The Minister of Works & Housing V. Alhaja Kuburat Shittu & Ors (2007)
LawGlobal-Hub Lead Judgment Report
OLUKAYODE ARIWOOLA, J.C.A.
This appeal emanated from the decision of the Kaduna State High Court which assumed jurisdiction on the Respondents claim to title to a landed property. The trial court had given judgment in favour of the Respondent on 17th October, 2003 having earlier, on 15th April, 2003 overruled the objection of the Appellant to jurisdiction of the trial Court to adjudicate on the matter.
The Respondents had by a Writ of Summons dated 11th February, 2002 commenced an action against the Appellant and claimed as follows:
“1. A declaration that by virtue of Certificate of Occupancy No. NC 4942 dated 26th
February, 1979 registered as No. KDR46 at page 46, Vol. 15 (Certificate of Occupancy) of the Lands Registry, Kaduna title in property No.1 Challawa Crescent, Kaduna rest in the Plaintiffs as
beneficiaries of the estate of Alhaji Lamidi Olusegun Ibiyeye (deceased).
- Declaration that the estate of late Alhaji Lamidi Olusegun Ibiyeye is entitled to continue exclusive possession of the No.1 Challawa crescent, Kaduna South covered by aforementioned Certificate of Occupancy No. NC 4942.
- Possession of Plot No. 1 Challawa Crescent, Kaduna covered by Certificate of Occupancy No. NC 4942 dated 26/2/79”
The Defendant/Appellant (hereinafter referred to as Appellant) after filing a three paragraph statement of defence to the Respondents’ claim moved his objection to the competence of the trial court to try the case, being the only point in defence. The objection was overruled and the substantive suit proceeded to hearing, the trial court having ruled that it had jurisdiction to try the matter. On 17th October, 2003 final judgment was delivered by M.T.M. ALIYU, J. of Kaduna High Court, in favour of the Plaintiffs/Respondents.
Dissatisfied with both the Ruling delivered on 15th April, 2003 and judgment delivered on 17th October, 2003, the Appellant appealed to this Court with a Notice of Appeal of two grounds as follows:
GROUND 1
“The learned trial Judge erred in law when he held that there are no extrinsic features in the Plaintiffs’ claim preventing him from assuming jurisdiction over the Plaintiffs/Respondents suit and eventually exercised jurisdiction and entered judgment against the Defendant/Appellant in a case where he ought not to have assumed jurisdiction.
PARTICULARS OF ERROR
(a) By virtue of Section 251(1) (r) of the Constitution of the Federal Republic of Nigeria, 1999 only the Federal High Court, to the exclusion of every other Court, has jurisdiction to hear, determine and grant the reliefs sought by the Plaintiff/Respondents (sic)
(b) The Plaintiff/Respondent’s (sic) reliefs being essentially declaratory in nature, were sought against the Defendant who by virtue of Section 147 and 148 of the Constitution of the Federal Republic of Nigeria, is an agency of the Federal Government.
(c) The Plaintiff /Respondent’s(sic) entire claim stems from the administrative decision/action of the Defendant/Appellant to eject the Plaintiff/Respondent’s(sic)tenants from the property known as No. 1 Challawa Crescent, Kaduna.
(d) The proviso to Section 251(1) (r) of the Constitution of Nigeria, 1999 does not seek to prevent an aggrieved party from seeking reliefs in Court but requires him to proceed to the Federal High Court in matters covered by the section.”
GROUND2
“The learned trial Judge erred in law in holding in effect, that he was empowered to assume jurisdiction over the Plaintiff/Respondent’s(sic) case by the combined effect of Section 315(5) of the Constitution of the Federal Republic of Nigeria, 1999; Sections 39(i) and 51 of the Land Use Act, 1978, Cap 202, Laws of the Federal Republic of Nigeria, 1990 despising the overriding effect of Section 251(1) (r) of the Constitution of the Federal Republic of Nigeria, 1999.
PARTICULARS OF ERROR
(a) The clear language of Section 251(1) (r) of the Constitution of the Federal Republic of
Nigeria overrides every other provisions in the constitution containing contrary provisions on issues affecting agencies of the Federal Government or the Federal Government itself.
(b) Section 315(5) of the Constitution of the Federal Republic of Nigeria, 1999 is subject in its application to the overriding effect of Section 251(1) (r) of the Constitution of the Federal Republic of Nigeria, 1999.”
