Chief Daniel Awodele Oloba V. Isaac Olubodun Akereja (1988)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, J.S.C.

The claim filed by the appellant in the Idanre/Ifedore Grade I Customary Court, holden at Igbara-Oke in Ondo State in January, 1980 was for:

“(1) declaration that the defendant is not a member of Sapetu family of Igbara-Oke;

(2) declaration that the defendant has no claim to the rights, privileges, honour and estate of the said Sapetu family of Igbara-Oke;

(3) injunction restraining the defendant from parading himself as a member of the said Sapetu family of Igbara-Oke;

(4) further injunction restraining the defendant, his servants and agents from doing anything inconsistent with the rights, interests and entitlements of the Sapetu family;

(5) special damages of N200.00 for parading himself as indication (sic) in paragraph 3 above.”

Following the service upon him of the summons, the defendant/respondent filed a motion challenging the jurisdiction of the court and more especially in the following terms:

Motion of Notice

Under Order 8 Rule 2 Customary Court Rule of Ondo State, Take Notice that this Honourable Court will be moved on Tuesday the 15th day of January, 1980 at the hour of 8.00a.m. in the forenoon or so soon thereafter as defendant/applicant can be heard for an order that this Honourable Court has no jurisdiction to entertain the above case and that the President of the Court is related to the plaintiff by marriage and maternally and for such further or other orders as this Honourable Court may deem fit to make in the circumstances.”

The application was supported by a 14 paragraph affidavit paragraphs 4, 7, 9, 10, 11 and 12 of which read:

“4. That the plaintiff told me and other members of my branch in Sapetu chieftaincy that we are not related to the chieftaincy nor are we entitled to the chieftaincy title, but we refused;

7. That the plaintiffs claims are based on Sapetu chieftaincy title and so this Court has no jurisdiction over the plaintiffs case under the Chiefs’ Law Cap 19 Laws of Western Region applicable to Ondo State;

“4. That the plaintiffs No.2 claim on his civil summons says that the defendant has no claim to the rights, privileges, honour and estate of the said Sapetu family. That it is clear that the whole matter is about Sapetu chieftaincy title and that the estate the plaintiff refers to is very large as they include buildings, farmlands and other properties;

10. That the estate is inheritance of Sapetu family inherited from generation to generation and the value today is more than 50,000.00 Naira;
11. That the jurisdiction of this Honourable Court in matters of inheritance is limited to N5000.00 under the Customary Court Edict of 1978;
12. That the President of the Court, Mr. Adigun married Abigael Adigun from the plaintiffs family and so the President is an in law to the plaintiff.”

The plaintiff/appellant deposed to and filed a counter-affidavit. Paragraphs 6, 8, 10, 17, 18 and 19 read:

“6. That the action before this Honourable Court does not raise any chieftaincy dispute;

8. That the basis of the action is that the defendant is not a member of Sapetu family of 19bara-Oke;
9. That there is a chieftaincy for the family and this is the Sapetu of Igbara-Oke;
10. That the family action or claim before this honourable court is not for land, houses, farmland and other properties;
11. That there is no action or claim by the family stipulating value before this honourable court.

The court, after hearing the parties and considering the facts deposed to in the affidavit and counter-affidavit, overruled the objective to jurisdiction in the following words:

“Considering the afore-mentioned facts on the motions before this court, court believed that it has competent jurisdiction to hear the substantive case in respect of which these motions arose.”

The defendant was not satisfied and so he appealed to the High Court on 2 grounds:

(1) that the trial Court erred in law in holding that it has jurisdiction over the plaintiffs case when it is clear from the claim of the plaintiff, the affidavit and the counter-affidavit filed by the parties that the subject matter of the plaintiffs action relates .

(2) that the trial Court erred in law in holding that it has jurisdiction over the plaintiffs case when the value of the properties involved was not stated by the plaintiff and the value stated by the defendant was not contradicted either.”

The appeal came before Afonja, J. sitting at the High Court of Justice of Ondo State of Nigeria, Akure Judicial Division holden at Akure. After hearing arguments of counsel for the parties, he gave a considered judgment dismissing the appeal. On ground 1, he held that the subject-matter of the claim before the trial Court does not relate to a chieftaincy matter. On ground 2, he said:

“It is clear, ex facie, that the claim is not for title to any real or personal property of the Sapetu family but fundamentally for a determination as to whether or not the appellant is truly a member of the said family.”

The defendant was still not satisfied and so he appealed to the Court of Appeal on 3 grounds which read:

“1. The learned appellate Judge erred in law in confirming the order of the trial Court as to jurisdiction to try the plaintiffs claim when it is clear in law that

(a) the trial Court or any court has no jurisdiction over chieftaincy matters as specified in Chiefs Law Cap 19 Laws of Western Region of Nigeria 1959 as applicable to Ondo State;

(b) the trial Court has no jurisdiction to pronounce declaratory judgments or orders since the jurisdiction is set out (sic) under Ondo State Customary Law 1980;

2. The learned appellate Judge misconceived the issue of jurisdiction as to the value of the estate not inserted in the plaintiffs claim when jurisdiction of the trial Court over inheritance was only limited to N5,000.00 by Ondo State Customary Law 1980;
3. The learned appellate Judge did not properly evaluate the affidavit evidence before him and the exhibit attached thereto and thereby came to a wrong decision.”

