in the provisions of section 41 of the Act, I cannot say with certainty that the inclusion of the section in the Act has not created some ambiguity as to the jurisdiction of the High Court in proceedings relating to customary rights of occupancy. Were that not so, the divergent views expressed hitherto in several decisions of this court, and of the Court of Appeal, in regard to the effect of the Act on the jurisdiction of the High Court, would not have emerged.

I therefore approach the question of interpretation of the Act on the footing that recourse may be had to construction by implication. The principle of construction of statutes is now well established. The law presumes against construing statute so as to oust or restrict the jurisdiction of a superior court of record unless there is explicit expression to that effect in the legislation. In Shodeinde v. The Registered Trustee of Ahamaddiya Movement in Islam (1980) 1-2 SC. 225, 229, Aniagolu, JSC, said:

“….it is the recognised general law that, prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior tribunal, unless on the face of the proceedings, it is expressly shown that the particular matter is within the cognisance of the court.”

There is no need to multiply dicta and quotations which all go to show that an authority to deprive the High Court of its jurisdiction is not to be presumed without express words. That principle of construction, well established in general law, takes on a stronger form when, as in this case, it is only the Constitution itself that can curtail the unlimited jurisdiction of the High Court which it had granted. To construe, by implication, one section of the Constitution as restricting the plenitude of jurisdiction granted to the High Court in another section, the implication must not only be explicit, but also necessary. It can only be necessary if both cannot co-exist without creating an absurdity or a situation in which the two provisions become unworkable.

Having proceeded thus far on an assumption that the provisions of the Act have been incorporated into the Constitution, I hasten to add that, without that assumption, the matter in hand could be easily disposed of since the provisions of an enactment in conflict with Constitution are void. Where, there had been express provisions in an enactment such would be void for inconsistency with the Constitution, it will be an absurd and futile exercise to proceed to read into that enactment, by implication, such provisions as would have been void were they to have been expressly stated.

The purpose which sections 39 and 41 of the Act are designed to serve is clear. Section 39 excludes area courts and customary courts from exercising jurisdiction in respect of land the subject of a statutory right of occupancy. Unlike under the Land Tenure Law system, under the Act statutory right of occupancy can now only be granted by the Governor of a State. Section 41 redefines the jurisdiction of the courts referred to therein so as to ensure that courts, such as the customary courts in southern parts of the 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. When properly viewed, the two sections do not limit the jurisdiction of the High Court.

Contrary to the submission of Dr. Adedeji-Kayode, the Attorney-General of Osun State, that there is an absurdity in the notion that the area court and the customary court and the High Court would have concurrent jurisdiction, I fail to see an absurdity in a system which had operated without hitch in several parts of the south of the country before the introduction of the Act. It appears to me a sensible thing to do, to preserve the choice of forum which a litigant had always enjoyed to choose his forum in respect of non-urban land which may not necessarily be of little value and disputes about which may raise, sometimes, questions of considerable complexity.

It is, in my opinion, expedient to deal with a passage in the judgment of Mohammed JSC which I have quoted earlier in this judgment. There, as I understand it, it was implied that the Act created a new tenure and therefore a new right which justified a mutually exclusive division of jurisdiction between the High Court, on the one hand, and the courts mentioned in section 41 of the Act, on the other. That appears to be a proposition in line with the principle in the old case of Barraclough v. Brown (1897) AC 615 in which the question raised was whether an action for a declaration of right would lie on a statute which gave a new right to recover certain expenses in a court of summary jurisdiction from persons not otherwise liable. Holding such action not to lie Lord Watson in a passage much often quoted said:

“The right and the remedy are given uno flatu, and one cannot be dissociated from the other. By these words the legislature has, in my opinion, committed to the summary court exclusive jurisdiction, not merely to assess the amount of expenses to be repaid to the undertaker, but to determine by whom the amount is payable, and has therefore by plain implication enacted that no other court has any authority to entertain or decide these matters.”

Although the Act, created rights of occupancy that may be regarded as new tenures in land, it did not completely wipe away all incidents and relationships that existed, or is capable of existing, in dealings with land. It is clear that rights and interests in land previously vested in persons and occupancy of land under customary tenure, continue to play prominent roles as the transitional provisions and the definition of customary right of occupancy in the Act show. The Act by creating rights of occupancy, in substance, described rights and interests in land in new terms. In my opinion, it does not introduce a completely novel concept of rights and interest in and over land into the jurisprudence of our land law, owing its incidents and origins exclusively to statute. The rights created by the Act are not of the same character as those rights to which the principle in Barraclough’s case applied. Besides, the ambit of section 236(1) of the Constitution is so wide, and should be so liberally construed, that there is not much room any more for the application of the principle in Barraclough’s case to cases where, notwithstanding that the rights litigated on have been created by statute, they are, nevertheless, legal rights. Rights of occupancy are legal rights notwithstanding that they are created by statute.