Sequel to the leave granted by this Court, the Appellant’s brief of argument dated 27th February, 2006 was deemed properly filed and served on 6th March, 2006.
In the said brief of argument, the Appellant formulated only one issue for determination as follows:
“(i) Whether the Honourable trial court was right to assume jurisdiction over the suit on the strength of Section 315(5) (d) of the 1999 Constitution of the Federal Republic of Nigeria and Sections 39(1) (a) and 51 of the Land Use Act, 1976(sic) Cap. 202 Laws of the Federation, 1990 despite the overriding effect of Section 251(1) (r) of the 199(sic) Constitution.”
In arguing the appeal, learned Appellant’s counsel contended that the Respondents claim at the Court below was against the Appellant as an agent of the Federal Government by virtue of Section 147 of the 1999 Federal Constitution of Nigeria. And that the cumulative effect of Respondents claim bothered on the rightness or otherwise of the decision of the Appellant to take over property No. 1 Challawa Crescent, Kaduna South. Learned counsel referred to the relevant provisions of the Constitution; that is, Sections 251(1) (r) and 315(5) of 1999 Constitution and
Section 39(1) (a) and (b) of the Land Use Act. He submitted that a Court of law is only competent to adjudicate over a matter before it, if and only if it has jurisdiction to do so. Jurisdiction, is the bedrock of a Court’s competence to handle any suit brought before it, as any judgment or order delivered in absence of jurisdiction is a nullity. He cited; Ezenwo Nyesom Wike vs. Samuel Rogers Icheonwo & 1 Ors . (1999) 4 NWLR (pt 600) 618 at 625.
Learned counsel contended that jurisdiction of court is determined not only by the nature of the claim before the court but also by other considerations in the absence of which there can be no jurisdiction. He cited; FBN PIc vs. Jimido Farms Ltd. (1997) 5 NWLR (pt 503) 81 at 95. He submitted that it was wrong to conclude that it is only a party’s claim that determines the jurisdiction of a Court, as there are other considerations, such as an enabling statute, that can disqualify a Court from entertaining a suit.
Learned counsel further contended that by virtue of Section 251(1) of the Constitution, it is the Federal High Court but not State High Court that has jurisdiction to entertain the present suit. He submitted that Section 251(1) (r) of the Constitution specifically gives jurisdiction to the Federal High Court to the exclusion of any other Court in civil matter where the Federal Government or any of its agencies is a party. Therefore, he further submitted that Section 315(5) of the Constitution and Section 39(1) of the Lands Use Act should not be extended to limit the application of Section 251(1) (r) of the Constitution as that will amount to giving with one hand and taking it back with the other hand.
Learned counsel contended that for the purpose of Section 251(1) (r) of the Constitution, the Appellant is an agency of the Federal Government duly established by Section 147 of the Constitution. On the constitutional expression “….. any of its agencies”, he cited; University of Abuja vs. Professor Kingsley Owoniyi Ologe (1996) 4 NWLR (pt 445) 706 at 725, NEPA vs. Edegbenro & Ors. (2002) 18 NWLR (pt 798) 79 at 97.
Learned counsel submitted that the respondents’ claim being declaratory in nature challenges the validity of the decision of the Appellant to eject and take over from them the subject matter of this appeal. And that the Appellant’s decision being administrative, the trial court of state had no jurisdiction to entertain the matter. He cited; Nwude vs. Chairman EFCC (2005) All FWLR (pt 276) 740 at 755 and finally urged us to hold that the trial court lacked jurisdiction to entertain this matter as it did, allow the appeal and set aside the judgment of the trial court.
In response to the appeal, the respondents duly filed their joint undated brief of argument on 12th April, 2006. In the said brief and before proceeding to argue the substantive appeal, pursuant to Section 25(1) and (2) Court of Appeal Act and Order 3 rule 15(1) of this Court’s Rules of Procedure, raised preliminary objection to the appeal. The said objection is said to centre on the validity of the Notice and grounds of Appeal filed in this case.
Learned counsel referred to the Appellant’s notice of preliminary objection at the trial court which was overruled on 15th April, 2003. In the ruling, the trial court had held that it had jurisdiction to entertain the matter and therefore dismissed the objection and proceeded to hear the case and delivered judgment sometime on 17th October, 2003.
