Maaji Galadima V. Alhaji Adamu Tambai & Ors (1993)
LawGlobal-Hub Lead Judgment Report
OKUNOLA, J.C.A.
This is an appeal against the judgment of the Kaduna State High Court holden in Zaria delivered by S. M. Comassie J. (as he then was) on 7/4/90 in appeal No. KDZ/Z/68A/90 whereupon the court affirmed the judgment of the Upper Area Court Ikara and in addition ordered the Upper Area Court No.1 Zaria to retry the case.
The facts of this case briefly put are as follows:-
The appellant in this matter, Maaji Galadima, instituted an action against the 12 respondents/objectors herein, claiming from them his fathers farmland given to them by the Late Sarkin Gwanki, at Gwanki town. The respondents denied the claim. The appellant’s claim was tried by the Area Court No.1 Zaria City and judgment was entered in favour of Maaji Galadima, the plaintiff/appellant.
Being dissatisfied with this decision the twelve defendants/respondents appealed to the Upper Area Court Ikara, where they were represented by counsel, Mallam Dauda Umar, prominent of the grounds argued by counsel, was the complaint that the Area Court or Court of first instance lacked jurisdiction to try the matter since the land in dispute was situate within Ikara Local Government. In its judgment, the Upper Area Court, gave judgment on the merits of the proceedings and set aside the judgment of the trial area court No.1 Zaria City. The appellant, being dissatisfied with the decision of the Upper Area Court Ikara appealed to the High Court Zaria against the judgment of the Upper Area Court. Two grounds were argued. It is relevant to point out there that the appellant dealt with issues which emanated from the judgment of the Upper Area Court. Respondents counsel, at the High Court also responded to those same issues, he did not pursue his complaint of absence of jurisdiction at that court. In its judgment, the High Court, after having considered several authorities upheld the judgment of the Upper Area Court, Ikara and the order of retrial ordered by the Upper Area Court No. 1 Zaria to conduct a retrial on certain specific issues. It is this judgment that the Appellants have appealed against to this Honourable court on two grounds. No issue of jurisdiction is raised therein. However the Respondents through their new counsel Jaafaru Abbas-Ibrahim Esq, have suddenly raised the issue of lack of jurisdiction. He has done so by filing a notice of preliminary objection dated the 15th of June, 1993 pursuant to Order 3 Rule 15 of the Court of Appeal Rules 1981. The relevant portion reads thus:
(2) “Having regard to the records of proceedings of Zaria City Area Court No. 1 particularly the report of the visit of the farmlands, the subject matter of this appeal by the trial court, it is clear on the face  of the record that the farmlands situate at Tashar Filani under Makarfi district of former Ikara Local Government Area now Makarfi Local Government Area.
(3) Having regard to section 19(3) of the Area Courts Edict No.2 of 1967 together with the Area Courts jurisdiction Notice 1979 Kaduna State, the jurisdiction of Zaria City Area Court No. 1 is limited only within Zaria Local Government Area hence incompetent to adjudicate in respect of land in Tashar Filani under Makarfi District of Makarfi Local Government Area.
(4) Having regard to the decision of the Supreme Court of Nigeria on the interpretation of the application of Area Courts Edict No. 1 of 1967 and the Area Courts Uurisdiction) Notice 1977 in Alhaji Hashimu Garba Matari & 60 Ors. v. Ahmadu Dan Galadima & 1 other (1993) 2 SCNJ 122 at 137; (1993) 3 NWLR (Pt.281) 266, the Respondent will object that the appeal is incompentent in that the trial was a nullity and void.
