Aliyu Maiyaki V. Alhaji Roba Maidoya (1988)
LawGlobal-Hub Lead Judgment Report
MAIDAMA, J.C.A.
The main issue raised by this Appeal is whether it is proper for a Court to raise an issue suo motu and decide on it without giving the parties to the proceedings an opportunity of being heard. The facts which gave rise to this appeal are as follows:
The plaintiff, who is now the appellant, took out a writ of summons against the defendant, in Suit No. HJ/158/84, in the High Court of Justice, Jos, asking for the following reliefs:-
(a) a declaration of title/ownership of all that piece of land situate along Keffi-Gunduma-Keffi Road in the Keffi Local Government Council Area of Plateau State of Nigeria consisting of 72.03 hectares, the boundaries of which are delineated by a red verged line on the plan attached to a Certificate of Occupancy No. PL 5943 which covers the said piece of land.
(b) Perpetual injunction restraining the defendant, his agents and or servants from further trespassing on the land.
(c) N5,000.00 (Five thousand Naira) damages for trespass.
Pursuant to the order of the Court, pleadings were filed and exchanged.
In his Statement of Claim, the plaintiff averred that the land in dispute belonged to his father MAIYAKI KHATSOR, who was the first to settle on and cultivate it; for that reason, the whole area was named as “ANGWAN MAIYAKI”. The plaintiff further averred that on the death of his father, he inherited the land in dispute and continued to cultivate it without disturbance until in 1982 when the defendant trespassed upon a portion of it. Consequently, he reported the matter to the Emir of Keffi who sent his Madaki to intervene and effect a settlement. A settlement was reached by dividing the land between him and the defendant. He later obtained a Certificate of Occupancy No. PL 5943 in respect of his own portion. Inspite of this, the defendant continued to trespass on his land.
The defendant controverted the claims of the plaintiff in his Statement of Defence, and in paragraph 6 of the said Statement of Defence, he specifically pleaded the defence of res judicata. Paragraph 6 of his Statement of Defence reads:-
“6(a) sometime in 1959 the plaintiffs ancestors laid false claim of ownership to the property which is the subject matter of this suit. The dispute was between the Maiyaki Family of which the plaintiff is a descendant and the Alagabe Family of which the defendant is a descendant. In order to promote peace amongst the parties the Emir of Keffi set up a panel under the Chairmanship of the District Head of Keffi to establish the true ownership of the land in dispute. The District Head carried out his investigations and made a written finding to the Emir that the land in dispute belonged to Dauda the son of Alagaba. A certified true copy of the said finding or report will be founded upon at the trial of this action.
(b) In suit No. 177/81 the defendant’s father and one Hussaini Maiyaki the brother of the plaintiff to the Keffi Civil Area Court for trespassing on his piece or parcel of land which is the subject matter of this suit. The said Hussaini Maiyaki did not dispute the defendant’s father’s claim to ownership of the property but only denied plucking locust beans therefrom. A certified true copy of the proceedings in the said suit will be relied upon at the trial of this suit.
(c) Sometime in 1982 one Kyantu Mada trespassed on a part of the land now in dispute by erecting a building thereon. The defendant’s father Alhaji Muhammadu also known as Alhaji Dauda sued him (Kyantu Mada a descendant of Maiyaki) to the Keffi Civil Area Court where, on Kyantu Mada’s admission, declared the defendant’s father, Alhaji Muhammadu, the owner of the land in dispute on 25th February, 1982 in Suit No. CV/71/82. A certified true copy of the proceedings herein mentioned will be relied upon at the hearing of this suit.
(d) In Suit No. CV/F1/314 of 1982 the plaintiff sued the defendant to the Plateau State Upper Area Court for a declaration of title to the piece of land in dispute. Having heard evidence from both sides and visited and inspected the land, the said Court dismissed the plaintiff’s claim and found for the defendant. A certified true copy of the record of trial of the plaintiffs claim will be founded upon at the trial of this action.
(e) The plaintiff being dissatisfied with the decision of the Upper Area Court appealed against the same to the Customary Court of Appeal Jos which upheld the decision of the said Upper Area Court. The judgment of the Customary Court of Appeal No. CCA/37A/1983 dated 6th December, 1984 will be relied upon at the trial of this suit. The plaintiff has not appealed against the judgment of the Customary Court of Appeal.”