After hearing arguments, the Court of Appeal (Coram Omo Eboh, Joe Jacks and Ajose-Adeogun, JJ.C.A.) held that the appeal succeeded on ground 1(b) and that arguments on the remaining ground 2 are misconceived and irrelevant. Ajose-Adeogun, J.C.A. in his judgment (concurred in by Omo Eboh and Joe Jacks, JJ.C.A.) after referring to section 17(3) of the Customary Courts Law (Cap 33 of the Laws of Ondo State) and setting out the jurisdiction of Grade 1 Customary Court, prescribed in the second Schedule of the said law said,

“Quite obviously, items (1), (2) and (4) are not related at all to any of the five reliefs contained in the plaintiffs/respondent’s claim before the customary court. On the face of it, the first leg of the claim relates to the determination of family membership. That of course is not the same question as the determination of a family status which is specifically excluded from the original jurisdiction of the High Court (see section 9 and 10 of the High Court Law Cap 45 of the Laws of Ondo State particularly the proviso to the latter). See also the case of Arnold Nwafia v. Nwanakwuo Ububa (1966) NMLR 219 and the English case of Ford v. Ford (1946-47) CLR. 524, the point made being “that no question as to a person’s status in any particular family can arise until it be first established that he is a member of that family. Only the Customary Court has original jurisdiction over the former while the High Court can entertain the latter. The remaining reliefs appear to me to seek for appellant’s deprivation of his family rights, interests, and entitlements to the Sapetu family estate, privileges and honour. To that extent, the High Court is not deprived of original jurisdiction. The said matters cannot, in my view, be strictly classified as land matters under item (2) of the above quoted list of customary court jurisdiction and powers, I also do not think that the said matters fall under item (5) of the said list which appears to relate to contracts and torts.

Following the above views, it is my conclusion that all the reliefs being sought against the appellant are declarations as to his family membership, rights, interests and entitlements. They clearly do not fall within the jurisdiction of the customary court as shown above.”

Forgetting the changes brought above the 1979 Constitution, the learned Justice referred to the extent of the jurisdiction of the High Court of Ondo State (see section 9 High Court Law). Thus, he commented as follows:

“On the other hand, the High Court as a superior court of record, has wide jurisdiction and can “possess and exercise all the jurisdiction, powers and authorities which are vested in or capable of

being exercised by Her Majesty’s High Court of Justice England (see section 9 of the High Court Law). Undoubtedly, these powers include those for making declarations.”

Section 236 of the 1979 Constitution by its provision removed all references to Her Majesty’s High Court of Justice when prescribing the jurisdiction for the state’s High Court. It reads:

“Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred by law upon it, the High Court of a state shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent 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.”

To the extent that the Constitution has jettisoned all references to the jurisdiction of Her Majesty’s High Court of Justice from the jurisdiction prescribed for the State’s High Court, the State’s High Court Law must be deemed to have been amended. In other words, to the extent to which it is inconsistent with the provisions of the Constitution, the State’s High Court Law is null and void. The learned Justice was therefore in error to have interpreted the jurisdiction of Ondo State High Court by reference to Her Majesty’s High Court of Justice in England.

Having held that the Customary Court had no jurisdiction to hear and determine the case, he ordered as follows:

“The judgment of the appellate High Court in this matter given on 7th January, 1982 confirming in effect the ruling of Idanre/Ifedore Grade 1 Customary Court, is hereby set aside. Instead, it is ordered that the case before the said Customary Court in Suit No.11 CC.G.1.1/80 filed on 31st December, 1979 be and is hereby struck out for want of jurisdiction.”

Aggrieved, the plaintiff has appealed to this Court and the grounds of his complaints are:

“1. The Justices of the Court of Appeal erred in law by basing their judgment on a ground of appeal that was not before the High Court and subsequently without leave was not before the Court of Appeal itself.

Particulars

The Justices of the Court of Appeal held:

(a) In the present case, no steps were taken by appellant’s Counsel before the appellate High Court either to amend his original grounds or file additional ones to reflect the alleged error regarding the lack of jurisdiction in a Customary Court to make a declaratory judgment or order. Consequently, the learned appellate Judge was right to reject any argument based on the said alleged error.

Despite the view of the Court of Appeal in (a) the court gave judgment contrary to its view;

(b) The Justices of the Court of Appeal held “I believe that opportunity can still be taken in a second or further appeal to pray in aid any error or misdirection not originally indicated or notified.”

When it is the law that the opportunity can only be taken by leave of court which in this case was never asked for.

(c) The Justices of the Court of Appeal had a duty to reject all arguments on a ground not before the court in its judgment as if it had never been admitted or argued.

(d) Court rules and procedures are made and meant to be followed and obeyed both by the parties and the court itself;

(e) To ignore it and act on nothing as the Court of Appeal did in this case is to destroy the whole basis for court rules and procedure.

(f) A judgment based on such error therefore is invalid null and void and cannot stand.

2. In the Alternative:

Even if the Court of Appeal was right to have taken a new point on appeal without the leave of court (which is denied), the Justices of the Court of Appeal erred in law and misdirected themselves on declarations in a Customary Court.

Particulars

(Omitted)

3. The Court of Appeal erred in law and misdirected itself by disturbing and substituting its own views for the concurrent findings of the Customary Court and the High Court that neither chieftaincy matter nor land matter for which value must be stated was before the Customary Court and that the court had jurisdiction to determine the issue of the Sapetu family of Igbara-Oke that was before the Customary Court.

Particulars

(Omitted)

4. The Justices of the Court of Appeal erred in law and misdirected themselves on what was the substance of the claim before the Idanre/Ifedore Grade 1 Customary Court which substance was the determination of the membership of the Sapetu family of Igbara-Oke.