However, before going further with this appeal, it is necessary to state that this Respondent’s Notice of preliminary objection contained in the Respondent’s brief touches on the jurisdiction of the court to entertain the matter which constitutes the subject matter of this present appeal. Since jurisdiction forms the basis of adjudication, it is reasonable to first deal with this objection, the outcome of which will determine whether or not to consider the substantive appeal. In this regard, it is pertinent to point out that the Respondent in the preliminary objection raised the following issue for determination in this court. This is:-
“Whether having regard to the provisions of sections 19(3) of the Area Court Law No.2 of 1967 together with the Area Courts (Jurisdiction) Notice 1977 of Kaduna State vis-a-vis the Supreme court of Nigeria decision in Alhaji Hashimu Garba Matari & Ors v. Ahmadu Dangaladima & lather (1993) 2 SCNJ 122 at 137; (1993) 3 NWLR (Pt.281) 266, the Area Court No. 1 Zaria City had jurisdiction to hear and determine the plaintiff/appellant’s claim, to wit being some parcel of farmland situate at Tashar Filani, Anguwan Dakutaje Kunkumi Gwanki at Makarfi in Ikara Local Government.
I must add here that the appellant’s counsel also formulated three issues all of which face into the one by the respondent.
Both parties have filed their relevant briefs which incorporated their reaction to this preliminary objection. Both counsel adopted and relied on these briefs and addressed us viva voice on the preliminary objection. At the hearing of the preliminary objection learned counsel to the Respondent J. Abbas-Ibrahim after adopting the Respondent’s brief on the preliminary objection he raised in the said brief filed on 29/9/93 observed that in view of the Appellant’s Reply brief on the Preliminary Objection he would like to add some points. In this regard, learned counsel referred to the issue canvassed in paragraph C. 06 on page 3 of this Respondent’s brief and cited the case of Lt. Col. (Mrs.) R.A.R. Finnih v. J. O. Imade (1992) 1 SCNJ 87 p. 102 lines 29-40 per Babalakin, J.S.C and p. 108 lines 20-25; (1992) 1 NWLR (Pt.219) 511. Learned counsel submitted that in view of this authority, the court can raise and determine the issue of jurisdiction without calling on the parties to address it particularly having regards to the Kaduna State Area Courts (Jurisdiction) Notice 1977 Kaduna State Laws (Annual Volume) 1976/1977. Learned Counsel for the Respondent contended that the facts of the case in Finnih v. Imade (supra) are in pari materia with the instant appeal. Learned Counsel further submitted that in view of s. 74 of the Evidence Act, any Superior Court, Court of Appeal inclusive can take judicial notice of the Kaduna State Area Courts (Jurisdiction) Notice 1977 contained in the Kaduna State 1976/77 Annual Volumes of Laws without calling on the parties to address it.
As regards paragraph C. 04 on page 3 of the respondent’s brief on the preliminary objection, learned counsel to the respondent relied on the case of Alhaji Hashimu Matari & 6 Ors. v. Ahmadu Dan Galadima & 1 Or. (1993)2 SCNJ 122 pp. 137 – 138; (1993) 3 NWLR (Pt.281) 266; Wayne (W.A.) Ltd. v. Euben E. Ekwunife (1989) 12SCNJ 199 P. 109; (1989) 5 NWLR (Pt.122) 422 and submitted
that the cumulative effect of these two judgments is to render this court bound to apply these two authorities. Learned counsel urged the court to allow the preliminary objection and dismiss the appeal for lack of jurisdiction.
By way of reply, learned counsel to the Appellant, Mr. J. B. Daudu leading Miss U. N. Agomoh referred to the appellant’s reply brief filed in response to the preliminary objection. After adopting the said brief in its entirety, counsel referred to page 2 of the brief for the three issues identified for determination as against the respondent’s lone issue. Learned counsel submitted that the respondent has not addressed the issue so raised in the appellant’s reply brief in response to the preliminary objection by way of a reply brief and that neither did he mention same in his oral argument. He referred to the case of Chief Emmanuel Ogunbadejo v. Otunba A. L. A. Owoyemi (1993) 1 NWLR (Pt. 271) 517 pp. 534-535. Counsel urged the court to hold that the respondent has no answer to his submission that the jurisdiction of this court cannot be invoked by way of a notice of preliminary objection so as to determine the appeal as he sought to do in this case.