It is expedient at this stage to dispose of the submission by Chief Kola Babalola. His submission bears repetition. In substance, it is that the High Court has jurisdiction to try proceedings in respect of customary rights of occupancy other than such rights granted by the Local Government. For this submission he relied on the literal of section 41 of the Act in which, according to him, the jurisdiction granted to the courts therein mentioned were by reference only to customary right of occupancy granted by a Local Government. In his submission the absence of any mention of other customary right of occupancy is significant, and leads to the conclusion that the High Court would have jurisdiction to try proceedings in respect of such other customary right of occupancy.

Attractive as this submission may appear to be at the first blush, it breaks down when closely considered. It shares with the argument of those who would read exclusivity into section 41 of the Act, the defect that nothing in that section expressly excludes the jurisdiction of the High Court, either totally or partially. Besides the submission fails to explain the source of the jurisdiction which it claims for the High Court in respect of proceedings in respect of customary rights of occupancy not granted but which existed as a fact. One more reason why the argument must fail is that proceedings in section 41 of the Act have been stated to include “proceedings for a declaration of title to a customary right of occupancy”. Such would include proceedings relating to customary rights of occupancy other than one granted by the Local Government. It is clear that the jurisdiction of an area court or a customary court under section 41 is not limited to proceedings in respect of ‘granted’ customary rights of occupancy only.

There seems to be an inherent and fundamental flaw in any approach to the determination of the question of the jurisdiction of the High Court in respect of proceedings which relate to customary rights of occupancy, that would make section 41 of the Act a starting point of its enquiry even though there is nothing in that section which expressly makes the jurisdiction conferred on the courts mentioned therein exclusive. The jurisdiction which the High Court exercises in proceedings relating to rights of occupancy is not derived from the Act. Section 39 of the Act, while declaring such jurisdiction in regard to statutory rights of occupancy, has as its operative purpose the exclusion of other courts from the exercise of original jurisdiction in such proceedings. When a question arises as to the jurisdiction of the High Court in proceedings relating to customary rights of occupancy, the proper approach is first, to have regard to the amplitude of the jurisdiction granted to the High Court in section 236 of the 1979 Constitution, and then enquire whether there is anything in that Constitution which has excluded the jurisdiction of the High Court in proceedings relating to customary rights of occupancy.

In my judgment the decision of this court in Oyeniran v. Egbetola (supra) was erroneous and made per incuriam. This court should not be bound by that decision which would create much unnecessary problems and difficulties in States where area courts and customary courts or courts of equivalent jurisdiction do not exist and may lead some State Governors to resort to designating land in all areas of the State as urban land contrary to the spirit and intention of the Act. I hold that the High Court had jurisdiction to try the proceedings and resolve the jurisdictional issue against the defendant .

I now turn to the second part of the appeal that concerns the merits of the case. By reason of the death of the original parties to the case the present parties were substituted parties, but that has made no differences to the merits of the case. The plaintiffs’ case by their statement of claim, as finally amended, was that the land in dispute was the property of Ikolaba Chieftancy. It was averred that the plaintiffs’ ancestor settled at a place called Ogunte Kekere and thereafter moved to another place called Ogunte Nla/Iju where the land now in dispute is situate. The pleading of the plaintiffs is remarkable for its lack of precision. It would appear that the title claimed by the plaintiffs was one by grant sometime in 1940. Facts relating to that grant were pleaded in paragraphs 8-11 of the statement of claim as finally amended. In summary, the facts pleaded were that sometime in 1940 Oba Ladigbolu, the Alafin of Oyo sent one Ilusinmi to Igbetti to “apportion” land to the chiefs, that as a result of this “assignment” the eleven chiefs in Igbetti including Ikolaba got lands “allocated” to them, that the land allocated to Chief Ikolaba became the land of Ikolaba Chieftaincy family and is the land in dispute in this case. It was averred in paragraph 10 of the statement of claim that: only chiefs have land in Igbetti and holding among the chiefs are in accordance with the grant made by Ilusinmi.”

The defendant was sued in his personal capacity because, it was alleged, he trespassed on the land sometime in 1981. The defendant’s defence was that the land belonged to his family called Asunmode family. He averred that allocation of land to Igbetti Chiefs was merely for the purpose of enabling them to collect customary tributes from tenant farmers who were not indigenes of Igbetti without a transfer of interest to chief so allocated land.

From the plans which were put in evidence by the parties, it is clear that the area to which the plaintiffs laid claim was vast, covering 174.25 hectares (431 acres) of which the area trespassed on by the defendant was relatively microscopic. The area which the defendant alleged belonged to his family covered 163.416 hectares.

The learned trial judge approached the case on the footing that the claim was against the defendant in a representative capacity and that the plaintiffs’ case was based on traditional evidence. In the event, after rejecting the traditional evidence adduced by both parties he, relying on the principle in Kojo II v. Bonsie and ors. (1957) 1 WLR 1223, 1226, proceeded to test the probability of that same traditional history, already rejected, by reference to recent acts as established by the evidence. He found that farms and buildings have been erected on the land by persons who obtained grants from the plaintiffs’ family, unchallenged by the defendant’s family, and concluded that the plaintiffs have established their right to the relief claimed.

