Francis Idjakpa & Anor V. Ovie Ajigbereno (2008)
LawGlobal-Hub Lead Judgment Report
ALI ABUBAKAR BABANDI GUMEL, J.C.A.
This is an appeal against the Ruling of the Delta State High Court, Orerokpe Judicial Division in Suit No. HOR/15/88. The action leading to this appeal was commenced by the Appellants as Plaintiffs for themselves and on behalf of Idjakpa family of Kokori against the Respondent as the defendant. Later the defendant became a defendant for herself and also, in a representative capacity, on behalf of Omokoro family of Ushue Street, Kokori. The claim as endorsed on the amended statement of claim of the plaintiffs dated 12/12/94 was for a declaration of title in respect of a piece of land in Kokori and for damages for trespass as well as an order of perpetual injunction to restrain the defendants and/or their agents or privies from further acts of trespass unto the said piece of land.
The claim of the plaintiffs is based on traditional history and Kokori Native Law and Custom. According to the Plaintiffs, their father was Idjakpa who had one wife, Mrs. Etakpobunor. Between them they had 5 children namely; Francis, Patrick, Beauty, Felicia and Jonathan. Francis and Patrick being the Plaintiffs. The land in dispute known as Uluilegbe land, in Kokori Inland, was founded by Idjakpa. The father of Idjakpa was Akpojotor of Kokori Inland. The land was situated in an area that was taken to be a dreadful forest. It was the belief of the people of Kokori that anyone who approached this land would die of a mysterious illness. However, the Plaintiffs’ father, Idjakpa conquered this land and cleared it of its virgin forest.
According to the Plaintiffs, under Kokori Native Law and Custom the first person to clear an area of its virgin forest automatically has title to that land and was entitled to bring it under cultivation and upon his death it would pass to his children in common. It was also the case of the Plaintiffs that Idjakpa, having conquered the land in dispute, planted rubber trees on some parts of it while he cultivated other crops such as cassava, Yams etc on the other parts of the land. He continued this for over 50 years without any one challenging him or later any member of his family. Idjakpa died in 1970 and the mother of the plaintiffs, who were young, managed and collected proceeds from the land for the up keep and education of the children of the deceased Idjakpa. In 1974, the defendant came and claimed title to the disputed land on the basis that she was a relation of Idjakpa. Upon entry into the land the defendant asserted her right to it and chased the plaintiffs out of it.
In an amended statement of defence dated 23/2/95, the defendant denied most of the material averments of the plaintiffs and urged the Court to dismiss the action for being frivolous, vexatious and an exercise in futility.
Issues having been joined between the parties, the matter went to trial after series of interlocutory applications. While the matter was on trial, indeed after all witnesses had testified and all that was left was for respective learned Counsel to address the Court on all the evidence adduced, the defendant brought an application dated 18/2/99 to dismiss the Suit. The grounds for this application were: –
- The land the subject matter of the Suit is located in a rural area of Delta State; and
- The Area Customary Court has exclusive jurisdiction over declaratory customary title to land in rural areas.
This application was supported by a 7 paragraph affidavit deposed to by one Moji Okesina, a Secretary in the law office of the defendant’s Counsel. This was argued by learned Counsel to the defendant/applicant on 29/3/99. Learned Counsel to the Plaintiffs/Respondents did not file any response to the application and did not appear in Court to argue against the application, even though he was duly served with the application and had notice when it was to be argued. In a well considered ruling dated 14/4/99, the learned trial Judge, Ehiwario, J. held inter alia that: –
“The land, subject matter of dispute in this case, is located a Kokori-Inland; an area yet to be designated an Urban Area is under the management and control of the Local Government Authority. This Court therefore, by virtue of sections 39 and 41 of the Land Use Act has no jurisdiction over the dispute brought by the Plaintiffs/Respondents. The Plaintiffs are in a wrong forum. The Defendant/Appellant’s application is bound to succeed and I accordingly uphold it.
The Plaintiffs’ suit is therefore struck out with costs assessed at the sum of N1,000 in favour of the Defendant/Applicant.” – See page 18 lines 30-39 of record of appeal.
The Plaintiffs were dissatisfied with the decision of the learned trial Judge and therefore filed this appeal vide a notice of appeal filed on 27/4/99. This appeal is predicated on 2 grounds of appeal. In due course the Appellants, through learned Counsel Mr. H.A. Ororho filed the appellants brief of argument on 17/01/2000 but was deemed properly filed and served on 30/5/2000. The respondent failed or neglected to file any brief of argument. By an application dated and filed on 13/12/2000, Learned Counsel to the appellants sought for an order for this appeal to be heard and determined on the appellant’s brief alone. An order to that effect was made on 15/6/2002.
