Ichie Josiah Madu V. Humphery Mbakwe & Anor (2008)
LawGlobal-Hub Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J. C. A.
This is an appeal against the ruling of the High court of Imo state, Nkwerre Judicial division delivered on 21/9/98 striking out the appellant’s motion seeking to commit the respondents to prison for disobeying an order of the made on court 4/6/98, and striking out the substantive suit on grounds of lack of jurisdiction.
The appellant, being dissatisfied with the decision filed a notice of appeal containing eight grounds of appeal. The grounds of appeal without their particulars are:
Ground (i)
Error in law:
“The learned trial judge erred in law when he held, quote:
“In view of the provisions of Section 41 of the Land Use Act and the Supreme Court decision in the case of Oyeniran V. Egbetola in May 1997, I suo motu raised the issue of whether the High Court of Imo State sitting at Nkwerre had jurisdiction (sic) to entertain this suit. A declaration on this issue will determine whether I could hear the motion before me. “Unquote.”
Ground (ii)
Error in law:
The vacation judge erred in law when he held that he has jurisdiction to review the order of 4/6/98 as the said order was not a final order of the court.
Ground (iii)
Error in law:
The lower court erred when it held quote:
“Section 41 of the Land use Act 1978 confers original jurisdiction in proceedings in respect of customary right of occupancy only to the Area Courts or Customary Coutts.” Unquote.
Ground (iv)
Error in law:
The lower court erred when it held: quote
“l agree that there is only one customary court in Imo State with various districts.”
Unquote.
Ground (v)
Error in law:
The lower court erred in law when it held, quote:
“Whether new Local Governments are created or old ones split up it does not affect the existence of a customary court in the state. I therefore hold that there is in existence in Imo State a Customary Court. Since that is the case, the Customary Court Nnenasa and not the High Court Nkwerre has the jurisdiction to entertain this suit.”
Unquote.
Ground (vi)
Error in Law:
The lower court erred in law when it held, quote:
“……this is subject to any other court the President of the Customary Court of Appeal may assign the suit to in his statutory ‘ duties. ” Unquote.
Ground (vii)
Error in law:
The lower court erred in law when it held, quote:
“Having come to this conclusion, it is clear that this court is not competent to hear the motion filed in respect of this suit.
Unquote,
Ground (viii)
Error in law:
The lower court erred in law in striking cut Suit No. HON/14/98 whereas it has no jurisdiction to do so having earlier determined that it has jurisdiction in the matter and that the Nnenasa Customary Court has no jurisdiction to determine suit no. “CC/NN/8L/96.”
In compliance with the Rules of this Court, the parties filed and exchanged their respective briefs of argument. The appellant’s brief is dated 22/2/01 and was filed on 6/3/01. Therein the following five issues were formulated for the determination of this appeal:
- Was the vacation court right in reopening the issue of jurisdiction suo motu or reviewing its earlier order of 4/6/98? (Grounds (i) and (ii))
- Is there in Imo State only one customary court with various districts? (Grounds (iv) and (v))
- Is it Nkwerre High Court or the customary court Nnenasa that has jurisdiction to determine disputes arising from Isu Local Government Area where there is no customary court? (Grounds (iii), (v) and (vii)
- As the law presently stands, or as it stood in 1998, can the President, Customary Court of Appeal of Imo State, transfer or “assign” suits from one Customary Court to another? (Ground (vi))
- Was the vacation court right in striking out the appellant’s suit no. HON/14/98? (Ground (viii))
The respondents’ brief is dated 19/2/04. It was deemed filed on 17/1/07. Three issues were distilled from the grounds of appeal for the determination of the appeal. They are:
- Whether a court can raise the issue of jurisdiction suo motu as was done by the court.
- Whether the court below was right in striking out suit no. HON/14/98 for want of jurisdiction vis a vis Egbetola v. Oyediran.
- Whether the law gives the President, Customary Court Appeal power to transfer any case from one customary court to another, if such an application is made.
On 6/3/08 when we heard this appeal, Chief O. E. Aladum, learned counsel for the appellant adopted his brief of argument and urged us to allow the appeal. Mr. I.F. Akponye, learned counsel for the respondents adopted the respondents’ brief and urged us to dismiss the appeal.