On appeal to the Court of Appeal by the defendant several issues were taken. Three of these were (1) whether the learned trial judge was correct to have applied the principle in Kojo II v. Bonsie; (2) whether on the pleadings and the evidence the plaintiffs could be said to have proved their case; and (3) whether the suit was properly constituted. The Court of Appeal held that the trial judge was correct in his application of the principle in Kojo II v. Bonsie; that the plaintiffs’ were “relying solely on the grant from Onigbetti Chieftaincy Family; that Oba Ladigbolu by his intervention did not grant any land to Ikolaba; that since the question of the constitution of the action was not raised at the trial it could not be raised in the appeal, and that if it could be so raised the defendant had held himself out as defending in a representative capacity. In the event, the Court of Appeal dismissed the defendant’s appeal.

On his appeal to this court, several issues have been raised by counsel on behalf of the defendant on the appellant’s brief of argument, apart from the issue of jurisdiction that has already been considered. Of the remaining issues, it is expedient to consider the second and the third, first. Those issues are as follows:

“(2) Whether or not the plaintiffs who pleaded and based their root of title in an action for Declaration of title on traditional history of a particular grant, can rely on grant by another person and exercise of acts of ownership and are these conflicting claims not fatal to their claim for title.

(3) Whether in a claim for declaration of title and injunction against a particular party, in his personal capacity, the court can give judgment in respect of the entire family land and can such judgment bind the family”.

The first of these issues was formulated from ground 3 of the grounds of appeal which in substance complained that by reason of the imprecision of the title claimed by the plaintiffs, the two lower courts should not have given judgment for the plaintiffs for the declaration sought.

On the first of the two issues it was submitted by counsel on behalf of the defendant that it is only when there is conflict in the traditional history given by both parties that the test laid down in Kojo II v. Bonsie should apply and that the plaintiffs having by themselves given conflicting histories of their title their claim should have been dismissed. It was further submitted that once the root of title claimed by the plaintiffs has failed, the court should not have relied on acts of possession. For his part, counsel for the plaintiffs argued that the plaintiffs did not rely on self-contradictory roots of title and that the opinion of the court below should be upheld.

The several ways in which title to land can be acquired should not be confused with the several ways in which such acquisition can be proved. The much cited case of Idundun & Ors v. Okumagba& ors. (1976) Vol. 10 NSCC 446 deals with ‘five ways in which ownership of land may be proved” and not the ways of acquiring title to land. In short Idundun & ors. v. Okumagba & Ors deals with matters of evidence rather than question of substantive law of acquisition of title. It is for this reason that acquisition of title by gift, grant, or purchase was not mentioned. Also, the principle in Kojo II v. Bonsie (supra) relates to facts which the court should advert to in coming to a conclusion on the probability of evidence of tradition. Where, as in the present case, the plaintiffs rely on acquisition of title by grant, proof of such grant by traditional history arises only where the fact of grant was so ancient as to be beyond the memory of living witnesses. Facts which are within living memory are properly to be proved by evidence of living witnesses to the event and not by evidence of tradition permitted by section 45 of the Evidence Act. (See Commissioner of Lands v. Kadiri Adigun (1937) 3 WACA 206).

The title relied on by the plaintiffs was one by grant in 1940. The 6th plaintiff witnesses gave evidence that he was alive when his father helped in partitioning the land and that he knew the extent of land partitioned to the Ikolaba Chieftaincy family. He said that “After the Yokolu crisis, Budo Toolo was assigned to Ikolaba for the purpose of collecting tributes” thus lending some support to the defendant’s case as to the effect of the exercise which took place in 1940 which have been variously described as allocation, assignment, and partition. Unfortunately, the trial judge did not comment on this evidence. He did not say whether he believed it or not. Rather, he proceeded on the wrong footing that the plaintiffs’ case was one to be proved by evidence of tradition and, failing which, by acts of possession. I agree with the learned counsel for the defendant that where the plaintiff relies on acquisition of title by grant and fails to prove it, the court cannot make a case for him on a different form of acquisition. Where in a claim for a declaration of title to land, title is claimed by grant, the court has to be sure of the nature of the grant before a declaration is granted. The principle that should have guided the trial court and the court below has been stated thus:

“Where a party relies on, and pleads a grant as his root of title, he is under a duty to prove such grant to the satisfaction of the trial court. Other evidence of acts of possession after the grant will merely go to strengthen the grant. But where as in this case, the proof of the grant is inconclusive, the bottom is knocked out of the plaintiff/appellant’s claim. When his root ceases to stand, the stem and branches will fall with the root. In other words, where the radical title pleaded is not proved, it is not permissible to support a non-existent root with acts of possession, it is not permissible to substitute a root of title that has failed with acts of possession which should have derived from that root.” (Per Oputa, JSC in Odofin v. Ayoola (1984) NSCC, 711, 731) .