Particulars

(Omitted)

5. The learned Justices of the Court of Appeal erred in law and misdirected themselves by deliberately creating a new rule of procedure that ignores or deviates from the over-emphasised principle of law on the limits of parties on appeal as laid down by the Supreme Court in National Investment v. Thompson Organisation and Others (1969) NMLR. 99 at 103.

Particulars

(Omitted)

The Justices of the Court of Appeal erred in law by making a new case for the appellant before it and granting reliefs not claimed in the appeal before the court.

The parties filed their respective briefs of argument wherein the legal submissions relied on were set out. The court called on the parties to briefly elaborate on and highlight the points they would like to emphasise. Mrs. Obe, learned counsel to the appellant, submitted that the issues for determination were four fold as set out at page 4 of her brief. I am not happy with the formulation. It is long winded in view of the issue raised at the trial Court and the order made by the Court of Appeal. Simply put, the issue for determination is whether the claims of the plaintiff/appellant filed before the Idanre/Ifedore Customary Court Grade 1 were within the jurisdiction of that court. The respondent’s formulation of the issue for determination accords with this. As set out in the respondent’s brief, it simply reads:

“The issue of jurisdiction is the main issue for determination right from the inception of this case.” Submissions of Counsel:

Learned counsel for the appellant submitted that the Court of Appeal erred in law in holding that the claims being for a declaratory judgment, the Idanre/Ifedore Customary Court Grade 1 has no jurisdiction to entertain the claim. She further submitted that the point that the customary court had no jurisdiction to make or grant declaratory orders and judgments was not taken in the High Court but only in the Court of Appeal and so the Court of Appeal should not have entertained the ground, since leave to raise new points was not obtained. She then cited in support the dictum of the Supreme Court in National Investment Organisation (1969) NMLR. 104 (per Lewis, J.S.C.); Jonah Abbey Katio & Ors. v Chief M. D. Daniel-Katio (1975) 2 SC. 15 at 21 and 22; Chief Victor Woluchem & Ors. v. Chief Simon Gudi & Ors. (1981) 5 Sc. 291 at 319-320; Etowa Enang & Ors. v. Fidelis Iko Adu (1981) 11-12 SC. 25 at 36. She contended that both the parties and the court are bound by pleadings and the grounds of appeal and referred to Blay v. Pollard & Anor. (1930) 1 KB 628, 634. Katio v. Daniel-Katio (1975) 2 SC. 15 at 21. She finally submitted that the Court of Appeal erred in entertaining arguments on ground 1(b) of the grounds of appeal. She contended that the cases of Kuri & Anor. v. Jibowu & Anor. (1972) 1 All NLR. (Part 11) page 180 at 192 and Odiase & Anor. v. Agho & Ors. (1972) 1 All NLR. (Part 1) 170 relied on by the Court of Appeal were inapplicable and irrelevant. The only relevant authority was Kuti & Anor. v. Mrs. S. Balogun (1978) 1 SC. 53 at 60-61 which lays down the procedure to be followed when the Court of Appeal is inclined to take a new point on its own.

The court can take new points suo motu when it is on fundamental issues as to whether or not the trial Court has jurisdiction Odiase & Anor. v. Agho & Ors. (1972) 1 All NLR. (Part 1) 170.

In reply, Mr. Adedoja, learned Counsel for the respondent submitted that what dominated the case throughout the proceedings in the Idanre/Ifedore Customary Court Grade 1, the High Court and the Court of Appeal was the issue of jurisdiction. The issue of jurisdiction, he submitted, could be taken at any stage of the proceedings by any court whether at first instance or on appeal. In support of this submission, he referred to the decision of this Court in Buraimoh Oloriode & Ors. v. Simeon Oyebi & Ors. (1984) 5 SC. 1 at 32-33; Ezomo v. Oyakhire (1985) 2 Sc. 260 at 282; Aka v. Ejekwemu (1976)11 SC. 85 at 86-91; and Moore v. Tayee 2 WACA 43 at 45. It is saddening that this protracted litigation on the issue of jurisdiction has deprived the substantive matter of a hearing since 1980. The parties should have moved the courts for accelerated hearing so as to obtain a quick determination and disposal of the issue and save much valued time for hearing.

The issue of jurisdiction is very fundamental as it goes to the competence of the court or tribunal. If a court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the court to embark on the hearing and determination of the suit, matter or claim. It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the court of first instance or in the appeal courts. This issue can be raised by any of the parties or by the court itself suo motu. When there are sufficient facts ex facie on the record establishing a want of competence or jurisdiction in the court it is the duty of the Judge or Justices to raise the issue suo motu if the parties fail to draw the court’s attention to it, see Odiase v. Agho (supra).

There is no justice in exercising jurisdiction where there is none. It is injustice to the law, to the court and to the parties so to do. I am therefore unable to accept appellant’s Counsel’s submission that the Court of Appeal should not have entertained ground 1(b) which raised the issue of jurisdiction simply because it was not so raised in the High Court. Once an issue of jurisdiction is raised, it should be examined in all its ramifications. It should not be compartmentalized and subjected to piecemeal examination and treatment. The very many faces of jurisdiction should come under the searchlight and pronounced upon.

I agree with learned Counsel for the respondent that it is only the issue of jurisdiction that has dominated proceedings in this matter in all the three courts below. The jurisdiction of a Customary Court is not one that should have posed such a complex problem as the courts below have made it appear.