The brief facts of this case are that the appellant and one Chief Iheduro Madu (now deceased) as plaintiffs instituted an action against the respondents herein (as defendants) before the Customary Court, Isu Local Government Area in suit no. CC/NN/8L/96 for the following reliefs:
a.”A declaration that the plaintiffs are entitled to the customary Right of Occupancy in respect of Ala-Amankwu.
b. Special and general damages of N2, 000.00.
c. Perpetual Injunction restraining the defendants and their agents (by whatever name called from further entry into the said Ala-Amankwu).”
By a notice of discontinuance filed on 1/6/98 the appellant discontinued suit CC/NN/8L/96 and filed a new suit HON/14/98 on 2/6/98 before the High Court of Imo State, Nkwerre/Isu Judicial Division holden at Nkwerre against the respondents seeking the following reliefs:
a.”A declaration that the plaintiff is entitled to the customary right of occupancy in respect of Ala Amankwu, situate at Uburu Ekwe, Isu L.G.A.
b. Special and general damages of N50, 000.00 for trespass and unlawful destruction of the plaintiff’s crops in the said land.
c. Perpetual Injunction restraining the defendants and their agents (by whatever name called) from further entry into the said Ala Amankwu.”
Along with the writ of summons the appellant filed an ex-parte application seeking an order restraining the respondents from continuing with suit no. CC/NN/8L/96 on the ground that the customary court, Nnenasa lacked jurisdiction to entertain it. On 4/6/98 the trial court per C.I. Dureke, J. granted the order as prayed. However, notwithstanding service of the order on the respondents and the Nnenasa Customary Court, the trial before the customary court proceeded and judgment delivered therein on 13/7/98. The judgment was in favour of the respondents. The customary court allegedly proceeded with the matter pursuant to a letter written to it by the president of the Customary Court of Appeal of Imo State. The appellant thereupon filed a motion on notice dated 25/8/98 seeking the committal of the respondents herein and members of the Customary Court to prison for disobeying the order of court made on 4/6/98.
The application came before His Lordship I.O. Agugua, J during the court’s annual vacation. On 31/8/98 the learned trial judge raised the issue of jurisdiction suo motu. He directed learned counsel for both parties to address him on the issue and adjourned the hearing of the application for that purpose. After considering the submissions of learned counsel, His Lordship held at pages 22-23 of the record as follows:
“…It is therefore clear that once a Customary Court has been established in any State of the Federation and is in existence there, then the High Courts cannot have jurisdiction under Section 41 of the Land Use Act Whether new Local Governments are created or old ones split up it does not affect the existence of a Customary Court in the State. I therefore hold that there is in existence in Imo State a Customary Court. Since that is the case, the Customary Court Nnenasa and not the High Court Nkwerre has the jurisdiction to entertain this suit. Of course this is subject to any other court the President of the Customary Court of Appeal may assign the suit to in its statutory duties.
…..Having come to this conclusion, it is clear that this court is not competent to hear the motion filed in respect of this suit. In the circumstances suit no. HON/14/98 is struck out for want of jurisdiction.”
It is against this ruling that the appellant has appealed to this court. I have considered the issues formulated by both parties to this appeal.
The law is trite that issues for determination must be distilled from the grounds of appeal, which in turn must be predicated upon the ratio decidendi of the decision of the court appealed against. See: Honika Sawmill (Nig.) Ltd. Vs Hoff (1994) 2 NWLR (326) 252: Briggs Vs C.L.O.R.S.N. (2005) 12 NWLR (938) 59 at 90 F-H: Dalek Nig. Ltd. Vs OMPADEC (2007) ALL FWLR (364) 204 at 226 F-H. The ratio decidendi of a case is the principle or rule of law upon which a court’s decision is founded. See: Black’s Law Dictionary (8th edition); also: A.I.C. Ltd. Vs NNPC (2005) 11 NWLR (937) 563; Ajadi (2004) 14 NWLR (892) 14. On the other hand obiter dicta or obiter dictum means, “something said in passing”‘ It is a judicial comment made while delivering a judicial opinion, but one that does not embody the decision of the court. See: Black’s Law Dictionary (supra) and A.I.C. Ltd. Vs NNPC (supra): Akibu Vs Oduntan (2000) 13 NWLR (685)
406: Odessa Vs F.R.N. (No. 2) (2005) 10 NWLR (934) 528 at 555 B.