In my opinion, the trial Court and the court below both misunderstood the case and did not pay attention to the manner of acquisition of title relied on by the plaintiffs. The Court of Appeal committed an error in holding that the plaintiffs “relied solely on the grant from Onigbeti Chieftaincy Family’, when that was not the plaintiffs’ case. They were both in error in approaching the matter as one to be settled by acts of ownership. In my view, the judgment of the High Court and the court below were fundamentally flawed by their misconception of the plaintiffs’ case and failure to accept or reject the evidence of a witness who claimed to be a living witness to the grant alleged. The judgments of the High Court and the court below should not be allowed to stand in these circumstances. If this had been the only fault in the proceedings the appropriates order would have been to order a rehearing of the case by the High Court. However, there is a second issue to be addressed.

I now proceed on that second issue. At the address stage, counsel for the defendant at the trial was recorded as saying that: “the claim as framed is not properly constituted.” The learned trial judge held that: “The claim was fought by the parties in representative capacity.” When the issue of the constitution of the action was raised in the court below that court held that the point was not raised in the court of trial. In that view, they were in error. However, the court below proceeded to consider the issue and said (per Omololu-Thomas, JCA):

“Even though the defendant was sued in his own name, it would seem that he was apparently defending the action in a representative capacity, as he was not claiming the whole land covered by exhibit for himself, but for his family. In that case he could have joined other members of his family.”

There was no counterclaim by the defendant. The question of his claiming land for his family did not arise. The duty of a plaintiff to bring to court a party whose presence is crucial to the resolution of the case has been stated in several cases. (see Ekpere v. Aforije (1972) All NLR (part 1) 220 where the action was struck out because the proper defendants were not made parties).

In the present case, the defendant was alleged to be a trespasser over a very minute portion of a vast area of land to which the plaintiffs sought a declaration of title. It was clear from the pleadings that the cause of action was in respect of that relatively small portion on which he was erecting a building. Yet, right from the outset, the plaintiffs claimed against him in his personal capacity a declaration of customary right of ownership over a vast area, without joining the family through whom he claim and who should have been the proper defendant in respect of the claim to the vast area of land, the interest in which was not claimed to be vested in the defendant in his personal capacity. I think this case falls within the principle in and is not unlike the case of Ekpere v. Aforije (supra). However, I would not strike out the case, since I think that the plaintiffs could easily apply to join the defendant’s family at a re-trial and not much massive amendment will be occasioned by reason alone of such joinder. A re-trial will save the plaintiffs the expense of preparing a fresh plan and will occasion less delay in getting the matter tried once again. The proper order to make in the circumstances is to order a re-trial of the action.

In sum, for the reasons which I have stated, I allow the appeal. I set aside the judgments of the High Court and the Court of Appeal. I order that the action be retried by the High Court of Oyo State. At such a re-trial, the plaintiffs are at liberty to apply for a joinder of the defendant’s family and to amend their pleadings accordingly. I order that the plaintiffs pay N10,000 costs to the defendant being costs of the appeal.M. E. OGUNDARE, J.S.C.: I have read in advance the judgment of my learned brother Ayoola JSC just delivered. I agree with his conclusion on Issue (1) that this Court should depart from its earlier decision in Oyeniran v. Egbetola (1997) 5 NWLR 122 and that the trial High Court had jurisdiction to try the case leading to this appeal. I agree entirely with his reasoning leading to this conclusion and I adopt same as mine. I also agree with him that this case is a proper case where an order of retrial should be made.

In his amended brief of argument the Appellant herein has set out five questions as calling for determination in this appeal. My learned brother Ayoola JSC has recapped the facts leading to the Plaintiff’s action, the claims of the Plaintiff and the submissions of learned counsel, including the amici curiae; I need not set them out again in this judgment. The Plaintiff (who is hereinafter referred to as Respondent) has, in his brief, in respect of Question 1 which reads:

“Whether the Court below was not in error in failing to see that the trial court lacks jurisdiction over the claims as formulated by the Plaintiff having regard to the provisions of the Land Use Act particularly section 39 and 41 thereof.”

has invited this Court to review and overrule its decision in

(i) Salati v. Shehu (1986) 1 NWLR 98

(ii) Sadikwu v. Dalori, (1996) NWLR 151

(iii) Oyeniran v. Egbetola, (1997) 5 NWLR 122

Although my learned brother Ayoola JSC has dealt exhaustively with this question in his judgment and has come to a conclusion with which I am in full agreement, I still feel I should say a few words of my own on the said question.