Customary Courts apart from the Customary Court of Appeal are not the creation of the Constitution of the Federal Republic of Nigeria 1979. The States High Courts are and their jurisdiction is spelt out in section 236(1). Customary Courts however, where they exist are the creatures of statutes or laws promulgated by the various States Legislatures. Those statutes spell out the jurisdiction the various grades of Customary Courts are to exercise. The Customary Court Law of Ondo State is one such law. So, when the issue of jurisdiction was raised in the trial Court, the President and members of the court should have turned to the relevant section of the Customary Court Law (section 17(1) and (2) and Second Schedule) and see whether the claim set out above falls within the jurisdiction prescribed. I observe that the Court of Appeal endeavoured to do this but got mixed up with the jurisdiction of the High Court prescribed by the High Court Law before the 1979 Constitution and failed to note the area of conflict with the 1979 Constitution.

What then is the jurisdiction of Idanre/Ifedore Customary Court Grade 1 The jurisdiction and powers of each grade of Customary Court are by section 17(3) of the Customary Courts Law (Cap. 37 of the Law of Ondo State 1978) set out in the Second Schedule to the said law. In respect of Grade 1, they are as follows:

“(1) Unlimited jurisdiction in matrimonial causes and matters between persons married under Customary Law or arising from or connected with a union contract under Customary Law (but excluding any such cause or matter relating to, arising from or connected with a Christian marriage as defined in section 1 of the Criminal Code;

(2) Unlimited jurisdiction in causes and matters relating to the custody of children under Customary Law; Unlimited jurisdiction in land causes and matters; Jurisdiction in causes and matters relating to inheritance upon intestacy the administration of and grant of power or authority to any person to administer intestate estates under Customary Law where the value of the property does not exceed five thousand Naira;

(5) Jurisdiction in other causes and matters under the law to be administered by the court in accordance with section 20 where the amount of debt demands, or damages does not exceed five

thousand Naira.

Examined in the light of the above, the plaintiff/appellant’s claim does not appear to fall within any of the five causes of matters in respect of which jurisdiction has been conferred. In the 1958 Customary Court Law of Western Region, the jurisdiction of Grade A Customary Court was not so limited as the jurisdiction of Grade 1 Customary Court now is. Grade A Court had unlimited jurisdiction in all civil matters under Customary Law. In Part 1 of the Second Schedule to the Customary Courts Law Cap 31 Laws of Western Nigeria 1959, the civil jurisdiction prescribed for Grade A courts reads:

“Unlimited jurisdiction in all civil causes and matters arising under the law to be administered by the court in accordance with section 19”

And section 19 of the Customary Courts Law provides that “Subject to the provisions of this law, a Customary Court shall administer:

(a) the appropriate Customary Law specified in section 20 in so far as it is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by necessary implication with any written law for the time being in force;

(b) the provisions of any written law which the court may be authorized to enforce by an Order made under section 24;

(c) the provisions of any enactment in respect of which jurisdiction is conferred on the court by that enactment; and

(d) the provisions of all rules and bye-laws made by a local government council or having effect as if so made, under the provisions of any enactment and in force in the area of jurisdiction of the court.”

Section 20(1) and (2) of the Customary Courts Law defines the appropriate Customary Law in land matters and in matters arising from inheritance. We are here concerned only with the provisions of the Customary Courts Law of Ondo State and the brief reference is to emphasise the difference in jurisdiction conferred by the former or previous Customary Court Law of the Western Region applicable to Ondo State and the present Customary Court Law of Ondo State.

Since the plaintiff/appellant instituted this action in 1980, it is the state or the Ondo State Customary Courts Law that is relevant. Under that law, i.e. the Customary Courts Law Cap 33 Vol. 2 Laws of Ondo State 1978, section 17(3) and the Second Schedule sets out the jurisdiction of the court and section 19 sets out the law to be administered. Section 19 reads:

“Subject to the provisions of this Law, Customary Court shall administer

(a) the appropriate Customary Law specified in section 20 in so far as it is not repugnant to the rules of natural justice, equity and good conscience nor incompatible either directly or indirectly or by necessary implication with any written law for the time being in force;

(b) the provision of any enactment in respect of which jurisdiction is conferred on the court by that enactment; and

(c) the provisions of all rules and by-laws made by a local government councilor having effect as if so made under the provision of any enactment and in force in the area of jurisdiction.

Although there is a High Court Law of Ondo State which was promulgated before the 1979 Constitution, the jurisdiction of the court set out in sections 9 and 10 has been superseded by the jurisdiction of the States High Court set out in section 236(1) of the Constitution. I have already referred to these sections earlier on in this judgment but in the interest of clarity and emphasis, I will set them out again. Sections 9 and 10 of the High Court Law Cap 45 Vol. III Laws of Ondo State read:

9. To the extent that such jurisdiction may be conferred by the State Legislature the High Court shall be a superior court of record, and in addition to any other jurisdiction conferred by this or any other law or Act shall within the limits and subject to the provisions of this Law, possess and exercise all the jurisdiction, powers and authorities which are vested in or capable of being exercised by Her Majesty’s High Court of Justice in England.

10(1) To the extent that such jurisdiction may be conferred by the State Legislature the jurisdiction by this law vested in the High Court shall include all the civil jurisdiction which at the commencement of this law, was or at any time afterwards may be exercisable in Ondo State for the judicial hearing and determination of matters in difference or for the administration or control of property and persons, and also all the criminal jurisdiction which at the commencement of this law was or at any time afterwards may be there exercisable for the repression or punishment of crimes or offences or for the maintenance of order and all such jurisdiction shall be exercised under and according to the provisions of this law and not otherwise.

Provided that, except in so far as the Governor may by Order in Council otherwise direct and except in suits relating to the administration of intestate estates, transferred to the High Court under the provisions of section 34 of the Customary Courts Law; the High Court shall not exercise original jurisdiction on any matter which is subject to the jurisdiction of a Customary Court relating to marriage, family status, guardianship of children and inheritance or disposition of property on death. (2) The jurisdiction of the High Court shall include such jurisdiction as may be vested in it by Federal Law.”