A careful examination of the ruling appealed against at pages 20-23 of the record, particularly the concluding portion reproduced above, would reveal that the ratio decidendi of the case was that having regard to the provisions of Section 41 of the Land Use Act 1978 and the decision of the Supreme Court in the case of Oyeniran Vs Egbetola (1997) 5 SCNJ 94 at 102, the High Court of a State has no jurisdiction to entertain a suit relating to any land, which is the subject of a Customary Right of Occupancy where a Customary Court exists in that State.
Having made this finding the Court went on to say:
“Of course this is subject to any other court that the President of the Customary Court of Appeal may assign the suit to in his statutory duties.”
In the con of the entire ruling, I am of the considered view that this comment by the learned trial judge was obiter. Whether or not the President of the Customary Court of Appeal had jurisdiction to assign a cause or matter to another court was not the issue for determination before him. The issue, which he raised suo motu, was whether the High Court of Imo State sitting at Nkwerre had jurisdiction to entertain the appellant’s claim. His comment was not a decision within the meaning of section 318 (1) of the 1999 constitution and was not the basis of the conclusion reached. It is therefore not appealable. See: Odessa Vs F.R.N. (No. 2) (supra); Abacha Vs Fawehinmi (2000) 6 NWLR (660) 228 at 350-351 H-D. For this reason ground (vi) of the appellant’s grounds of appeal, which is attacking the obiter dictum of the learned trial judge is incompetent. Any issue based on an incompetent ground of appeal is also incompetent and liable to be struck out. See: Nasiru Bindawa (2006) 1 NWLR (961; Obi-Odu Vs Duke (2006) 1 NWLR (961) 375. Accordingly ground (vi) of the appellant’s grounds of appeal and the appellant’s issue no. (iv) predicated thereon are hereby struck out.
I also observe that the appellant’s issues (ii) and (iii) are formulated from ground (v) of the notice of appeal among other grounds. The rule is that a number of grounds may raise a single issue for determination but a single ground of appeal cannot be split into several issues. That would amount to proliferation of issues, which the courts have always frowned upon. See: Leedo Presidential Hotel Ltd. Vs B.O.N. (Nig) Ltd. (1993) 1 NWLR (269) 334 at 347 A-C: Agbetola Vs Lagos State Executive Council (1991) 4 NWLR (188) 664: U.B.A Vs Mode (Nig.) Ltd. (2001) 13 NWLR (730) 335. Having examined issues (ii) and (iii) I am of the view that issue no. (iii), adequately takes cares of the complaint in both issues. Issues no.
(ii) is therefore hereby struck
I am of the view that the appellant’s surviving issues (i), (iii) and (v) are adequate for the purpose of resolving the issues in contention in this appeal.
With regard to issue no. (i), learned counsel for the appellant submitted that the vacation court per Agugua, J was wrong to have reopened the issue of jurisdiction or to have reviewed the order of Dureke, J of the same High Court. He referred to Order 48 Rules 4 (2) and 5 (1) and (2) of the Imo State High Court (Civil Procedure) Rules 1988 on the jurisdiction of the court to sit during the annual vacation. He submitted that the respondents did not file any objection to the hearing of the suit nor did they apply for an urgent hearing of any matter concerning the suit under Order 48 Rule 5 (2). He noted that there was also no application to discharge the existing ex-parte order made on 4/6/98. He argued that the order is valid and subsisting and binding on the parties until set aside. He referred to: Ojiako Vs Ogueze (1962) 1 ALL NLR 58; (1962) 2 SCNLR 112; Ezegbu Vs F.A.T.B Ltd. (1992) 1 NWLR (220) 699 at 720 D-E. He Submitted further that raising the issue of jurisdiction suo motu, the learned trial judge had descended into the arena and prosecuted the respondents’ case for them, which he had no right to do. He relied on: Chief Land Officer Vs Alor (1999) 4 NWLR (187) 617 at 629 D-H.