His Lordship, the Chief Justice of Nigeria invited a number of learned counsel as amici curiae, to assist the Court in resolving Question 1 in the light of Respondent’s request that we review and overrule our previous decisions. The following responded to the invitation of the Honourable the Chief Justice, filed briefs and presented, either by themselves or through their junior counsel, oral arguments at the hearing of the appeal. They are:

1. Hon. Kanu O. Agabi, SAN, The Attorney-General of the Federation, as he then was.
2. Hon. Kehinde Sofola SAN;
3. Hon. C. O. Akpamgbo SAN;
4. Hon. Abdullahi Ibrahim, OFR, SAN:

all three are former Attorney-General of the Federation.

5. Hon. Dr. Yemi Kayode-Adedeji, Attorney-General of Osun State; and
6. Hon. Awa U. Kalu, Attorney-General of Abia State.

I hereby express the deep appreciation of this Court for the invaluable assistance they rendered to the Court. Their contributions have assisted the Court in no small measure in the resolution of the task before it.

My Lord Ayoola JSC has restated the circumstances under which this Court would overrule its earlier decision by a later decision; I do not think I need add more to all that he said except, perhaps, to mention that this Court had the opportunity in the recent past to review the circumstances once again. It is in Rossek & Ors. v. African Continental Bank & Ors.(1993) 8 NWLR 382. I said therein at page 447 of the Report:

“Having regard to the opinions expressed and the state of the authorities as they stand, I am of the firm view that this court as the final court in this country has the power and jurisdiction to depart and overrule its previous decision whether or not by a Full Court where it is shown that the previous decision is inconsistent with the provisions of the constitution or it is erroneously reached per incuriam or will perpetuate injustice. But, as Eso JSC warned in Odi v. Osafile, this court should not overrule itself on the slightest pretence. It must be remembered that the doctrine of stare decisis or precedent is an indispensable foundation on which to decide what the law is and unless there is certainty in the law there will be no equilibrium in society”.

And when is a case said to be decided per incuriam Karibi-Whyte JSC provided the answer when at p. 493 of the Report he said –

“A case is decided per incuriam where a statute or rule having statutory effect or other binding authority which would have affected the decision, had not been brought to the attention of the Court. See African Newspaper v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137.”

The learned Justice of the Supreme Court later in his judgment at p. 494, adopted the view of Cross on Precedent in English Law (1961) p. 139 to this effect:

“The principle appears to be that a decision can only be said to be per incuriam if it is possible to point to a step in the reasoning and show that it was faulty because of a failure to mention a statute, a rule having statutory effect or an authoritative case which might have made the decision different from what it was”.

On the facts and the law the case of Salati v. Shehu (supra) was rightly decided notwithstanding the dictum of Karibi-Whyte JSC to the effect that:-

“The exercise of these jurisdictions will seem to me mutually exclusive. There is no doubt therefore, that the one cannot exercise the jurisdiction of the other.”

This dictum is merely obiter; it has led to some difficulties in subsequent cases. I agree entirely with what my learned brother Ayoola JSC said about it as well as his review and consideration of, and conclusion on, Sadikwu v. Dalori (supra). He has adequately dealt with these in his judgment; I need not add anything more to what he has said. I do not think we should overrule, in this case, Sadikwu v. Dalori.

I now turn to the case of Oyeniran v. Egbetola (supra). As has rightly been pointed out by Ayoola JSC, different reasons were given by the Justices of this Court that decided that case, for their respective decisions even though they all arrived at the same conclusion that the trial High Court in that case (that is, High Court of Oyo State) had no jurisdiction to try the case. In none of the judgments in that case was consideration given to section 236(1) of the Constitution of the Federal Republic of Nigeria, 1979 which prescribed the unlimited jurisdiction of the High Court of a State. It was this jurisdiction the High Court of Oyo State had when it became seised in 1982 of the action in Oyeniran v. Egbetola. There is nothing in section 41 of the Land Use Act which can be said to have expressly or by necessary implication, taken away this jurisdiction in matters relating to land situate in non-urban areas of Oyo State. That is assuming without so deciding, that the Land Use Act is an integral part of the Constitution, which, in my respectful view, it is not. The Act is only given special protection by the Constitution from the vagaries of amendments and repeals. No part of it can override any section of the Constitution.

Some of their Lordships felt bound by the earlier decision of this Court in Sadikwu v. Dalori (supra) without adverting their minds to the fact that as at the time that case was commenced, the jurisdiction of the High Court of Borno State where it originated was governed by section 17 of the High Court Law of Northern Nigeria, Cap. 49 Laws of Northern Nigeria 1963 which provided:

“17.(1) Subject to the provisions of the Land Tenure Law and of any other written law the High Court shall not exercise original jurisdiction in any suit or matter which-

(a) raises any issue to the title to land or as to the title to any interest in land which is subject to the jurisdiction of a native court;

(b) is subject to the jurisdiction of a native court relating to marriage, family status, guardianship of children, inheritance or the disposition of property on death.