This was the jurisdiction under the 1963 Constitution. The 1979 Constitution made a radical change, severed the ties to the jurisdiction exercised by Her Majesty’s High Court and vested the states High Court with unlimited jurisdiction and without any proviso. The jurisdiction thus prescribed by section 236(1) of the 1979 Constitution reads:

“Subject to the provisions of this 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 proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceeding involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person;

(2) The reference to civil or criminal proceeding in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the court in exercise of its appellate or supervisory jurisdiction.”

From the of the section, it is clear that the State Legislature can only add to the jurisdiction of the court. It cannot subtract from or reduce the jurisdiction of the court and any law purporting to do so is void to the extent of its inconsistency.

When the learned Justice of the Court of Appeal made a diversion to consider the proviso to the High Court Law his attention was not drawn to the fact that that proviso no longer existed in the jurisdiction prescribed for the State High Court by the 1979 Constitution.

Even then, it appears that the Customary Courts Law has carefully omitted to give jurisdiction to the Customary Courts in causes and matters relating to family status and family membership. The claims relevant to this appeal are not matrimonial causes nor do they relate to land matters nor are they causes or matters relating to custody of children nor can they be classified as causes or matters relating to inheritance upon intestacy or the administration of intestates’ estate under Customary Law.

Status has been defined as condition or position with regard to law as her status is that of a married woman. (see Websters Twentieth Century Dictionary unabridged p. 1778 2nd edition).

Member has also been defined as a person belonging to some association, society, community, party etc. (see ibid p.1223). The status of an individual used as a legal term means the legal position of an individual in or with regard to the rest of the community [see Niboyet v. Niboyetf (1878) 4 PD1 CA per Brett, L.J. at p. 11.

Griffith, C.J. in Daniel v. Daniel (1906) 4 CLR. 563 at p. 566 attempted to give an exhaustive definition of status. Therein he said:

“Without pretending to give an exhaustive definition, I apprehend that the term “status” means something of this sort; a condition attached by law to a person which confers or affects or limits a legal capacity of exercising some power that under other circumstances he could not or could exercise without restriction. That definition as I have said, may not be exhaustive, but it indicates, at any rate, the sort of thing that is meant.”

Marriage is a status and a decree dissolving marriage is a judgment upon status. Family status therefore refers to the standing or rank of the person within the family. Examples are Head of the Family, Husband. Wife.

As regards ‘member’. one may be a member of a company, a member of a family, a member of a household and a member of an institution.

The word ‘family’ in the Nigerian con includes blood relationship in its widest connotation even to the 100th degree or relationship by marriage. It thus means in relation to a person:

(a) his wife, son, daughter. father, mother; and

(b) any person whether related to him or not who is wholly or mainly dependent upon him.

It is wider than in the English concept.

“Now what is……..(the) family except those who reside with him of whom he is pater families; or head. The son is one of them so long as he remains under his father’s protection but when he becomes the head of a family himself, he is emancipated.” R. v. Darlington (Inhabitants) (1792) Nobn 124 per Lord Kenyon. C.J. at pp. 128, 129.

It is clear as I said earlier that the claims instituted by the appellant do not fall within any of the five heads of jurisdiction prescribed for Idanremedore Customary Court Grade 1.

The appeal therefore fails and is hereby dismissed. The decision of the Court of Appeal striking out the suit is hereby affirmed.

A. NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother, Obaseki, J.S.C. and I entirely agree with his reasoning and conclusions.

The point at issue in this appeal related to jurisdiction of the Idanre/Ifedora Grade 1 Customary Court to adjudicate on the reliefs claimed there by the plaintiff/appellant. These reliefs included particularly reliefs 1, 2 and 3,

“1. Declaration that the defendant is not a member of Sapetu family of Igbara Oke.

2. Declaration that the defendant has no claim to the rights, privileges, honour and estate of the said Sapetu family of Igbara Oke.
3. Injunction restraining the defendant from parading himself as a member of the said Sapetu family of Igbara Oke.” (italics mine)

Under Section 17(3) of the Customary Courts Law, Cap 33 of the Laws of Ondo State, the jurisdiction of Customary Courts Grade 1 include the following:

“1. Unlimited jurisdiction in matrimonial causes and matters between persons married under Customary Law or arising from or connected with a union contract under Customary Law (but excluding any such cause or matter relating to, arising from or connected with a Christian marriage as defined in Section 1 of the Criminal Code;

2. Unlimited jurisdiction to causes and matters relating to the custody of children under Customary Law;
3. Limited jurisdiction in land matters;
4. Jurisdiction in causes and matters relating to inheritance upon intestacy, the administration of, and the grant of power or authority to any person to administer intestate estates under Customary Law where the value of the property does not exceed five thousand naira;
5. Jurisdiction in other causes and matters under the law to be administered by the court in accordance with Section 20 where the amount of debt, demand or damages does not exceed five thousand naira.”