Learned counsel contended that the order of 4/6/98 was a final order that finally determine the rights of the parties and was therefore subject only to appeal. He submitted that the High Court per Dureke, J having by the order of 4/6/98 determined that the Nnenasa customary court lacks jurisdiction to entertain suit no.CC/NN/8L/96, the same Court per Agugua, J sitting as a vacation court could not reopen the issue as it amounted to sitting on appeal over its own decision.
In reply to this issue, learned counsel for the respondents submitted that the law is trite that the issue of jurisdiction could be raised at any stage of the proceedings and even for the first time on appeal to the Court of Appeal or the Supreme Court. He relied on: Galadima Vs Tambari (2000) FWLR (14) 2369; Barclays Banks Ltd Vs C.B.N. (1976) 6 SC 175; Osadebey Vs A.G., Bendel State (1991) 1 NWLR (169) 525. He submitted that the lower court was right to raise the issue of jurisdiction and to invite counsel to address it on the issue. Learned counsel submitted that the order made on 4/6/98 was made without jurisdiction because it sought to make orders against persons who were not parties to the proceedings in respect of which the order was made. He further contended that the order was not a final order, as it did not determine the rights of the parties sought to be committed. He also argued that the ruling of 21/9/98 was not a review of the order of 4/6/98. He submitted that the High Court has inherent jurisdiction to set aside its own orders or ruling. He submitted that where an order is given in any proceeding in which there has been some fundamental defect, which goes to the issue of jurisdiction and competence of the court, such order is a nullity. He relied on: Okafor Vs. Okafor (2000) FWLR (1) 17
Having considered the submissions of both learned counsel, I consider it expedient to consider two preliminary issues that arise from their submissions, namely, whether the application, which is the subject matter of this appeal was properly before the court below during the vacation and whether the learned trial judge was right to have raised the issue of jurisdiction suo motu. With regard to hearing of the application during the vacation, I am of the view that this is a fresh issue being raised before this court for the first time. There is nothing in the record to suggest that the appellant challenged the hearing of the application during the vacation. To do so before this court, the appellant must seek and obtain leave. See: Gbadamosi Vs Dairo (2007) 1 SC (Part II) 130 at 168; Bosiec Vs Kachalla (2006) 1 NWLR (962) 587, There is no application on record for leave to raise a fresh issue before this court. The submission in respect thereof is therefore discountenanced.
On whether the trial court could raise the issue of jurisdiction suo motu, the position of the law is that jurisdiction, being a threshold issue, can be raised at any stage of proceedings and even for the first time on appeal to this Court or the Supreme Court. Bearing in mind the right of the parties to fair hearing provided for in Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria, a court may raise the issue of jurisdiction suo motu, but must give the parties an opportunity to be heard in respect thereof’ See: Dongtoe Vs Civil Service Commissioner of Plateau State & 2 Ors. (2001) 4 SCNJ 131 at 148 lines 5-14; also found in (2001) 9 NWLR (717) 132; Ukong & Anor Vs Commissioner for Finance & Economic Development &Anor (2006) 12 SCNJ 129. In the instant case the learned trial judge rightly called on the parties to address him on the issue before reaching a decision.
The question that now arises for determination is whether the decision of the lower court amounted to a review of the order made on 4/6/98. I have examined the record of appeal very carefully. Although the enrolled ex-parte order made on 4/6/98 is reproduced at page 3 thereof’ the application upon which the order was made was not copied into the record. There is also no record of the proceedings of 4/6/98 to enable us determine on what basis the order was made. The order reads thus:
“Upon reading through the motion ex- Parte and the affidavit in support deposed to by the plaintiff/applicant and after hearing Chief O.E. Aladum of counsel for the plaintiff/applicant;
IT IS HEREBY ORDERED that the defendant/respondents be and are hereby restrained from continuing with Suit No. CC/NN/8L/96 on the ground, inter alia, that the Nnenasa Customary Court lacks jurisdiction to entertain same.”