Learned counsel referred to the Notice of Appeal dated 29th October, 2003 but filed on 3rd November, 2003 challenging the ruling of the Court earlier delivered on 15th April, 2003 and the final judgment of 17th October, 2003.
He contended that the ruling of the trial Court delivered on 15th April, 2003 is an interlocutory decision of the Court which did not conclude the case. He submitted that, as a result, the Appellant needed to have obtained leave of either the trial Court or this Court before he proceeded to file the notice of appeal against the ruling along with that of final judgment. Learned counsel conceded that the appeals on both interlocutory ruling and final judgment can be filed together in one single appeal but submitted that since the period prescribed for filing each appeal is clear, there was need to obtain leave of Court to file out of time once the time had expired. He cited; Ogigie vs. Obiyan (1997) 10 NWLR (pt 524) 179 at 195 -196; NEPA vs. Eze (2001) 3 NWLR (pt 701) 606; Ayalogu vs. Agu (1998) 1 NWLR (pt 532) 129 at 141 – 142. He submitted that the notice of appeal filed in this suit being on the ruling of 15th April, 2003 and filed out of time without leave of court so to do, the notice was incompetent and should be struck out.
However, in the event that we hold contrary view on this matter, learned counsel proceeded to argue the appeal on the merit.
He formulated two issues as follows, which he argued together the two issues being interrelated, Issue No.1
“Whether the Kaduna State High Court has jurisdiction to declare title to land.” Issue No.2
“Whether the honourable court was right to assume jurisdiction in a dispute over title to land which is subject to Statutory Right of Occupancy involving an agency of the Federal Government and a citizen.”
As I stated earlier, learned counsel to the Respondents took the two issues together in his argument. He referred to the claim of the Respondents as endorsed on the Writ of Summons and averred in the Statement of Claim of 14 paragraphs. He also referred to the evidence adduced at the trial, both oral and documentary and Sections 39(1) and 51(1) of Land Use Act. Learned counsel submitted that the competence of a Court to hear a matter before it is dependent on the nature of the matter or cause put forward for adjudication by the Plaintiff but not the nature of defence canvassed.
On when a Court is said to be competent, he cited; Madukolu vs. Nkemdilim (1962) All NLR (pt 2) (reprint) 581 at 589 – 590. On the limited and unlimited jurisdiction of the Federal and State High Courts respectively, learned counsel cited; Minister of Works vs. Thomas (2002) 2 NWLR (pt 752) 740 at 788 -789. He contended that the dispute in this case being on title to land, only the State High Court will have jurisdiction to entertain the matter. He cited; Ado Ibrahim & Co. Ltd. vs. Eldestein (Nig.) Ltd. (2002)1 NWLR (pt 747) 50 at 72, NEPA vs. Adegbenro (2002) 12 SC (pt 2) 119 at 132, Onuorah vs. Kaduna Refining & Petrochemical Co. Ltd. (2005) 2 SC (pt. 2) 1 at 6.
He finally urged us to dismiss the appeal for lacking in merits and affirm the judgment of the Kaduna State High Court.
First and foremost, it is worthy of note at this juncture that the Appellant did not file a reply brief. In other words, the Appellant did not react or respond to the preliminary objection raised in the Respondents brief of argument.
There is no doubt that the Respondent is entitled to raise in his brief of argument a preliminary objection to the hearing of the appeal without filing a separate notice as done in the instant suit, yet it will amount to compliance with the Rules of this Court. See; Order 3 rule 15(1) Court of Appeal Rules, 2002. Equity Bank of Nigeria Ltd. vs. Halilco Nig. Ltd. (2006) 7 NWLR (pt. 980) 568.