It is clear, as indeed the Court of Appeal found, that paragraphs 1, 2 and 4 above which only can be considered as near the reliefs claimed by the plaintiff are any way different from the reliefs claimed. Those paragraphs, in my view too, deal with issues of status, e.g. marriage etc. That is a different thing from membership of a family which is the main plank in the claims. This must fall within the jurisdiction of the High Court. I see no where to fault the statement of Ajose Adeogun, J.CA. who held that,

“on the face of it the first leg of the claim relates to a determination of family membership. That, of course, is not the same question as determination of a family status which is specifically excluded from the original jurisdiction of the High Court (See Sections 9 and 10 of the High Court Law, Cap. 45 of the Laws of Ondo – particularly the proviso to the latter)”

As to the dispute that the question of jurisdiction was not taken in the High Court, it is now trite law that, jurisdiction being so fundamental, can be taken at any stage of the proceedings. See Buraimoh Oloriode & Ors v. Simeon Oyehi & Ors (1984) 5 S.C 132-33; Ezomo v. Oyakhaire (1985) 2 S.C. 260, 282 and even Bronik Motors v. Wema Bank Ltd. (1983) 1 S.C.N.L.R. 296.

The appeal is devoid of merit and I hereby dismiss it. I endorse the order for costs made by Obaseki, J.S.C.

S. KAWU, J.S.C.: I have read in draft the lead judgment of my learned brother, Obaseki, J.S.C. which has just been delivered. I am in complete agreement with his reasoning and his conclusion that the appeal lacks merit and should be dismissed.

The simple issue which arose for determination in this appeal was whether the Idanre/Ifedore Customary Court Grade I had the necessary legal competence to entertain the plaintiffs claims filed before it, and having perused the provisions of S.17(3) of the Customary Courts Law, Cap. 33, Volume 2, Laws of Ondo State 1978, I am satisfied that that Customary Court lacked jurisdiction to do so.

I will dismiss the appeal and affirm the decision of the Court of Appeal striking out the plaintiff’s suit.

C. A. OPUTA, J.S.C.: I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother Obaseki, J.S.C. and I am in complete agreement with his reasoning and conclusion that this appeal lacks merit and should accordingly be dismissed.

The Plaintiff now Appellant sued the Defendant/Respondent in the Idanre/Ifedore Grade 1 Customary Court, holden at Igbara-Oke in Ondo State. The action was filed in January 1980 after the coming into effect of the 1979 Constitution. This date may have some significance as Section 236(1) of the 1979 Constitution gave the State High Court unlimited jurisdiction. The main issue contested all along from the Customary Court, through the High Court then the Court of Appeal to the Supreme Court was whether or not the Idanre/Ifedore Grade 1 Customary Court had jurisdiction to entertain the Plaintiffs claims. The Customary Court heard the Defendant’s objection and decided it had jurisdiction. On appeal, the High Court, Afonja, J. of the Ondo High Court upheld the decision of the Customary Court and dismissed the Defendant’s appeal. On further appeal to the Court of Appeal the situation changed. The Court of Appeal Benin Division -(Omo-Eboh, Ajose-Adeogun and Jacks, JJ.C.A.) allowed the Defendant’s appeal and held that the Customary Court of first instance had no jurisdiction. The Plaintiff having won in the Customary Court and in the Ondo State High Court lost in the Court of Appeal. He has now appealed to the Supreme Court.

The only issue really in dispute, an issue now calling for determination, is still the issue of jurisdiction. Was the Court of Appeal right in holding that the trial Customary Court had no jurisdiction or Was the High Court right in holding that it had jurisdiction That is the question. Several aspects of jurisdiction had been finally decided by this Court as follows:-

1. The issue of jurisdiction is so radical that it forms the foundation of adjudication. If a Court lacks jurisdiction, it also lacks the necessary competence to try the case at all. A defect in competence is fatal, for the proceedings are null and void ab initio, however well conducted and well decided they may otherwise be defect in competence is extrinsic to adjudication. The Court must first of all be competent, that is, have jurisdiction, before it can proceed on any adjudication:- Madukolu & Ors v. Nkemdilim (1962) 1 All N.L.R. 587 at p.595.
2. A challenge to the jurisdiction of any Court can be made at any stage of the proceeding:; and can be taken for the very first time in the Supreme Court. Being such a vital issue, the Court itself suo motu can raise the issue: Ajao v. Alao (J986) 5 N.W.L.R. 802; Odiase & anor. v. Agho & ors.(1972) 1 All N.L.R. (Part 1) 170; Sofekun v. Akinyemi (1981) 1 N.C.L.R. 135.
3. The jurisdiction of any Court is granted aliunde – from without and not from within. Courts are creatures of statutes and it is the statute or law creating the Court that determines and defines its jurisdiction.
4. The Customary Court Grade I is an inferior Court and the rule is that nothing shall be intended to be within the jurisdiction of an inferior Court but that which is so expressly stated. As far as a superior Court is concerned, the reverse is the case. Nothing shall be intended to be out of the jurisdiction of a superior Court but that which specifically appears to be so.

With the above as a necessary preamble, I will now tackle the only issue for determination.

The first step is to look at the jurisdiction conferred by statute on the Idanre/Ifedore Grade J Customary Court. The second step is to look at the claims before that Court. The third and final step is to examine the claims against the jurisdiction to find out whether those claims fall within or without the jurisdiction of the Customary Court of first instance. The jurisdiction conferred on the Idanre/Ifedore Customary Court Grade 1 by Section 17(3) of the On do State Customary Courts Law Cap 33 of 1978 as set out in the Second Schedule is as follows:-

“(1) Unlimited jurisdiction in matrimonial causes and matters between persons married under Customary Law or arising from or connected with a union contract under customary law (but excluding any such cause or matter relating to, arising from or connected with a Christian marriage as defined in section 1 of the Criminal Code).

(2) Unlimited jurisdiction in causes and matters relating to the custody of children under Customary Law.

(3) Unlimited jurisdiction in land matters.