On his issue No. 1, learned counsel to the Respondent, submitted that the doctrine of Judicial Notice does not apply to this application for the reason that for it to apply the issue must be properly before the court as judicial notice cannot apply in vaccum. Learned counsel further contended that since this court does not determine appeal from any court other than the High Court and other courts of coordinate jurisdiction, the issue of jurisdiction raised two courts below cannot be raised in the High Court without due process being followed. He therefore submitted that it is only when there is such due process that the issue of jurisdiction can be raised. The only other exception, he continued, is where jurisdiction is being raised for the first time. He contended that in the instant appeal jurisdiction is not being raised for the first time since the matter had been pursued on its merit other than the issue of jurisdiction. Learned counsel contended that the proper procedure open to the respondent is by way of cross-appeal but according to him they have waived their right. Learned counsel, submitted that until section 219 of the Constitution is complied with, Jurisdiction cannot be looked into by the court. He further submitted that the provisions of Order I Rule 25, Order 3 Rule 23 of Court of Appeal Rules 1981 and Section 16 of the Court of Appeal Act cannot be invoked to give this court power suo motu to consider the issue of jurisdiction unless S. 219 of the Constitution has been complied with – Cross-appeal should have been filed.
Learned counsel submitted that the court should gloss over the issue of jurisdiction once it is not raised for the first time or made subject of cross-appeal. Learned counsel for the Appellant urged the court to dismiss the preliminary objection and set the appeal for hearing.
I have considered the submissions of both sides on the issues raised in the notice of preliminary objection vis-a-vis the prevailing law. It would appear that the basic issue that emerges for consideration in the notice of preliminary objection is simply.
- Whether the court of appeal on its own motion can raise and apply the provision of Kaduna State Area Courts (Jurisdiction) Notice (1977) without calling on the counsel to both parties to address the
court on it since it is a matter relating to jurisdiction. Or
- Whether the court of appeal cannot suo motu consider the issue of jurisdiction once it is not raised for the first time or made subject of cross-appeal.
As regards the first issue relating to doctrine of Judicial Notice, I have considered the submissions of both sides on the issue. I hasten to say that this poser had received judicial consideration by the Supreme Court in the case of Lt. (Col. Mrs.) R. A. F. Finnih vs. J. O. Imade (1992) 1 SCNJ 87 p. 102 paragraphs 3; (1992) 1 NWLR (Pt.219) 511 – per Babalakin JSC thus;
“The court of Appeal in its judgment alluded to the provisions of the Boundary Dispute (Determination) Notice No. N. E. L. N. 72 of 1974 later re-enacted as Edict No.6 of 1977 Section 2(1) of which provides as follows:-
“(m) In the interest of peace and order, all allotment of plots erroneously made by the plot Allotment Committee for wards 18H, 17H, and A1 before the date of commencement of this Edict and which have received the approval of his Highness, the Oba of Benin shall be deemed to have been validly made to those concerned.”
This is inter-alia made to show that the plaintiff/respondent was not throwing away his money when he re-bought the land in dispute for N2,400.00 from one Omorayi who claimed the land and asserted
that he derived his title from the Oba of Benin through ward ‘A’ because at one time the plot Allotment Committee Ward ‘A’ asserted their right over the area where the land in dispute is situated. The other purpose of the Edict was to clear once and for all the confusion that has arisen about grants relating to ward A and  ward ’17H.’
The Court of Appeal referred to this edict after making a finding of fact that the plaintiff/respondent was in actual possession of the land in dispute at the material time of trespass complained of and was not a trespasser.
By this reference it cannot be con trued to mean that the Court of Appeal was setting up for the plaintiff/respondent a case he did not make as submitted by counsel for the defendant appellant. It must he understood judicial notice of this edict by virtue of section 73 of the Evidence Act, and there was no need for Court a/Appeal to call on both counsel to address it before doing so. The answer to issue No.4 formulated by the defendant/appellant is YES.
Section 73(1)(a) of Evidence Act provides; 73(1) The Court shall take judicial notice of the following facts:-
(a) All laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force in any part of Nigeria “xxxxxxxxxxxx”.
The question to ask is what is the issue No.4 formulated by the Defendant/Appellant in that appeal which received a positive answer. The issue No. iv contained at page 93 lines 17-41 of the judgment goes thus:-
(iv) whether the Court of Appeal on its own motion can raise and apply the provision of the Boundary Dispute (Determination) Notice No. MSLN 72 of 1974 (later re-enacted as Edict No.6 of 1977) without calling on counsel to both parties to address the court on it.”
