Bob O. Akaighe V. Onomuiyorivbiyefe Idama (1964)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN,J.S.C. 

This appeal is from the order made by Kester, J. sitting in the High Court at Warri on 27th October, 1961, in the Civil Appeal No. W/16.A/60, in relation to a Customary Court suit involving title to land. The learned Judge wrote in his judgement that the lower courts did not go enough into the Issues involved, with the result that it was difficult to ascertain how they arrived at their decisions; and he ordered the case to be reheard de novo with plans by the Chief Magistrate, Ward, and remitted the case to him, purporting to act under paragraph (a) of section 53 of the Customary Courts Law, cap. 31 of the laws of the Western Region. The main ground of appeal is:

‘The order that the matter be reheard by the Chief Magistrate is erroneous in point of law because Magistrates’ Courts have no jurisdiction in matters relating to title to land.”

The case was begun in the Uvbie Clan Grade C Customary Court; the claims are a declaration of title to a certain piece of land, damages for trespass and an injunction. That court’s decision went on appeal to the Western Urhobo Grade B Customary Court, and from the Grade B court there was an appeal to the High Court, which made the order now to be considered.

According to sections 45 to 47 of the Customary Courts Law, If a customary court of appeal is constituted for an area, an appeal lies to that court from a Grade C court in the area; If not, it lies to a magistrate’s court. The argument before us proceeded on the basis that the appeal to the above Grade B Court was competent, and that it did not lie to the magistrate’s court.

It was also agreed by counsel that unless an order was made by the Governor in Council under section 20 of the Magistrates’ Courts Law, cap. 74 of the Laws of the Western Region, authorising the Chief Magistrate’s Court to determine suits with an Issue of title to land, the Chief Magistrate could not entertain the present case in his original jurisdiction.

On the other hand, it is agreed that when an appeal lies from a customary court to a magistrate’s court, the Magistrate’s Court may decide the Issue of title raised in the suit: section 25 of the Magistrates’ Courts Law and section 47 of the Customary Courts Law. Thus a magistrate’s court may be competent to decide an issue as a court of appeal which it could not entertain as a court of first instance.

Ex concessis the Chief Magistrate’s Court at Warri could not, in the light of the express provisions referred to, entertain the case in hand at first instance, and no appeal could have been made to it from the Grade C Customary Court. Nevertheless it Is argued for the respondent that when a case is sent to a magistrate’s court under paragraph (b) of section 53 of the Customary Courts Law, the Magistrate’s Court is authorised ad hoc to hear the case regardless of whether this court has or has not express jurisdiction to entertain it; in other words the appeal court’s order operates to clothe the Magistrate’s Court with the necessary jurisdiction. (Parenthetically be it said that it was agreed to treat the High Court order now complained of as an order made under paragraph (b). Be it added also that the order should have quashed the proceedings as a preliminary to sending the case to the Chief Magistrate’s Court; it will be regarded as having done so by implication.)

For the sake of brevity, the customary court in which a suit is begun will be referred to as the trial court, and the court to which a case is sent by order of the appeal court as the receiving court; the appeal court may be the High Court or a lower appeal court to which an appeal lies under the Customary Courts Law.

Before the setting up of customary courts in the Western Region there were native courts functioning under the Native Courts Ordinance (printed as cap. 142 in the 1948 Laws of Nigeria). The question arose under section 36(1) (b) of that Ordinance whether a magistrate as the receiving court could hear the case sent if it was outside his original jurisdiction. The West African Court of Appeal was of opinion in Horsfall v. Amachree, 4 W.A.C.A. 18, that the magistrate would not be sitting in his original jurisdiction and could entertain the case. That opinion was repeated in Ekeleme v. Ugwuiro, 8 W.A.C.A. 224. Neither report gives any reasons. There is no need to consider whether the opinion was correct, for the text of section 53(b) of the Customary Courts Law differs materially from the former provision. The two will be quoted here and the words added to the new text will be underlined to bring out the difference.

The Native Courts Ordinance, section 36(1), printed as section 40(1) in the 1948 Laws of Nigeria, reads as follows:

“A native court of appeal, a magistrate’s court, the High Court, a district officer, a Resident or the Governor in the exercise of his appellate jurisdiction under this Ordinance may:

(a) after rehearing the whole case or not, make any such order or pass any such sentence as the court of first Instance could have made or passed in such cause or matter;

(b) order any such cause or matter to be reheard before the court of first instance or before any other native court or before any magistrate’s court.”