From the 2 grounds of appeal, the appellants formulated the following 3 issues for the determination of this appeal. They are: –
- Whether the land in dispute, the subject matter of this Suit situate in Kokori is situate in a rural area by virtue of Bendel State Legal Notice BSLN NO. 14 of 1988 – Designation of Urban Areas (Order) 1987 made pursuant to the Land Use Act.
- Whether the Defendant/Respondent has sufficiently discharge the burden to prove that the land, in dispute, situate in Kokori is in rural area andtherefore subject to Customary Right of Occupancy.
- Whether the trial Judge was right in entering the application for striking out by way of Demurrer.
When the appeal came before us for Hearing on 26th May, 2008, learned Counsel to the appellants adopted and relied on his brief of argument. He drew our attention to the case of ALHAJI KARIMU ADISA V. EMMANUEL OYINWOLA & ORS (2000) 6 SC (PT.11) 47; (2000) 10 NWLR (PT.674) 116, a judgment of the Supreme Court delivered on Friday 23rd June, 2000, nearly a month after the appellants’ brief was deemed properly filed and served. Learned Counsel also filed a notification of additional authority. He then urged us to rely on ALHAJI ADISA (supra) and allow this appeal.
I have carefully considered the issues formulated from the grounds of appeal. To me, both the grounds of appeal and the issues formulated therefrom appear to be little inelegant. There is therefore the need to recouch the issues in such a way that could properly be said to represent the complaint of the appellants against the judgment of the lower Court. From a proper reading of all the grounds of appeal and their particulars as well as the motion of the Defendant/Respondent before the lower Court for an order to strike out the suit, it appears to me that the central and key issue in this appeal is the current state of the law on the interpretation and application of the provisions of S.39 and S.41 of the Land Use Act 1978. The decision of the learned trial in his ruling of 14/4/99 touched on this crucial issue. I therefore now say that the sole issue that could determine this appeal one way or the other is: –
“What is the jurisdiction of the State High Courts in respect of the rights of occupancy under the Land Use Act 1978?”
This issue is related to ground one of the grounds of appeal and the first issue formulated by learned Counsel to the Appellants.
In his argument, learned Counsel referred to the Bendel State Legal Notice (BSLN) No. 14 of 1988 titled, Designation of Urban Area (Order) 1987, made pursuant to the Land Use Act. According to learned Counsel, this BSLN No. 14 is applicable to Delta State by virtue of S.4 of the States Creation (Transitional Provision) Decree No. 14 of 1991 and Sections 274 and 276 of the Constitution of the Federal Republic of Nigeria 1979, as amended by Decree 107 of 1993. Upon this reference, learned Counsel attacked the finding of the learned trial Judge at lines 11-17 at page 16 of the record and maintained that the learned trial Judge was in a grave error in his reading and interpretation of schedule XXVII of BSLN No. 14 of 1988. In the opinion of learned Counsel it is trite law that in construing a statute, the entirety of the legislation must be considered as far as possible. Learned Counsel argued that it is a holistic reading of a statute that could engender consistency and proper understanding of the intention of the legislature. He relied on the case of SAVANNAH BANK V. AJILO (1989) 1 NWLR (PT.97) 305. In a further effort, learned Counsel referred to and reproduced lines 31-32 at page 18 of the record of appeal and pointed out that the learned trial Judge erred by giving the provisions of BSLN No. 14 a narrow and restricted meaning and application. This, he attributed to a circumscribed interpretation and/or misinterpretation of the legal notice. In the opinion of learned Counsel a wider and liberal interpretation of the BSLN No. 14 would be more beneficial to the interest of justice and the true and proper intention of the legislature. He relied on the case of EGBE V. ALHAJI (1989) 1 NWLR (PT.128) 546.
The learned trial Judge considered the incidence of the 2 categories of land tenure systems in this country by virtue of the provisions of Sections 5 and 6 of the Land Use Act 1978. He rightly identified them as the statutory right of occupancy and customary right of occupancy and added further that each of these 2 tenure systems has its peculiar incidence. He made a further reference to S.3 of the Land Use Act. After discussing the enabling powers of a State Governor under S.3 (supra), the learned trial Judge went straight to what he considered as the proper effect of the provisions of Sections 39 and 41 of the Land Use Act vis-‘E0-vis the jurisdiction of the State High Courts and other Courts inferior and below them in the hierarchy of Nigerian Courts. It is based on his interpretation and application of a totality of these provisions of the Land Use Act and the BSLN No. 14 as well as the decision in SALATI V. SHEHU (1986) 1 SC 332 & OYENIRAN V. EGBETOLA (1997) 5 NWLR (PT.504) 22 that led the learned trial Judge to decide that the High Court lacked jurisdiction to entertain the suit of the appellants. Upon which he declined to entertain it and went further to strike it out.