After concluding his Statement of Defence, the ‘defendant also counter-claimed for the following reliefs:-
“WHEREFOR the defendant counter-claims against the plaintiff as follows:-
(a) A declaration of title to the piece or parcel of land consisting of 95.43 hectares situate along Kaduna-Keffi Road (otherwise known as Tigwada-Kaduna Road or Keffi-Gunduma-Keffi Road) in the Keffi Local Government Council of which 72.03 hectares claimed by the plaintiff is a part, a place within the jurisdiction of this Honourable Court, which piece or parcel of land is more properly and clearly described and delineated on a survey plan filed with this Statement of Defence.
(b) A perpetual injunction restraining the plaintiff by himself, his servants and agents or otherwise, howsoever from remaining or continuing in occupation of the said piece or parcel of land or doing any act or thing thereon or thereto in-consistent with and not in consonance with the defendant’s ownership of or title to the same or interference with the defendant’s rights and quiet enjoyment over the said property. N500.00 being damages for trespass.”
After the close of the pleadings, the case came up for trial before Ahinche, J., sitting at Jos High Court, on the 29th of November, 1985 when he struck out the plaintiff’s claim. He said:-
“This case was first tried in the Area Court Keffi, later on appeal to Upper Area Court Keffi and on further appeal it went to the Customary Court of Appeal, Jos. Therefore this Court has no jurisdiction to hear the case. The parties can go to Court of Appeal if they want. See Edict No. 10 & 11 of 1984 amending the High Court Laws. The case is hereby struck out for want of jurisdiction.”
It is against this decision that the plaintiff (hereinafter called the appellant) has appealed to this Court and filed along with his Notice of Appeal three grounds of Appeal which read as follows:-
“GROUND 1:
That the striking out of this suit by the learned trial Judge on his own motion that he has no jurisdiction to entertain the suit is erroneous in point of Law in that:
(a) When a Court raises a point suo motu parties thereto should be afforded an opportunity to be heard on the point before the Court bases its decision on it.
(b) When it is obvious from the pleadings filed in this suit by both parties that none of them raises the issue of lack of jurisdiction on the part of the learned trial Judge.
(c) That evidence ought to have been led by both parties before deciding on the basis of such evidence whether or not the trial Court has jurisdiction.
(d) That by the nature of and on the surface of the pleadings the learned trial Judge ought to have waited for the evidence to be adduced and Counsel address on the issue of jurisdiction if he felt so strongly about his lack of jurisdiction to entertain the suit.
GROUND 2:
That the learned trial Judge erred in law in that he posed and formulated a new issue to wit: his lack of jurisdiction to entertain the suit when such fact was not raised in the pleadings filed and duly exchanged by the parties in this matter and no preliminary objection to his lack of jurisdiction was raised by either parties to the suit.
GROUND 3:
That the decision of the learned trial Judge is altogether unwarranted, unreasonable and cannot be supported in the absence of evidence…
The relief sought by the appellant from this Court is to set aside the order of the lower Court and remit the case to the High Court for trial.
Both parties to this appeal filed their briefs of argument, in accordance with the rules of this Court. When the case came up for hearing on the 23rd of February 1988, learned Counsel for the respondent who was present in Court and who observed that Counsel for the appellant was not in Court, urged us to dismiss the appeal for want of prosecution. But when his attention was drawn to the provisions of Order 6 Rule 9(e) of the Court of Appeal (Amendment) Rules 1984, he withdrew his application, he then adopted his brief of argument which he filed on 19th of May 1987 and after a short address, asked this Court to dismiss the appeal.
Learned Counsel for the appellant, Mr. Enamhegbai, in the brief of argument filed by him on the 29th of April, 1987 framed three issues for determination which read as follows:-
“(a) Was it proper for the trial Judge to raise a point suo motu and decide the case on it without inviting the parties to the proceedings to address him on the point before basing his decision on the point so raised suo motu?
(b) Did the parties to this proceeding make lack of jurisdiction of the trial Court an issue which called for determination by the trial Judge in this matter?
(c) Whether the issue of lack of jurisdiction was manifested or apparent from the pleadings duly filed and exchanged by the parties in this matter?”
For his own part, Mr. Clement Ikomi, learned Counsel for the respondent framed only one issue which reads:-
“Was the learned trial Judge in error to have struck out the said suit for want of jurisdiction without calling upon the parties to address him on any aspect of the case when what would have been addressed upon are sufficiently set out in the Statement of Claim and counter-claim?”