From the order made it is clear that the trial court granted the order of injunction on the ground that the Nnenasa customary court lacked jurisdiction to entertain the suit before it. However there is nothing in the record to indicate that the court considered the issue of its own jurisdiction to entertain suit No. HON/14/98. There is no doubt that both Dureke, J who made the order of 4/6/98 and Agugua, J who presided over the matter during the vacation are both judges of the same High Court of Imo State. The law is that a court cannot sit on appeal over its own judgment. However where there is any feature of a case that might affect the court’s jurisdiction to adjudicate, and neither of the parties raises it, the court has a duty to raise the issue suo motu and invite the parties to address it. This is because where the court lacks jurisdiction, the proceedings, no matter how well conducted would be a nullity.
As stated earlier the issue of jurisdiction can be raised at any stage of a cause or matter because it is the foundation of the court’s competence. In the case of Madukolu Vs Nkemdilim (1962) 2 SCNLR 341 it was held that a court is competent when:
a. it is properly constituted as regards numbers and qualifications of the members of the bench, no member is disqualified for one reason or the other;
b. the subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
c. the case comes before the court initiated by due Process of law’ and upon fulfillment of any condition Precedent to the exercise of jurisdiction. (Emphasis mine)
Therefore although the High Court per Dureke, J assumed jurisdiction in the matter, Agugua, J had the right to raise the issue of jurisdiction pursuant to powers conferred on him by Section 6 (6) of the 1999 Constitution of the Federal Republic of Nigeria when it appeared to him, having regard to the claims before the court, that the court lacked jurisdiction to entertain the suit. See: Adeleke Vs O.S.H.A. (2006) 16 NWLR (1006) 608 at 714 F-G: Vs I.G.P (2006) 5 NWLR (972) 146 at 162. In my humble view it did not amount to reviewing the order of 4/6/98 because the jurisdiction of the Imo State High Court was not in issue when that order was made. In any event the law is settled that a High Court has inherent jurisdiction to set aside its own judgment or order given proceedings in which there has been some fundamental defect, such as one that goes to the issue of jurisdiction and competence of the court since such judgment or order is a nullity. See: Okafor Vs Okafor (2000) FWLR (1) 17 at 28: Skenconsult (Nig.) Ltd. Vs Ukey (1981) 1 SC 6: Obimonure Vs Erinosho (1966) 1 ALL NLR 250.
Learned counsel for the appellant has also submitted that the order made on 4/6/98 was a final order, which finally disposed of the rights of the parties and therefore subject only to appeal. With respect to learned counsel, the submission is misconceived. The order of 4/6/98 restrained the parties from continuing with a suit pending before an entirely different court. Furthermore the order had no bearing on the reliefs sought by the plaintiff in his writ of summons. It would therefore be erroneous to contend that the order finally disposed of the rights of the Parties in the suit.
In light of all that I have said above, I resolve this issue against the appellant.
I shall now consider issue (iii). Learned counsel for the appellant submitted that, contrary to the view expressed by the learned trial Judge, there are different Customary Courts in Imo State and not one Court having various districts. He submitted that the existence of various districts was the position under the customary Court Edict No.7 of 1984. He referred to Section 3 of the Edict. He submitted that with the coming into force of the Customary Courts (Amendment) Edict No. 4 of 1994 local government districts were abolished. He referred to section 3 (1) of the said Edict. He submitted that the intention of the legislature to provide for a Customary Court in every local
Government area in Imo State could be determined from a combined reading of Sections 14, l5 and 16 of Edict No.7 of 1984 and Section 3 (1) of Edict No. 4 of 1994. He urged us to give effect to the legislative intention. He relied on the case of: F.C.S.C Vs Laoye (1989) 2 NWLR (106) 652 at 682 and 636: also: Nafiu Rabiu Vs The State (1980) 8-11 SC 130.
