Gabriel Siwoniku Vs Zaccheus Odufuwa (1969)

ADEMOLA, C.J.N.

The respondent in this appeal was the plaintiff in the Ijebu Divisional Grade A Customary Court in Suit JDGA/l8CL/62 in which his claim against the present appellant who was the defendant in that court read:-

“Plaintiff’s claim against the defendant is for:-

(1) Declaration that the defendant and his followers having broken away and conducted religious services and other activities outside the Cherubim and Seraphim Church premises situate at Odo Epe, Ososa (hereinafter referred to as the said Church) and embraced a sect other than the Eternal Sacred Order of the Cherubim and Seraphim of 75 Ibadan Street (East) Ebute-Metta become sesceders and are not entitled to use the said church building for the purpose of worship or any purpose whatsoever under the auspices of their new sect.

(2) £ 150 whereof:-

(a) £29.2s.2½d. is the balance of moneys given to defendant from time to time for safe keeping as treasurer of the said Church;

(b) £16.15s.0d. is the total value of chattels or things wrongly removed from the said Church and detained from plaintiffs by the defendant notwithstanding repeated demands;

(c) £104.2s.9½d. is general damages for acts of trespass committed at various times between September, 1961 and August, 1962 by the defendant upon the said Church premises which at all material times were in possession of plaintiffs.

(3) Injunctions restraining perpetually the defendant and his followers, their servants, agents, and/or persons claiming through them from entering worshipping or doing ‘any act whatsoever upon the said Church premises.”

A number of witnesses testified for both parties at the trial but although the case was heard to the end, yet it was not decided on the merits as the President of the Grade A Customary Court was of the view that he had no jurisdiction to entertain the action. In his judgment, the President stated as follows:-

“In my view this Court has no jurisdiction to entertain this suit, having ruled that Eternal Sacred Order of the Cherubim and Seraphim incorporated under the Companies Ordinance does not come within the provision of section 17 of the Customary Courts Law. The case is struck out.”

‘The plaintiff appealed against that decision to the High Court, Ijebu Ode, and on the 13th October. 1965, Ademola J. (as he then was) allowed the appeal without giving any reason for so doing other than stating that the Customary Court had jurisdiction, and remitted the case to the Customary Court to be tried by another President. The defendant has now appealed to this Court against the judgment of the High Court and the only point pursued before us on his behalf by Chief Okenla is that the President of the Customary Court was right in coming to the conclusion that he had no jurisdiction to entertain the action. His arguments were two pronged, viz:-

1. by virtue of section 17 of the Customary Courts Law, a Customary Court has jurisdiction over Nigerians. but, in the instant case, the plaintiff failed to establish that the members of the Eternal Order of Cherubim and Seraphim, Ososa, on behalf of whom these proceedings were instituted are Nigerians;

2. the claim as set out in the writ was not maintainable in a Customary Court. In the second limb of his argument. Chief Okenla referred us to the judgment of this Court in the case of S. A. Okuboyejo v. Z. A. Onasanya (SC.458/1964) dated the 22nd of April, 1966 and contended that the facts of that case are similar to those of the present case. In Okuboyejo’s case (supra), the facts were set out in the judgment as follows:-

“A piece of land was bought in 1947 with money subscribed by members of the ljebu Ode community of Cherubim and Seraphim, and on it the Ebenezer Church which forms the subject of the present action, was built. The transaction was carried out under customary law, and the named purchasers were the plaintiff, the defendant and two other persons ‘on behalf of the Holy Cherubim and Seraphim Society of ljebu Ode.’ The land has never been vested in any superior governing body, and whatever legally enforceable rights in it may exist belong to some member or members of the Ijebu Ode community. Differences of opinion developed in Ijebu Ode and for a time the plaintiff himself was estranged from most of the Cherubim and Seraphim there. In 1958 the defendant. as secretary, had some harvest envelopes printed which indicated that the Ijebu Ode Cherubim and Seraphim owed allegiance to a body incorporated in 1952 as the Sacred Cherubim and Seraphim Society of Nigeria. The plaintiff thereupon sued him in the ljcbu Ode Grade A Customary Court claiming:-

Plaintiff’s claim against the defendant is for:-

(1) declaration that having embraced a religious sect different from that for which Ebenezer Church Cherubim and Seraphim was built and dedicated the defendant and his followers become seceders and are not entitled to use the said Church building for the purpose of worship under the auspices of their new sect.

(2) possession of the said Church building and premises situate at Gbelegbuwa Street, Ijebu Ode.

(3) £ 150 being mesne profits in respect of the said premises.

(4) Injunction to restrain the .defendants their servants agents and members of their new religious sect i.e. The Sacred Cherubim and Seraphim Society of Nigeria from entering and worshipping or doing any act upon the said Church premises. The plaintiff succeeded in the Customary Court, except that no mesne profits were awarded, but the defendant appealed to the High Court which allowed this appeal and dismissed the action. The plaintiff then appealed to this Court.”

and discussing the rights of the plaintiff in that case, this Court observed as follows:-

“The Courts are concerned with legal rights and will not inquire into questions of religious doctrine except so far as they bear on legal rights. The question directly in issue in this case is not whether the defendant has seceded from the sect he belonged to but whether he is infringing the plaintiff’s rights. Having elected to sue in the Customary Court, the plaintiff had the burden of showing that he had rights enforceable against the defendant under the law administered by that Court, that is to say the “appropriate customary law”; Customary Courts Law ss. 19 and 20.” Relying on that case, Chief Okenla submitted that the onus was on the plaintiff in the instant case to establish that he had rights enforceable against the defendant in the Customary Court, and he further submitted that the plaintiff had failed to discharge this onus. As the claim in this case is similar to that in Okuboyejo’s case (supra), we consider that the submission of Chief Okenla is well founded. At the trial, the plaintiff made no effort to show that he had legal rights which are enforceable against the defendant under the appropriate customary law and that such rights had been infringed by the defendant. Where the jurisdiction of a customary court is in issue, the burden of establishing that the court has jurisdiction is upon the party who asserts the jurisdiction. (See S. E. Akrobotu v. Anetame Normeshie & ors. 14 W.A.C.A. 290).

In the present case, the question of jurisdiction was in issue, and it was the plaintiff who was asserting the jurisdiction. We are in no doubt that the onus was on him to establish that the Customary Court had jurisdiction and this he failed to do. Albeit for different reasons, we are of the view that the President of the Customary Court was right in coming to the conclusion that he had no jurisdiction to entertain the action; and the learned judge on appeal was therefore in error in holding that the Customary Court had jurisdiction.

The appeal therefore succeeds on the second limb of Chief Okenla’s argument and it is hereby allowed so that it is not necessary to consider the other argument that he advanced.

In the result, the judgment of the High Court, Ijebu Ode, in Suit No. J/l5A/64 including the order for costs, is hereby set aside and the judgment of the ljebu Divisional Grade A Customary Court dated the 7th May, 1964 striking out Suit No. JDGA/18CL/62 including the order for 50 guineas costs to the defendant is hereby reinstated.

The plaintiff/respondent shall pay to the defendant/appellant costs fixed at 77 guineas in this Court and 30 guineas in the High Court.

Other Citation: (1969) LCN/1687(SC)