The argument of the learned Counsel for the appellant as contained in his brief of argument, in sum, is that it is wrong for a Court to give a decision on a point raised suo motu without affording parties an opportunity to argue it at the hearing. For this submission, learned Counsel for the appellant cited and relied on the following cases: Ogiamien v. Ogiamien (1967) N.M.L.R. 245 at 249; T.O. Kuti v. Balogun (1978) 1 S.C. 53 at 60; The Queen v. Ohaka (1962) 1 All N.L.R. 505; Odiase v. Agho (1972) 1 All N.L.R. (Part 1) 170 at 176; Board of Customs and Excise vs. Alhaji Ibrahim Barau (1982) 10 S.C. 48 at 106- 107 and at 109. Learned Counsel also pointed out that the issue of jurisdiction was not pleaded and that even if it was pleaded the trial Court ought to have allowed evidence to be taken before deciding on it. Learned Counsel therefore urged us to allow this appeal.
Replying, Mr. Ikomi, learned Counsel for the respondent submitted that since the appellant did not deny that the subject matter of the suit had not been adjudicated upon by both the Upper Area Court and the Customary Court of Appeal and that no appeal had been lodged to this Court against the decision of the Customary Court of Appeal, it would be wrong to allow the appellant to re-litigate the same matter in the High Court because that would amount to sitting on appeal against the decision of the Customary Court of Appeal when the High Court had no such powers. He submitted that the High Court was right in striking out the appellant’s claim. The appeal should therefore be dismissed.
The state of the law now is, it is wrong for a Judge to give a decision on a point on which opportunity was not afforded Counsel to argue at the hearing. See Ogiamien vs. Ogiamien and the other cases cited supra.
There is no distinction between the Court of first instance and an Appeal Court. In the case of Board of Customs and Excise vs. Alhaji Ibrahim Barau, Bello, J.S.C., (as he then was) stressed the need to hear parties on any point raised by the Appeal Court suo motu when he said:-
“It is settled by a long line of decisions that as a general rule, an appellate court will not consider nor determine any question that has not been made a ground of appeal or which the appellant has not obtained leave to canvass and the respondent has not been given opportunity to be heard. It is only in very exceptional circumstances where the Justice of the case demands it that the Court may depart from the rule and may raise a point suo motu. When a Court of Appeal raises such a point, then parties must be given opportunity to be heard on the point, particularly the party that may suffer punishment as the result of the point raised suo motu.”
Guided by the principle enunciated in the cases cited above, I agree with the submissions of the learned Counsel for the appellant that the trial Judge was wrong in striking out the appellant’s claim. The appeal on this ground succeeds and it is hereby allowed.
As to the appeal on the ground of lack of jurisdiction, it was submitted that since the issue was not raised in the pleadings by either of the parties, it would be wrong to grant to the respondent a relief which he did not ask for. Learned Counsel cited the following cases: Akpapune v. Nzeke (1983) 2 S.C. NLR 1 at 14; Samuel Oloye Aro & Ors. v. Ode Oshin Durogbo (1974) 4 UILR (PART II) 297 at 300; and Ekpenyong & Ors. v. Nyong & Ors. (1975) 2 S.C. 71 at 80-81.
The defence of lack of jurisdiction is one of the defences available to a defendant who is required to specifically plead it. Such a defence requires no special formality, all that it requires is for the defendant to state the facts sufficiently to show that the Court in which the claim is brought has no jurisdiction to entertain it. Where the defence of lack of jurisdiction appears upon the face of the Statement of Claim, the correct procedure is for the defendant to raise the question of jurisdiction under Order 10 Rule 21 of the
Plateau State High Court Rules which reads:-
“21(1) A party may by his pleading raise any point of law.
(2) An objection in point of law so taken shall be disposed of by the court at the trial.
Provided that by consent of the parties, or by order of the court on the application of either party, the objection may be set down for hearing and disposed of at any time before the trial.”
In Everett v. Ribbands (1962) 1 QB 198 at 200, Romer, L.J. said:-
Where there is a point of law which if decided, in one way, is going to be decisive of litigation, advantage is to be taken of the facilities afforded by the rules of Court to have it disposed of at the close of pleadings or very shortly afterwards.” (Italics mine)
See also Yeoman Credit Ltd. vs. Walter (1961) 2A.E.R. 281 at 299; Adewale Fashanu vs. Governor, Western Region and Another (1956) W.R.N.L.R. 138.
This shows that evidence need not be led as suggested by learned Counsel for the appellant. I however agree with the learned Counsel for the appellant that this defence was not raised by the respondent in his Statement of Defence. By raising it suo motu at the close of the pleadings, the learned trial Judge ought to have invited the parties to address him on it before deciding on the issue. In the circumstances, this appeal succeeds and it is hereby allowed. The judgment of the High Court dated 29th of November, 1985 is hereby set aside. The case is remitted to the High Court for hearing before another Judge. The appellant is entitled to costs which I assess at N250.00.
Other Citations: (1988) LCN/0060(CA)