(2) The provisions of subsection (1) shall have effect except –

(a) in so far as the Governor may by Order in Council otherwise direct;

(b) in suits transferred to the High Court under the provisions of the Native Courts Law or of any law replacing the same.” (underlining is mine)

and section 41 of the Land Tenure Law, Cap 59 Laws of Northern Nigeria 1963 which provided:

“41(1) The High Court shall have exclusive original jurisdiction in the following proceedings

(a) proceedings in which the right of the Governor or the Minister to grant a statutory right of occupancy over any land is in dispute;

(b) proceedings by way of petition of right;

(c) proceedings by the Attorney-General under the provisions of subsection (1) of section 39.

(2) A native court of competent jurisdiction shall have jurisdiction in the following proceedings –

(a) proceedings in respect of any land the subject of a statutory right of oc cupancy granted by a native authority or of a customary right of occupancy where all parties are subject to the jurisdiction of native courts, subject nevertheless to the provisions of paragraph (b) of subsection (3):

Provided that nothing herein contained shall be deemed to confer jurisdiction on any native court in regard to disputes relating to inter tribal boundaries:

(b) proceedings under the provisions of sub-section (2) of section 39.

(3) The High Court and District Court (within the respective limits prescribed in the District Courts Law) shall have jurisdiction in the following proceedings –

(a) proceedings in respect of any land the subject of a statutory right of occupancy granted by a native authority or of a customary right of occupancy where one or more of the parties are not subject to the jurisdiction of native courts;

(b) proceedings of the description referred to in paragraph (a) of subsection (2) where there is no native court of competent jurisdiction available to try the proceedings;

(c) proceedings in respect of any land the subject of any right of occupancy other than those otherwise specifically described in this section.

(4) “Proceedings in respect of any land the subject of a right of occupancy” shall include proceedings for a declaration of title to a right of occupancy.

(5)(a) Proceedings for the recovery of rent payable in respect of any certificate of occupancy may be taken in the High Court or a District Court (within the respective limits prescribed in the District Courts Law) by and in the name of any administrative officer or by and in the name of any other officer appointed by the Minister in that behalf.

(b) Proceedings for the recovery of rent payable in respect of any statutory right of occupancy granted by a native authority or any customary right of occupancy may be taken by and in the name of the native authority concerned in a native court of competent jurisdiction.”

both of which have no application in Oyo State. I think Ayoola JSC is right to say that the decision in Oyeniran v. Egbetola was given per incuriam and for the reasons given by him, which reasons I subscribe to and adopt as mine, the case was wrongly decided and ought to be departed from. Consequently, I arrive at the same decision in respect of Issue (1) formulated by the Appellants and hold that the trial High Court had jurisdiction to try this case. Grounds 1 and 2 of the amended notice of appeal, therefore, fail.

Issues 2-5 are better taken together. They read:

(2) Whether or not the Plaintiffs who pleaded and based their root of title in an action for Declaration of title on traditional history of a particular grant, can rely on grant by another person and exercise of acts of ownership and are these conflicting claims not fatal to their claim for title.

(3) Whether in a claim for declaration of title and injunction against a particular party, in his personal capacity, the court can give judgment in respect of the entire family land and can such judgment bind the family.

(4) Whether occupation of a small portion of land comprised in the land in dispute is sufficient evidence of the exact location and extent of land in dispute.

(5) Can the Plaintiffs lay claim to land which from their own pleadings and evidence they have given away to other parties”

I agree with the views expressed by my learned brother Ayoola JSC that as the events in this case occurred within living memory, it would be inappropriate to talk of traditional history. Nor would the case of Kojo II v. Bonsie & Ors. (1957) 1 WLR 1223 at 1226 and the Nigerian cases that followed that case apply. It is a case of determining the credibility or otherwise of the witnesses that testified of events in which they took part or that came to their knowledge. Unfortunately, in this case, the learned trial Judge made no findings of fact, notwithstanding that the parties led copious evidence in support of their conflicting claims as to who granted land to the Plaintiffs’ family or how they came to be on the land in dispute. It is clear that the learned trial Judge was evasive on these issues which are vital to the determination of the case before him. I am, therefore, not satisfied that he has taken proper advantage of having seen and heard the witnesses in the case. The proper order to make in the circumstances is one of retrial before another Judge of the High Court of Oyo State – Okpiri v. Jonah (1961) 1 All NLR 102; (1961) ANLR 112; Shell – BP v. Cole (1978) 3 SC 183; Total v. Nwako (1978) 5 SC. 1.

It is for the reasons given above and the other reasons given in the lead judgment of my learned brother Ayoola JSC that I too allow this appeal, set aside the judgment of the two Courts below and order that this case be reheard before another Judge of the High Court of Oyo State. And in view of the fact that this case was instituted in 1982, that is 19 years ago I order that the rehearing be taken expeditiously. I abide by the order for costs made by my learned brother, Ayoola, JSC.U. MOHAMMED, J.S.C.: My learned brother, Ayoola, JSC, has permitted me to read the draft of his judgment in advance and I agree with his conclusions. I only wish to explain the similarities of legislations which convinced me to hold in Oyeniran v. Egbetola (1997) 5 NWLR (Part 504) 122 that the trial High Court had no jurisdiction to try the case leading to this appeal.