(4) Jurisdiction in causes and matters relating to inheritance upon intestacy, the administration of, and the grant of power or authority to any person to administer intestate estates under customary law where the value of the property does not exceed five thousand naira.

(5) Jurisdiction in other causes and matters under the law to be administered by the Court in accordance with section 20 where the amount of debt, demand or damages does not exceed five thousand naira.”

The claims before the trial Customary Court were as follows:-

“(1) declaration that the defendant is not a member of Sapetu family of Igbara-Oke;

(2) declaration that the defendant has no claim to the rights, privileges, honour and estate of the said Sapetu family of Igbara-Oke;

(3) injunction restraining the defendant from parading himself as a member of the said Sapetu family of Igbara-Oke;

(4) further injunction restraining the defendant, his servants and agents from doing anything inconsistent with the rights, interests and entitlements of the Sapetu family;

(5) special damages of N200.00 for parading himself as indication (sic) in paragraph 3 above.”

Now looking at the claims against the background of the jurisdiction granted by statute, it is quite obvious that the claims do not relate to a matrimonial cause properly so called. They do not raise any issue relating to marriage under Customary Law, nor do they relate to “custody of children under Customary Law”; nor do they have anything to do with a land dispute, nor do they raise issues of “inheritance upon intestacy”. There was no claim for “debt, demand or damages not exceeding five thousand naira.” From this comparative analysis, it is clear that all the five claims of the Plaintiff/Appellant cannot be proceeded with under any head of jurisdiction granted by Section 17(3) of the Ondo State Customary Court Laws Cap 33 of 1978. That being so, the Idanre/Ifedore Customary Court Grade 1 lacked the competence to entertain the Suit. That Court was wrong when it held against the objection of the Defendant that it had jurisdiction. It had none.

The issue of jurisdiction being radical and the foundation of adjudication such an issue cannot be defeated by the provisions of Order 7 Rule 2 of the Court of Appeal Rules. If an issue can be taken up by the Court suo motu, leave of Court to raise such an issue becomes rather redundant: Samuel Fadiora v. Festus Gbadebo & anor. (1978) 3 S.C. 219. All Rules of Court are made in aid of justice. That being so, the interest of justice will have to be given paramountcy over any Rule compliance with which will lead to outright injustice. If there is no jurisdiction, any adjudication will be an exercise in futility. The Court of Appeal was right in dealing with this vital issue. It was also right in holding that the trial Customary Court lacked jurisdiction.

In the final result and for all the reasons given above and for the fuller reasons in the lead judgment of my learned brother Obaseki, J.S.C. which I now adopt as mine, this appeal has to be dismissed and it is hereby dismissed accordingly. Since the Customary Court has no jurisdiction, the proper order is that of striking out. This was the Order made by the Court of Appeal and the Court was right. N500 costs to the Respondent.

A. B. WALI, J.S.C.: Chief Daniel Awodele Oloba (for and on behalf of Sapetu Family) filed a suit in the Idanre/Ifedore Grade I Customary Court in Ondo State claiming against Isaac Olubodun Akereja as follows:

1. Declaration that the defendant is not a member of Sapetu family of Igbara-Oke.
2. Declaration that the defendant has no claim to the rights, privileges, honour and estate of the said Sapetu family of Igbara Oke.
3. Injunction restraining the defendant from parading himself as a member of the said Sapetu family of Igbara-Oke.
4. Further injunction restraining the defendant his servants and agents from doing anything inconsistent with the rights, interests and entitlements of the Sapetu family of Igbara-Oke.
5. Special damages N200.00 for parading himself as indication (sic) in paragraph 3 above.”

After the defendant was served with the plaintiffs claim he filed a Motion on Notice objecting to the jurisdiction of the Idanre/Ifedore Grade Customary Court on the following grounds-

1. “That the plaintiffs claims are based on Sapetu Chieftaincy Title and so this Court has no jurisdiction over the plaintiffs case under the Chiefs’ Law Cap 19 Laws of Western Region as applicable to Ondo State.”
2. “That the estate is inheritance of Sapetu family inherited from generation to generation and the value today is more than N50,000.00”
3. “That the jurisdiction of this Honourable Court in matters of inheritance is limited to N5,000.00 under the Customary Court Edict of 1978.”

The Motion was argued and the court ruled against the defendant and concluded-

“The substantive case No.1/80 between the plaintiff and the defendant is hereby declared for trial.”

Against this Ruling, the defendant appealed to the High Court of Ondo State sitting at Akure. The appeal was dismissed. The Defendant further appealed to the Court of Appeal, Benin. Before the Court of Appeal three grounds of appeal were filed and canvassed. In a considered judgment delivered by Ajose Adeogun, J.C.A., with which both Eboh and Jacks, JJ.C.A. concurred, the learned Justice concluded-

“… that all the reliefs being sought against the appellant are declarations as to his family membership, rights, interests and entitlements. They clearly do not fall within the jurisdiction of the customary court …………………………………

Consequently, the judgment of the appellate High Court in this matter given on 7th January 1982, confirming in effect the ruling of Idanre/Ifedore Grade I Customary Court is hereby set aside. Instead, it is ordered that the case before the said Customary Court in Suit No.IICC. G.I. 1/80 filed on 31st December 1979 be and is hereby struck out for want of jurisdiction.”

The plaintiff dissatisfied with the decision above has now appealed to this Court. He has filed a number of grounds of appeal and parties have settled and exchanged briefs.

For the purpose of this appeal both the plaintiff and the defendant shall hereinafter be referred to as the appellant and the respondent respectively.

I have had the privilege of reading in advance, the judgment of my learned brother Obaseki, J.S.C. and I entirely agree with his reasoning and the resultant conclusions. I however wish to add the following by way of emphasis.