However, it is now settled law that whenever a Respondent does not file a separate notice of preliminary objection to the hearing of an appeal giving three clear days notice thereof before the hearing but merely incorporates the preliminary objection in the Respondent’s brief of argument, it is imperative on the respondent to move the Court to take the preliminary objection first before proceeding to the main appeal. See; Mkpen Tiza & 1 Or. vs. Iorakpen Begha (2005) 33 WRN 158 at 171, or (2005) 15 NWLR (pt 949) 616 or (2005) 6 SCM 164, Onochie & Anor vs. Odogwu & Anor (2006) 17 WRN 1 at 20, (2006) 2 SCM 95 at 101 or (2006) 6 NWLR (pt 975) 65 at 79. But where the Respondent does not apply for or seek leave of court before the hearing of an appeal, to move his preliminary objection to the Appellant’s grounds of appeal, the preliminary objection automatically becomes and shall be deemed abandoned. See; Nsirim vs. Nsirim (1990) 3 NWLR (pt 138) 285, Arewa ile Plc vs. Abdullahi Brothers (1998) 6 NWLR (pt 554) Tiza vs. Begha (supra) Onochie & Ors. vs. Odogwu (supra)
It is note worthy that on 15th February, 2007 when this appeal came up for hearing, learned counsel to the respondent, Mr. T.O. Adekeye did not seek leave of court before the appeal was heard, to take the preliminary objection contained in the Respondents’ brief of argument.
He simply proceeded to argue the appeal. In the circumstance and without any further ado, the said preliminary objection is hereby taken and deemed as abandoned. It cannot be further countenanced. It is accordingly struck out.
Now to the main appeal, it is clear in this case that there is only one issue to determine the appeal and that is, whether or not the trial court was right to assume jurisdiction as it did over the suit.
There is no doubt that the issue of jurisdiction is a very fundamental one as it goes to the competence of the Court or tribunal, hence it can be raised at any stage of the proceedings in the High Court, as Court of first instance, or in the Court of Appeal, even in the apex court of the land.
The issue can also be raised by either of the parties or by the Court itself suo motu. See; Oloriode vs. Oyebi (1984) 5 SC 260 at 282, (1984) 1 SCNLR 390, Bronik Motors vs. Wema Bank Ltd. (1983) 6 SC 158, Senate President vs. Nzeribe (2004) 41 WRN at 60.
Similarly, issue of jurisdiction can be raised even for the first time in the Court of Appeal and without leave. As it is duty of the Judge or Justices, where there are sufficient facts, ex facie on the records establishing a want of competence or jurisdiction in the Court to raise it suo motu if the parties fail to draw attention of Court to it. See; Odiase vs. Agbo (1972) 1 All NLR (pt 1) 170, Senate President vs. Nzeribe (supra) at 57, Dickson Moses vs. The State (2006) 7 SCM 137 at 169.
As clearly stated earlier, this action was instituted by the Respondents herein against the Appellant. The trial court assumed jurisdiction, proceeded to hear the case and gave judgment in favour of the Respondents against the Appellant. There is no doubt that the issue in contest here on appeal is simple – It is either the trial court had jurisdiction or not to try the case as it did.
Generally, jurisdiction is a threshold issue that is fundamental to the exercise by a Court of the powers conferred on it by Section 6(6)(a) of the 1999 Constitution of Federal Republic of Nigeria. Any adjudication without jurisdiction is a nullity no matter how well conducted. See;
NDIC vs. CBN (2002) 7 NWLR (pt 766) 272, Equity Bank of Nigeria Ltd vs. Halilco Nig. Ltd. (2006) 7 NWLR (pt 980) 568 at 586.
It is trite law and it goes without saying that a Court must be competent to try a case before it proceeds to assume jurisdiction over the matter brought before it.
It is already settled that a Court is generally competent to adjudicate over a matter, only when all the conditions precedent for its having jurisdiction are fulfilled. As a result, a Court will be competent when –
(i) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another;
(ii) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevent the Court from exercising its jurisdiction; and
(iii) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are nullity, however well conducted and decided. The defect is extrinsic to the adjudication. See; Madukolu & Anor vs. Nkendilim (1962) All NLR 589 (2001) 3 SCM 185, Altine vs. Afribank PIc (2000) 15 NWLR (pt 687) Mark vs. Eke (2004) 5 NWLR (pt 865) 54, Cotecna International Ltd. vs. Ivory Merchant Bank Ltd. & 2 Ors. (2006) 5 SCM 17.