It can be seen that this case is in pari materia with the instant appeal. It can Therefore he seen that the Court of Appeal in the instant appeal can take judicial Notice of the Kaduna State Area Courts (Jurisdiction) Notice 1977 Laws of Kaduna State without calling on both counsel to address it he/ore doing so. Thus, the above issue is resolved in favour of the respondent.
As regards the 2nd or alternative issue of whether the issue of Jurisdiction can be taken suo motu by the Court of Appeal only when it is raised for the first time or made subject of cross-appeal, I have considered the submissions of both sides on this issue which is closely related to the first one. It would appear that the counsel to the Appellant predicated his view on the case of Ogunbadejo v. Owoyemi (supra) where at p. 530 the observation of G.B. A Coker, J .S.C in Lagos City Council v. Ajayi (1970) 1 All NLR 291 p. 296 on characteristics of Order 7 rule 13(1) of the former Rules of the Supreme Court was aptly quoted thus:
“Another characteristic of Order 7, rule 13(1) is that it is applicable only where the respondent intends to retain the judgment but at the same time wants it varied; so where a respondent intends for instance to dispute the jurisdiction of the court of trial or to contest competency of the entire proceedings or to maintain the absence of a fundamental prerequisite, it seems he cannot come under this rule. In that case he had to file a substantive cross-appeal. The basis for this is clear for a man cannot at the same time obtain an advantage by maintaining a particular standpoint and then seek to discard that same standpoint whilst keeping the advantage. As Lord Esher, M. R. observed in Roe VS. Mutual Loan Fund Ltd. (1887) 19 Q.B.D. 347 at p. 350:-
“I base my judgment on this, that the bankruptcy proceeded on the basis that the bill of sale was valid, and that this was with the knowledge and acquiescence and for the benefit of the plaintiff, who thereby affirmed that the bill of sale was valid, and cannot now be heard to say that it was invalid in order to obtain a further advantage. I cannot therefore agree with judgment appealed from, and the appeal must be allowed.”
See also Adeleye & Ors. v. Akin Olughade (1987) 3 NWLR (Pt. 60) 214 where the above decision as well as those in Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47 and Ogunlade v. Adeleye (1992) 8 NWLR (Pt. 260) 409 Pp. 242 and 425 were affirmed. The above series of Supreme Court decisions, I hasten to say differs materially from the instant appeal in that the issue of jurisdiction by Notice of Preliminary Objection was tied to the Kaduna State Area Courts (Jurisdiction) Notice which by virtue of S. 73 of the Evidence Act, the Court of Appeal is entitled to take judicial notice without inviting learned counsel to the parties to address the court upon. This same Notice materially affected the position of the Court of Appeal on this issue of raising jurisdiction in the case of Alhaji Hashimu Garba Matari & 6 Ors. VS. Ahmadu Dangaladima & Ors. (1993) 9 SCNJ 122; (1993) 3 NWLR (Pt.281) 266. The facts of this case is as will be found in body of the judgment. However, the 2nd issue raised in the appeal at the Supreme Court which is akin to the one in the Notice of Preliminary Objection is as follows:-
“Whether in the light of the Area Courts (Jurisdiction) Notice 1977 and consistent with the Area Courts Edict 1967, the Zaria City Area Court No. I is competent to adjudicate in respect of the land in
dispute which is situated in the Saba Local Government Area, in a context where by virtue of the Jurisdiction Notice and the Area Court Edict the Soba Local Government Area is shown to be within the area of jurisdiction of the Saba Area Court”.
On this issue the Supreme Court at pp. 137-138 per Karibi-Whyte, J.S.C., held thus:
“I have already pointed out that on the facts of this case, there was sufficient material before the court below to determine the issue of jurisdiction raised. The submission of learned counsel on the authority of Fadiora & Ors. VS. Gbadebo & Ors. (1978) 3 S.C. 219 is therefore misconceived. The point of law raised being an issue of appeal. Appellant in this case is challenging the competence of the court to adjudicate because of the location of the land in dispute. It is common ground that the land in dispute is situate in Matari, Matari is in Saba District. There is also Area Court grade 1 in Soba.