Learned counsel submitted that the parties are ad idem on the fact that there is no customary court in Isu Local Government Area, where the land in dispute is situate’ He submitted that the combined effect of sections 14 (1), 15 (4) (b), (c) and 16 (1) (a) and (d) of Edict No. 7 of 1984 is that no Customary Court in Imo State has jurisdiction to entertain any dispute relating to any land outside its local government area. He contended that this is the position whether or not the suit is brought after the creation of a new local government area’ as in the instant case. He submitted that there is no law conferring jurisdiction on the Customary Court in Nnenasa to entertain cases from Isu and Njaba Local government areas. He argued that since there is no Customary Court in Isu Local Government area, the High Court, Nkwerre Judicial Division has jurisdiction to determine the suit. He relied on: Oyeniran Vs Egbetola (1997) 5 SCNJ 94 at 101 lines 32-43; 102 lines 1-15 and 103 lines 3-9. He submitted that even where a Customary Court exists in Njaba Local Government Area and there is none in Isu Local Government Area, the Nnenasa Customary Court would have no jurisdiction to entertain land matters from Isu Local Government Area.
In reply to the above submissions, learned counsel for the respondents submitted that the applicable law in the circumstances of this case is the law existing at the time the cause of action arose and not the law existing when the issue of jurisdiction of the court is invoked. He referred to the cases of Oduntan Vs Akibu (2000) FWLR (12) 1982 and Mustapha Vs Governor of Lagos State (1987) NSCC (Part 1) 632. He referred to the appellant’s claims as contained at pages 1-2 of the record and noted that Suit No. HON/14/98 was filed on 2/6/98, while suit no. CC/NN/8L/96 was filed in 1996. He referred to pages 9-17 of the record. He submitted that in 1996 the Nnenasa Customary Court had jurisdiction to hear and determine claims in respect of land situate in Ekwe, Isu Local Government Area, which is subject to a customary right of occupancy. He referred to Section 41 of the Land Use Act and the case of Oyeniran Vs Egbetola (supra). He submitted that there is no provision in Edict No.7 of 1984 for a situation where a local government is split. He submitted that after the suit in CC/NN/8L/96 was filed the Njaba Local Government was split. He submitted that until the President of the Customary Court of Appeal established a Customary Court, the customary court at Nnenasa had jurisdiction to entertain the suit. Relying on the case of: Adesanoye Vs Adewole (2000) FWLR (14) 2387, he submitted that the obligations and rights of the parties must be considered in the light of the law at the time the cause of action arose, which also entails that the procedure in force at the time action was brought, if eventually altered does not affect the competence of the action.
Learned counsel submitted that the court below was right when it held that whether a new local government area was created or an old one split, it does not affect the existence of a customary court in the state. He submitted that there is an established Customary Court in Imo State. He submitted further that the land in dispute, Ala Amankwu, is situate in Ekwe, Isu Local Government Area and that it is a rural area under Njaba Local Government in respect of which the Nnenasa customary Court has original jurisdiction. He contended that the extraction of Isu Local Government Area does not confer jurisdiction on the High Court sitting at Nkwerre because: suit no. CC/NN/8L/96 was first in time; the land is situate in a rural area; and the customary court Nnenasa still had jurisdiction to hear cases from Isu Local Government Area at the time.
In order to fully grasp the submissions of both learned counsel, it is necessary to put the issue in contention in its proper con. Section 3 of the Customary Courts Edict No. 7 of 1984 (Edict No.7 of 1984) provides:
“3. There is hereby established a Customary Court for every local government and every local government district in the State as set out in the First Schedule to this Edict”
This provision was amended by the Customary Courts (Amendment) Edict No. 4 of 1994 Section 3 thereof provides:
“3. The principal Edict [Edict No. 7 of 1984 as amended] is hereby amended as follows: –
(a) Delete section 3 thereof and substitute therefore the following –
“3 (1) There is hereby established one or more Customary Courts for every Local Government Area in the State as set out in the first schedule to this Edict.
(2) The President of the Customary Court of Appeal may at any time, by Order published in the Gazette alter the First Schedule by increasing or reducing the number of Courts established for a Local Government Area.”