Before the Court of Appeal, the issue for a Customary Court to entertain complaints seeking for a declaratory judgment was raised by the Defendant/Respondent in Ground 1(b) of the Grounds of Appeal. It reads-

“(b) The trial Court has no jurisdiction to pronounce declaratory judgment or orders since the jurisdiction of the trial Court was specified under Ondo State Customary Courts Law 1980.”

Learned Counsel for the appellant (then plaintiff/respondent) objected to the issue raised for the first time in the Court of Appeal in the ground of appeal quoted (supra) on the ground that leave of that Court to do so was not first sought and obtained. This was over-ruled. The arguments presented by learned Counsel on both sides for and against Ground 1(b) was then considered, and on that score the decisions of the trial Court and the High Court were set aside and the case was struck out for want of jurisdiction.

On appeal to this Court by the appellant/plaintiff the same issue was raised and argued. In his brief learned Counsel for the appellant submitted that

“leave having not been sought and obtained to file additional ground of appeal or obtained leave to amend grounds of appeal the Court of Appeal was in error to have acted on the new ground 1(b) of the declaratory judgment.”

The learned Justice of the Court of Appeal in deciding this issue referred to and relied on National Investment and Properties Company Ltd. v. The Thompson Organisation Ltd. & 2 Ors. (1969) N.M.L.R. 99, wherein Lewis, J.S.C. said-

“The whole purpose of grounds of appeal is to give notice to the other side of the case they have to meet in the appellate court and if an appellant wishes to crave in aid errors or misdirections not falling within his grounds of appeal as filed, he must either obtain leave to file additional grounds of appeal or obtain leave to amend his grounds of appeal.”

and rightly in my view, observed thus –

“My own understanding of the above-quoted observation of the very learned Justice of the Supreme Court is that the door is not necessarily permanently closed against any error or misdirection not included in original grounds of appeal before an appellate court. Such may still be prayed in aid at the hearing of the appeal provided necessary steps are taken to amend the original grounds or file additional grounds. I venture to add that leave to take any such steps will almost certainly be granted, particularly where the omitted error or misdirection raises a substantial point of law.”

……………………………

“But since, as stated in the above-quoted observation of Lewis, J.S.C. the whole purpose of grounds of appeal is to give notice to the other side as to the case to be canvassed at the hearing of an appeal, I believe that opportunity can still be taken in a second or further appeal to pray in aid any error or misdirection not originally indicated or notified. This was what the appellant herein did: and I hold the view that since the respondent already had sufficient notice of the new ground and indeed replied thereto, there could have been no surprise or injustice to the other side.”

The jurisdiction and powers of various grades of customary Courts in Ondo State are by Section 17(3) of the Customary Courts Law Cap 33 of the Laws of Ondo State set out in the Second Schedule to that Law, and in respect of Customary Court Grade I are as follows:-

“(1) Unlimited jurisdiction in matrimonial causes and matters between persons married under Customary law or arising from or connected with a union contract under Customary law (but excluding any such cause or matter relating to, arising from or connected with a Christian marriage as defined in section 1 of the Criminal Code);

(2) Unlimited jurisdiction in causes and matters relating to the custody of children under customary law;

(3) Unlimited jurisdiction in land matters;

(4) Jurisdiction in causes and matters relating to inheritance upon intestacy the administration of, and the grant of power or authority to any person to administer intestate estates under customary law where the value of the property does not exceed five thousand naira.”

(5.) Jurisdiction in other causes and matters under the law to be administered by the court in accordance with section 20 where the amount of debt, demand or damages does not exceed five thousand naira.”

The declaration being sought i.e. involving membership of Sapetu family of Igbara-Oke does not fit within the scope of jurisdiction of Customary Court Grade 1 quoted (supra). There is no doubt that the issue raised in ground 1(b) is a fundamental one as it touches on the competence of the Customary Court to entertain jurisdiction on the matter. In Odiase & Anor. v. Agho & Ors. (1972) 1 ALL N.L.R. (PART 1) 170, particularly at page 176, the Supreme Court expressed the following opinion as regards taking a fundamental point suo motu –

“This Court is certainly entitled in its discretion to take points suo motu if it sees fit to do so, but it is not the normal practice, and it is done only if we think in the special circumstances of the case that justice demands it, such as on a fundamental issue as to whether the trial Court has jurisdiction.”

(italics supplied for emphasis).

In the present appeal, though the issue was not properly raised before the appellate High Court, learned Counsel for the Respondent became wiser on his appeal to the Court of Appeal when he specifically raised it. It is so fundamental that it could not be ignored and the present appellant (then the respondent) had full knowledge of that and was therefore not taken by surprise. From the materials placed before the Court of Appeal, it has all the facts bearing on the issue and that no satisfactory explanation could have been given in the court below if it had been so raised – Samuel Fadiora & Anor. v. Festus Gbadebo & Anor. (1978) 3 S.C.291. The Court of Appeal exercised its discretionary power both judiciously and judicially when it suo motu, and in the best interest of justice, allowed the fundamental issue raised, to be argued – Aminu Akindele Ojora & Ors. v. Lasisi Ajibola Odunsi (1964) N.M.L.R. 12 and Obadiaru v. Grace Uyigue & Anor. (1986) 3 S.C. 39.

For these and the fuller reasons contained in the lead judgment of my learned brother Obaseki, J.S.C., this appeal fails and it is dismissed. The order of striking out the suit made by the Court of Appeal is confirmed, with N500.00 cost to the Respondent.

Appeal Dismissed.

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SC.52/1986