The ruling of the lower Court, which is the subject matter of this appeal, was delivered on the 14/4/99. I wish to observe that the findings and conclusions of the learned trial Judge would have remained impeccable and without any blemish having regards to the State of the law as at that date as settled and defined by the Supreme Court in SALATI V. SHEHU (1986) 1 NWLR (PT.15) 198 and OYENIRAN & ORS V. EGBETOLA & ANOR (1997) S NWLR (PT.504) 122. Both of these decisions were concerned with the interpretation and application of Sections 3, 39 and 41 of the Land Use Act 1978. The Supreme Court was then of the view that under S. 41 of the Land Use Act, the High Court of a State has no original jurisdiction in proceedings in respect of customary right of occupancy granted by a Local Government in that State. The case of SADIKWU V. DALORI (1996) 5 NWLR (PT.447) 151 and the earlier decision of SALATI V. SHEHU (supra) were referred to and re-emphasised to arrive at this decision in OYENIRAN V. EGBETOLA (supra).
Learned Counsel to the Appellants has now referred to and drawn our attention to the case of ALHAJI KARIMU ADISA V. EMMANUEL OYEWOLA & ORS (supra). This decision of the Supreme Court was remarkable in a number of respects. It is of primary importance to note that the Supreme Court was called upon to consider and overrule its earlier decisions in SALATI, SADIKWU and OYENIRAN in ALHAJI ADISA. It may further be noted that a full Court of the Supreme Court saw good reason to overrule its decisions. It is this land mark judgment of the full Supreme Court that has now been brought to our attention. We are duty bound to consider it and give effect to it in all its ramifications. A reading of this decision will go along way to assist this Court in deciding this appeal. Learned Counsel did well in bringing it to our notice.
The facts in ALHAJI ADISA are not too dissimilar with the facts in the instant appeal to the extent that both disputes were predicated on pieces of land that were not clearly situate in designated urban areas or lands subject to statutory rights of Occupancy. Learned Counsel to the appellant in ADISA (supra) for the first time raised the issue of the jurisdiction of the High Court to entertain the suit having regards to the reliefs formulated by the plaintiff in view of Sections 39 and 41 of the Land Use Act 1978. The reliefs in ADISA are also similar to the reliefs herein to the extent that they pertain to a declaration of customary right of occupancy to land in dispute, damages for trespass and injunction. Upon the invitation of Counsel for the Supreme Court to overrule, its earlier decisions, the Chief Justice of Nigeria invited a number of learned Counsels as amici curiae to assist the Court in resolving the jurisdictional issue raised.
In resolving the appeal in ADISA (supra), the Supreme Court considered the provisions of S.274 (1) (a) and (5) and S.236 (1) of the 1979 Constitution together with Sections 39(1) (a) and 41 of the Land Use Act 1978 and unanimously held that it was beyond any argument that S.41 of the Land Use Act 1978 cannot oust the unlimited jurisdiction of the State High Court as provided by S.236 of the 1979 Constitution, as amended. After considering the circumstances under which it could depart from its earlier decisions, the Supreme Court acceded to the request of Counsel and overruled its earlier decisions in SALATI V. SHEHU and OYENIRAN V. EGBETOLA. Before overruling the decisions, the Supreme Court referred to and analysed the various circumstances that led to those decisions.
The proper understanding of the law as at today is that when a question arises as to the jurisdiction of the High Court in proceedings relating to customary rights of occupancy, the approach is first to have regard to the amplitude of the jurisdiction granted the High Court in S.236 of the 1979 Constitution, and then inquire 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 an emphasis and to set the matter straight the Supreme Court explained that there is 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 S.41 a starting point of inquiry even though there is nothing therein which makes the jurisdiction conferred on the Courts mentioned therein to be exclusive.
Based on the foregoing the ruling of the lower Court in the instant appeal cannot stand having regards to the current state of the law as was decided in ALHAJI ADISA (supra). Even if it is correct as decided by the learned trial Judge in the appeal herein that the land which is the subject matter of the dispute between the appellants and the respondent is situate in a non-urban area as provided under the BSLN No. 14, the High Court would still have jurisdiction to entertain the suit of the appellants.
In view of the reasons which I have discussed above, I see that there is merit in this appeal and I allow it. The ruling of the lower Court delivered on 14th April, 1999 is hereby set aside. Having decided this appeal on the basis of the lone issue formulated, I do not see any need to go into the remaining issues formulated by learned Counsel. I order that the suit of the appellants, as plaintiffs, be re-tried by another judge of the Delta State High Court other than EHIWARIO, J. Case is remitted to the Chief Judge of Delta State for re-assignment.
I order for N30, 000.00 (Thirty Thousand Naira) costs against the Respondent in favour of the Appellants.
Other Citations: (2008)LCN/2901(CA)