The facts of this case have been given adequately in the leading judgment written by Ayoola JSC., and I need not repeat them in my contribution. Three previous decisions of this court have been relied upon in the appellants’ brief showing that the trial High Court of Oyo State had no jurisdiction over claims as formulated by the plaintiff having regard to the provisions of the Land Use Act, particularly sections 39 and 41.

I do not want to delve into the origins and history of the land tenure systems in Nigeria. In a nutshell however, in 1977 the Federal Military Government set up the Land Use Decree Panel headed by a Justice of the Supreme Court with the following terms of reference:

“i. To undertake an in-depth study of the various land tenure, land use, and conservation practices in the country and recommenced steps to be taken to streamline them;

ii. To study and analyse all the implications of a uniform land policy for the country;

iii. To examine the feasibility of a uniform land policy for the entire country, make necessary recommendations and propose guidelines for implementation;

iv. To examine steps necessary for controlling future land use and also opening and developing new land for the needs of government and Nigeria’s population in both urban and rural areas and to make appropriate recommendations.”

The report of this panel was never made public. But the Federal Military Government adopted the trusteeship tenure which embraced many of the essential principles of the Northern Nigerian Land Tenure Law. The trusteeship method of Land Tenure aimed at vesting all land tenure land comprised in the State, other than Federal lands, in the Military government of the state in trust to be administered for the use and common benefit of all Nigerians and by establishing uniform national principles. These principles are as follows:

“(a) The maximum interest the citizen is allowed in land is the right of occupancy; but the developer owns his improvements on the land;

(b) Dispositions are subject to control without reference to ethnic origin of the transferee;

(c) Private land rights are subject to and must give way to overriding public interest; and

(d) Security of tenure is dependent on land use”.

(See R. W. James on Nigerian Land Use Act: policy and principles)

I have referred to the above facts in order to show that in promulgation of the Land Use Act the government adopted mainly the essential principles of the of Northern Nigeria Land Tenure Law. In considering the jurisdictional issue raised in this appeal it will be educative to consider the provisions of Section 39 (1) & (2) and 41 of the Land Use Act, 1978. If these Sections are juxtaposed with Section 41 of the Land Tenure Law, Cap 59, Laws of the Northern Nigeria 1963 one can see great points of similarities between the two enactment’s. I will start with Section 41 of the Land Tenure “Law of Northern Nigeria which was earlier in time. Part of the section which is relevant to this appeal provides as follows:

“41(1) The High Court shall have exclusive original jurisdiction in the following proceedings –

(a) Proceedings in which the right of the Governor or the Minister to grant a statutory right of occupancy over any land is in dispute;

(b) Proceedings by way of petition of right;

(c) Proceedings by the Attorney-General under the provisions of subsection (1) of section 39.

(2) A native court of competent jurisdiction shall have Jurisdiction in the following proceedings –

(a) Proceedings in respect of any land the subject of a statutory right of occupancy granted by a native authority or of a customary right of occupancy where all parties are subject to the jurisdiction of native courts, subject nevertheless to the provisions of paragraph (b) of subsection (3):

Provided that nothing herein contained shall be deemed to confer jurisdiction on any native court in regard to disputes relating to inter tribal boundaries:

(b) proceedings under the provisions of sub-section (2) of section 39.

(3) The High Court and District Court (within the respective limits prescribed in the District Courts Law) shall have jurisdiction in the following proceedings –

(a) Proceedings in respect of any land the subject of a statutory right of occupancy granted by a native authority or of a customary right of occupancy where one or more of the parties are not subject to the jurisdiction of native courts;

(b) proceedings of the description referred to in paragraph (a) of subsection (2) where there is no native court of competent jurisdiction available to try the proceedings;

(c) Proceedings in respect of any land the subject of any right of occupancy other than those otherwise specifically described in this section.

(4) “Proceedings in respect of any land the subject of a right of occupancy” shall include proceedings for a declaration of title to a right of occupancy

I will now refer to section 17(1)(a) of the High Court Law, Cap 49 Laws of Northern Nigeria. It provides as follows:

“17.(1) Subject to the provisions of the Land Tenure Law and of any other written law the High Court shall not exercise original jurisdiction in any suit or matter which-

(a) raises any issues to the title to land or as to the title to any interest in land which is subject to the jurisdiction of a native court;”

As can be seen, the jurisdiction of the High Court was ousted in respect of matters concerning title to land, which is subject to jurisdiction of the Area Courts. I have mentioned earlier that the Federal Government, in promulgating the Land Use Act adopted mainly the essential principles of the Northern Nigeria Land Tenure Law. I will now reproduce Sections 39 (1) and (2) and 41 of the Land Use Act for easy comparison. Section 39(1) and (2) reads:

“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 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 any person to compensation payable for improvements on land under this 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 modification as would enable effect to be given to the provisions of this section.”