As rightly pointed out by learned counsel for the appellant, Edict No. 4 of 1994 deleted the reference to local government districts from the new section. From the facts that could be gathered from the record, in respect of which the parties are in agreement, the land in dispute is situate within a rural area in Isu Local Government Area of the State. Before the commencement of suit CC/NN/8L/96 there was in existence a customary court in Isu Local Government Area. The court used to sit in two locations, Njaba and Nnenasa. However by the time the suit was instituted in 1996 the Isu Local Government Area had been split into two: Isu and Njaba Local Governments. After the split, matters arising from the new Isu Local Government Area were being heard and determined by the Nnenasa customary court in Njaba Local Government Area. In other words, with the split, the new Isu Local Government Area did not have a customary court of its own. The issue in contention is therefore whether in the absence of a Customary Court in Isu Local Government Area, the Nnenasa Customary Court sitting in Njaba Local Government Area had jurisdiction to entertain the suit or whether the High Court of Imo State sitting at Nkwerre had jurisdiction to entertain it.
The learned trial judge in his ruling, held that the High Court lacked jurisdiction to entertain the suit because there exists in Imo State a Customary Court, which is conferred with jurisdiction to hear and determine causes in relation to land in rural or non-urban areas that are subject to customary rights of occupancy. The guiding principle in the interpretation of statutes is that where the words used are precise and unambiguous they must be given their ordinary and natural grammatical meaning. See: Ibrahim Vs Barde (1996) 9 NWLR (474) 513 at 577 B-C: Ahmed Vs Kassim (1958) SCNLR 58; Ojokolobo Vs Alamu (1987) 3 NWLR (61) 377 at 402 F-H. Section 3 of Edict No. 4 of 1994 reproduced above provides for the establishment of one or more customary courts for every local government area in the State. The language is clear and unambiguous. I agree with learned counsel for the appellant that each local government area is entitled to one or more customary courts. I do not see how the section could be interpreted to mean, as the learned trial judge held, that one customary court is established for the entire state, particularly when by the same Edict local government districts had been abolished.
The parties agree that no customary court had been established for the newly created Isu Local Government Area. Does the Nnenasa customary court, which previously heard suits arising from the old Isu Local Government Area have jurisdiction to entertain the respondent’s claim? I have considered sections 14 (1) and 15 (4) of Edict No. 7 of 1984, which provide as follows:
“14. (1) A Customary Court shall have and exercise jurisdiction over all persons within the territorial limits of its jurisdiction.
- (4) Subject to subsections (1), (2) and (3) of this section –
(b) All land causes or land matters shall be tried and determined by a Customary Court established for the area within which the land which is the subject matter of the dispute is situated;
(c) where the land is situated partly within one Customary Court area and partly within another area, the President of the Customary Court of Appeal may determine which of the Customary Courts of Appeal is to have jurisdiction over the land in question and on such determination such Court shall have jurisdiction over the land as it has over land lying wholly within its area of jurisdiction.”
From the provisions of Section 14 (1) and 15 (a) (a) above it is clear that the jurisdiction of each Customary Court is confined to its territorial limits. In other words a customary Court would have no jurisdiction to entertain a cause or matter relating to land that is situate outside its territorial limits. In the instant case, from the submissions of both learned counsel, the land in dispute fell squarely within the newly created Isu Local Government Area, which had no customary court. Until a customary court was created for Isu Local Government Area, the Nnenasa customary court sitting in Njaba Local Government Area had no jurisdiction to try the suit, as its jurisdiction was limited to the Njaba Local Government Area.
Now the jurisdiction of the High Court of a State is provided for in section 272 of the 1999 Constitution of the Federal Republic of Nigeria. Section 272 (1) provides:
“272 (1) Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of any right, power, duty, liability, privilege, interest, obligation or claim is in issue…”
Section 6 (6) (b) of the Constitution provides:
“6. (6) The judicial powers vested in accordance with the foregoing provisions of this section –
(b) Shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”
From the above provisions there is no doubt that subject to section 251 and other provisions of the constitution the jurisdiction of the High court of a state is unlimited. See: Adisa Vs Oyinwola (2000) 10 NWLR (674) 1164 at 204 E-F; Okulate VS. Awosanya (2000) NWLR (646) 530; Bronik Motors Ltd Vs Wema Bank Ltd. (1983) 1 SCNLR 296. It is the practice of the courts to guard the jurisdiction so conferred jealously and not to relinquish it lightly. It is also trite that a right conferred or vested by the constitution cannot be taken away or interfered with by any other legislation or statutory provision except the Constitution itself. Any law purportedly made, which abrogates a right conferred by the Constitution will be void to the extent of its inconsistency. See: Tukur Vs Governor of Gongola State (1989) 4 NWLR (117).