The action was brought in Soba Area Court grade 1. It was tried in the Zaria City Area Court No. I which exercises jurisdiction over the Zaria Town Council Area. Learned Counsel to the respondent has submitted to us that by virtue of section 18 of the Area Court Edict 1967 Zaria City Area Court No. I is empowered to adjudicate on all matters arising from any part of the then Zaria Local Government which includes the present Saba Local Government. It is important observe the clear provisions of the Area Courts (Jurisdiction) Notice, 1977 which clearly spelt out the jurisdiction of the Soba Area Court. In view of this notice, it is difficult to appreciate any merit in that submission.
It is well settled and decided cases are numerous in support of the proposition that one of the prerequisites of a court, in the exercise of its jurisdiction, is that the subject matter of the action must be within its jurisdiction, and there should be no feature in the case which prevents the courts from the exercise of its jurisdiction. See Madukolu v. Nkemdilim (1962) 1 All N.L.R. (Pt. 4) 587; (1962) 2 SCNLR 341.
Where the subject matter is not within the jurisdiction of the court of adjudication, there is nothing to adjudicate, and the decision so reached in the absence of jurisdiction is a nullity. Similarly all subsequent proceedings are a nullity.
In the instant case, Zaria City Area Court No. I which has jurisdiction only within the Zaria Local Government Area is not competent to adjudicate in respect of this land in dispute which is in Matari and under Soba Local Government Area. This is consistent with section 19 (3) which provides that:-
“All land cause shall be tried and determined by an Area Court having jurisdiction over the area in which is the subject matter of the dispute is situated …”
I have no doubt in my mind that the trial court, which is the Zaria City Area Court No. I lacked the requisite jurisdiction to adjudicate on the subject-matter of the action which is in respect of land situated in Matari, in Soba Local Government Area. Issue No. 1 is therefore resolved in favour of the appellants.
Having held that the trial court had no jurisdiction, all proceedings resulting from the invalid exercise of jurisdiction is a nullity See Macfoy v. U.A. C. Ltd. (1961) 3 All E. R.
The appeal succeeds on this grounds alone. It is therefore unnecessary to express any’ opinion in respect of the other issues canvassed.”
In the light of the foregoing authorities I am of the considered view that having regard to the provisions of S.19(3) of the Area Courts Law No.2 of 1967 together with the Area Courts (Jurisdiction) Notice 1977 Kaduna State vis-a-vis the Supreme Court decision is Alhaji Hashim Garba Matari & 6 Ors. v. Ahmadu Dangaladima & 1 Or. (supra) at p. 137, the Area Court No. 1 Zaria City has no jurisdiction to hear and determine the plaintiff/appellant’s claim, to wit being same parcel of farmlands situate at Tashan Filani, Anguwan Bakutaje Kunkumi Gwanki at Makarfi in Ikara Local Government. Thus, taking a que from the authority reviewed above, this court is empowered by S.73(1) of the Evidence Act to take judicial Notice of the Area Courts (Jurisdiction) Notice 1977. That being the case the jurisdiction of Zaria City Area Court No. I is limited within Zaria Local Government hence the court is not competent to adjudicate the farmland situate in Kunkumi in Makarfi District in the then Ikara Local Government.
In consequence, I agree with learned counsel to the Respondent that the trial as well as the judgment of Zaria City Area Court No. I delivered on 7/4/90 in respect of the aforesaid farmland situate in Kunkumi in Makarfi District of the then Ikara Local Government amount to a nullity. In consequence thereof the order of retrial by the High Court is also void. In sum, the preliminary objection is allowed, since the trial in the trial court and the proceedings and judgment based on same in the High Court have been declared a nullity, the present appeal being another proceeding resulting from invalid exercise of jurisdiction is also a nullity.
Consequently the appeal is dismissed with N500.00 costs.
Other Citations: (1993)LCN/0168(CA)