Section 41 of the Land Use Act deals with the jurisdiction of Area Courts and Customary Courts in land matters in the following provision:

“41. An area court or a customary court or other court of equivalent jurisdiction in a state shall have jurisdiction in respect of proceedings in respect of a customary right of occupancy granted by a Local Government under this Act; and for the purpose 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.”

One can see from the wording of the two enactments that there are points of similarities between the two laws. Wali J.S.C. considered the two enactments in his judgment in Sadikwu v. Dalori (1996) 5 NWLR (Part 447) 151, particularly at page 163 wherein he said;

“In substance the purpose of S.41 of the Land Use Act, 1978 and S.41(2)(a) of the Land Tenure Law is the same. The provisions of the two laws provide for conferment of jurisdiction on Area or Customary Court in respect of proceedings involving the statutory or customary right of occupancy granted by a Local Government or a Local Authority. In my view S. 17(1) of the High Court Law of Northern Nigerian applicable to Borno State goes to support S. 41 of the Land Use Act 1978 and S. 41(2)(a) of the Land Tenure Law. I cannot therefore see how S. (17)(1) of the High Court Law, by reading it with the provisions of sections 39 and 41 of the Land Use Act 1978 and S. 41 of the Land Tenure Law, can confer jurisdiction in land matters specifically excluded by those laws”.

It is mainly due to the decision in Sadikwu v. Dalori (Supra) that I found that I had no alternative, under the rule of stare decisis other than to adhere to the principle of law laid down in that decision. My learned brother Ogwuegbu J.S.C. in his contribution to the lead judgment in Oyeniran v. Egbetola (Supra) considered the issue of jurisdiction of the courts in Northern States of Nigeria and their sister courts in Southern States and Opined as follows:

“The jurisdiction of the courts established for Northern Nigeria as can be seen in section 41 of the Land Tenure Law followed the division of the rights of occupancy and the same jurisdiction of courts was adopted in sections 39(1) and 41 of the Land Use Act. 1978. One can therefore say that the jurisdiction of the courts in the Northern States of Nigeria in relation to land disputes arising out of land held under statutory right of occupancy granted by the Governor and land subject to a statutory right of occupancy granted by a local government or of a customary right of occupancy granted by a local government remained the same both before and after the Land Use Act.

The High Courts and Customary Courts in the Southern States had concurrent original jurisdiction in proceedings in respect of land the subject of customary right of occupancy. In fact the bulk of such cases are initiated in the High Court and this preference can be found in the history of Customary Courts particularly in the Eastern States of Nigeria and some of those States do not even think of establishing one.

I must however state that Sadikwu v. Dalori (Supra) is binding on me. See Layanju v. Araoye (1961) 1 SCNLR 139; All NLR 90 and Osumanu v. Seidu (1949) 12 WACA 437. It is hoped that the legislature will amend section 41 of the Land Use Act by restoring the concurrent jurisdiction that existed before the 1978 Act. This will remove the obvious jurisdictional difficulty which may arise.”

I must explain that when I wrote the judgment of Oyeniran v. Egbetola (Supra) it did not occur to me that Sadikwu v. Dalori (Supra) was filed before 1979 Constitution became operational. It is also clear that the wide and all embracing jurisdiction of a state High Court under the provisions of section 236(1) of 1979 Constitution was not made an issue in the appeal. The court below did consider the Constitutional provision, but as my attention was focused on the binding authority of Sadikwu v. Dalori (Supra) I did not see it necessary to consider the constitutional provision suo motu.

The wide and all embracing jurisdiction of the State High Court under section 236(1) of 1979 constitution has some limitations. It is very clear that the State High Court has no jurisdiction to determine a matter which involves Islamic Personal Law either at appellate or at first instance jurisdictions and there is no provision in the constitution which dealt with the issue of Islamic Personal Law at first instance level . I am not unmindful of the decision of this court that the Land Use Act is not an integral part of the Constitution – See Nkwocha v. Governor of Anambra State (1984) 6 S.C. 362 at 365 and 403. Therefore the Act (Land Use Act) could not find place in the opening words of section 236(1) of the Constitution, viz, “subject to the provisions of this constitution”. Thus, unlike Islamic Personal Law which is outside the jurisdiction of a State High Court, a provision of the Land Use Act cannot be said to be excluded.

Be that as it may, having considered the individual briefs written by the learned counsel who appeared before us, including those who answered our invitation to appear as amicus curiae, I am quite satisfied that a High Court of a State has jurisdiction in respect of proceedings dealing with land which is subject to both statutory Right of Occupancy granted by the Governor and Customary Right of Occupancy granted by the Local Government.

For these reasons and the fuller reasons in the judgment of my learned brother, Ayoola, J.S.C., I agree to depart from the decision made in the case of Oyeniran v. Egbetola (Supra). I abide by all the consequential orders made in the lead judgment.

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SC.304/1991