Mr. David Odetayo V Mr. Michael Bamidele (2007)

LAWGLOBAL HUB Lead Judgment Report

I. KATSINA-ALU, J.S.C

The respondent herein is the successor in interest to late Oba Jacob Olayiwola Omiyale. The late Oba was the Olushin of Iji Ishin. The appellant David Odetayo brought this action in the Kwara State High Court, Omu aran for a declaration that he is entitled to possession of the parcel of land in dispute, damages for trespass and injunction. The trial High Court gave judgment in favour of the plaintiff. The defendant, late Oba Omiyale appealed against the decision of the High Court to the Court of Appeal, Ilorin Division upon a number of grounds from which nine (9) issues were distilled. During the pendency of the appeal at the Court of Appeal, Oba Omiyale died and was substituted by his son Michael Bamidele as the appellant. The Court of Appeal heard and determined the appeal before it on issue of jurisdiction only and came to the conclusion that the Kwara State High Court lacked jurisdiction to determine the suit, the land in question not being an urban area. The court below relied on the cases of Oyeniran v. Egbetola (1997) 5 NWLR (Pt. 504) 122 and Salati v. Shehu (1986) 1 NWLR (Pt. 15) 198. The plaintiff has now appealed to this court. The parties filed their respective briefs of argument. The appellant (plaintiff) raised a lone issue for determination in his brief of argument. It reads: “Whether the Court of Appeal was right in law to hold as it held that the Kwara State High Court lacked original jurisdiction to entertain the suit on the authorities of Oyeniran v. Egbetola (1997) 5 NWLR (Pt. 504) 122 and Salati v. Shehu (1986) I NWLR (Pt. 15) 198 in the light of Adisa v. Oyinwola (2000) 6 SC NJ 290; (2000) 10 NWLR (Pt. 674) 116 which judgment was delivered by the Supreme Court on 23rd June. 2000.”‘For the respondent, a similar issue was submitted, which reads: “Whether having regard to the decision of this court in Alhaji Karimu Adisa v. Emmanuel Oyinwola (2000) 10 NWLR (Pt. 674) 116, the decision of the Court of Appeal denying the competence of the Kwara State High Court to exercise original jurisdiction over the claims of the appellant on the ground that the claims relate to title covered by a customary right of occupancy is maintainable.” It is common ground that the land the subject matter of the dispute between the parties is located in Iji in Irepodun Local Government Area of Kwara State a non-urban area and thus land subject to a customary right of occupancy. The contention of the appellant is short. In the light of the decision of the Supreme Court in the case of Adisa v. Oyinwola (supra) a State High Court including Kwara State High Court Omuaran has concurrent jurisdiction with Area Court to hear and determine questions and or issues relating to land notwithstanding whether the land is located in an urban or non-urban area. The respondent rightly in my own view, conceded that having regard to the case of Adisa v. Oyinwola (supra), the decision of the Court of Appeal in this case is wrong. He urged on the court to send the case back to the Court of Appeal for determination of the remaining issues not determined by that court. By the decision of this court in Adisa v. Oyinwola (supra) the position now is that a State High court has concurrent jurisdiction with Area or Customary Courts on land in rural areas. The unlimited jurisdiction of the State High Court in civil and criminal matters is only subject to the provisions of the Constitution. Neither the Land Use Act in its entirety or any other law for that matter could take away, limit, restrict or detract from that unlimited jurisdiction. It is now clear and beyond any argument that section 41 of the Land Use Act 1978 cannot oust the unlimited jurisdiction of the State High Court as provided by section 236 of the Constitution as amended. I must also mention, for clarity, that the Land Use Act, not being an integral part of the Constitution, where its provisions are inconsistent with those of the Constitution, then those provisions are to that extent, void. See Lemboye v. Ogunsiji (1990) 6 NWLR (Pt. 155) 210: Ebiteh v. Obiki (1992) 5 NWLR (Pt. 243) 599 among others. As I indicated earlier, the Court of Appeal considered only the issue of jurisdiction. There were nine (9) issues submitted before that court for determination. Eight remaining unresolved. I believe that it would be in the interest of justice to remit the case to the court below for determination on the merits. As I noted earlier on, the respondent has conceded the appeal.In the result this appeal succeeds and I allow it. Consequently, I set aside the decision of the Court of Appeal given on 6th July, 2000. I however order that the case be remitted to the Court of Appeal for determination on the merits. There shall be cost of N I0,000.00 in favour of the appellant.

SC.108/2002