Section 41 of the Land Use Act 1978 provides as follows:
“41. An area court or customary court or other court of equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings in respect of a customary right of occupancy granted by a Local Government under this Act: and for the purposes of this paragraph proceedings includes proceedings for a declaration of title to a customary right of occupancy and all laws including rules of court regulating practice and procedure of such courts shall have effect with such modifications as would enable effect to be given to this section.”There is clearly nothing in the section that purports to confer exclusive jurisdiction on area or customary courts in respect of matters relating to customary rights of occupancy or that purports to oust the jurisdiction of the High Court to entertain such matters
There is clearly nothing in the section that purports to confer exclusive jurisdiction on area or customary courts in respect of matters relating to customary rights of occupancy or that purports to oust the jurisdiction of the High Court to entertain such matters. In the case of Adisa Vs Oyinwola (supra) at 176 F-H the Supreme Court held that in cases such as the instant one, where the issue of the jurisdiction of the High Court arises, the correct approach is to first consider the jurisdiction conferred on the High court by section 236 of the 1979 Constitution (now Section 272 of the 1999 Constitution) and enquire whether there is anything in the constitution that excludes the jurisdiction of the High court in proceedings relating to customary right; of occupancy. Their Lordships were of the view that it was wrong to make Section 41 of the Land Use Act the starting point for such an enquiry. The Court also noted that the jurisdiction exercised by the High Court in matters relating to rights of occupancy is not derived from the Land use Act. The apex court also held that the Land use Act, although an existing law by virtue of section 274 (3) of the 1979 Constitution (section 315 (3) of the 1999 Constitution), is not an integral part of the Constitution and therefore cannot whittle down or override any provision of the Constitution.
In the ruling appealed against the learned trial Judge based his decision on Section 41 of the Land Use Act and the case of Oyeniran Vs Egbetola (supra). The Supreme Court in that case held that the High Court had no original jurisdiction to entertain a matter relating to a customary right of occupancy where there is a customary court in the relevant local government area where the land is situate. However this decision was overruled in the case of: Adisa Vs Oyinwola (supra) at page 176-177 H-A where His Lordship, Ayoola, JSC held:
“In my Judgment, the decision of this court in Oyeniran Vs Egbetola (supra) was erroneous and made per incuriam. This Court should not be bound by that decision …”
Also per Ogundare, JSC at 180 G:
“I agree with his [Ayoola, JSC’S] conclusion on Issue (1) that this Court should depart from its earlier decision in Oyeniran Vs Egbetola (1997) 5 NWLR 122 and that the High jurisdiction Court had to try the case leading to this appeal.”
See also pages D & E; 208 B-C; 215 A and 217 H-218 A (supra): Akanbi Vs Salawu (2003) 6 SCNJ 246 at 254 lines 24-29: Sanni Vs. Ademiluyi (2003) 1 SCNJ 197 at 205 line 37- 206 line 7. The purport of the above decisions of the Supreme Court is that the jurisdiction of the High court of a State to deal with causes or matters relating to land, whether in an urban or rural area, is not limited or restricted by Section 41 of the Land Use Act. This issue is accordingly resolved in favour of the appellant.
Having regard to my finding in respect of issue no. (iii), issue no. (v), on whether the learned trial judge was right in striking out the appellant’s suiting no. HON/14/98 must be answered in the negative.
In conclusion therefore, this appeal succeeds. The ruling of the Imo State High court, sitting at Nkwerre Judicial Division delivered on 21/9/98 striking out the appellant’s motion filed on 31/8/98 along with the substantive suit is hereby set aside. The appellant’s suit No. HON/14/98 is hereby restored to the cause list to be heard and determined by a different Judge of the Imo state High court.
The costs of this appeal are assessed at N30, 000.00 in favour of the appellant.
Other Citations: (2008)LCN/2741(CA)