It has also long been settled that as a fundamental principle, that jurisdiction of a Court is determined by the Plaintiff s claim or relief. In other words, it is the claim before the Court that has to be looked at or examined, to ascertain whether or not it comes within the jurisdiction conferred on the Court. See; Adeyemi vs. Opeyori (1976) 9 – 10 SC 311, Western Steel Works vs. Iron & Steel Workers (1987) 1 NWLR (pt 49) 284, Tukur vs. Government of Gongola State (1989) 4 NWLR (pt 117) 517; Alhaji Ibarahim Abdul Hamid vs. Talal Akar & 1 Or. (2006 8 SCM 1 at 13. In the same vein, in considering whether or not a Court has jurisdiction to entertain a particular suit, it is the Plaintiff’s claim as endorsed on the Writ of Summons or averred in the statement of claim that is important at that stage but not the defence. See; Oba Aremo II vs. Adekanye & 2 Ors. (2004) 7 SCNJ 218 at 231, (2004) 8 SCM 9, Alphonsus Nkuma vs. Joseph Otunuya Odili (2006) 4 SCM 127 at 143. But where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. It is a nullity. See; Attorney General for Trinidad & Tobago vs. Erichie (1893) AC 518 at 522 – 523, Timitimi vs. Amabebe 14 WACA 374.
In the instant case, the Respondents claim as endorsed on the Writ of Summons earlier stated is a declaration of title to a landed property on Certificate of Occupancy No. NC 4942 dated 26th February, 1979 registered as No. KDR46, at page 46 Volume 15 of the Lands Registry, Kaduna.
Ordinarily, Section 39 (1)(a) & (b) of the Land Use Act gives the High Court the power to adjudicate on matters on land, the subject of a Statutory Right of occupancy. It reads;
“The High Court shall have exclusive original jurisdiction in respect of the following proceedings:
(a) Proceedings in respect of any land the subject of a statutory right of occupancy granted by the Governor or deemed to be granted by him under this Act; and for the purposes of this paragraph, proceedings include proceedings for a declaration of title to a statutory right of occupancy;
(b) Proceedings to determine any question as to the persons entitled to compensation payable for improvements on land under this Act”
From the above, it is clear that as between the High Court and other Courts, lower in jurisdiction such as Magistrate, Customary, Area Courts etc, it is the High Court that has exclusive original jurisdiction on any matter on land or landed property, the subject of a statutory right of occupancy. In particular and including proceedings for declaration of title to such right. See; Patrick Erhunmwunse vs. John Ehanire 14 (pt 2) NSCQR 819 at 826.
Furthermore, the position of the law now is that the High Courts in the States also have jurisdiction over matters involving customary rights of occupancy, a jurisdiction which was hitherto vested only in the customary and area courts. See; Adisa vs. Oyinlola (2000) 10 NWLR (pt 674) 116, (2000) FWLR (pt 8) 1349, Sule Sanni vs. Durojaiye Ademiluyi (2003) 4 SCM 145 at 161 – 162.
However, a Court may by statute lack jurisdiction to deal with a particular matter, though the claim ordinarily appears to be within its competence. As between Federal and State High Courts, a particular feature may rob the State High Court of competence to adjudicate on a matter. For instance, Section 251(1) (r) of the 1999 Constitution provides thus:
“Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters
…………………………………………
…………………………………………
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies”
The Appellant herein, who was the Defendant at the trial court is, being a Minister in the Executive arm of the Federal Government, an agency of the Federal Government.
The position is also a creation of the Constitution. See; Sections 14(3) and 147 of the 1999 Constitution, University of Abuja vs. Prof. Ologe (1996) 4 NWLR (pt 445) 706.
The above constitutional provision is aimed at vesting in the Federal High Court, exclusive jurisdiction in matters in which the Federal Government or any of its agency is a party. It follows therefore that a State High Court, notwithstanding the nature of the claim or subject matter in the action, would no longer have jurisdiction in such matter.
See; National Electric Power Authority vs. Mr. B. Edegbero & 15 Ors. (2002) 18 NWLR (pt 789) 79, (2003) 9 WRN 1 at 18.
It must be taken as settled therefore that by virtue of Section 251(1) of the 1999 Constitution, where the Federal Government of Nigeria or any of its agencies is a party to a suit, it is not the nature of the claim as endorsed on the Writ of Summons or averred in the Statement of Claim that determines whether or not the State High Court has jurisdiction to adjudicate on the matter. The only Court vested with jurisdiction on such matters as listed in the Constitution is the Federal High Court of Nigeria. In NEPA vs. Edegbero (supra) the Supreme Court per Ogundare, JSC at page 18 on Section 230(1) (q), (r) and (s) of 1979 Constitution which is inpari materia with Section 251(1) (q), (r) and (s) of 1999 Constitution of the Federal Republic of Nigeria, states thus;
“….. the aim of paragraphs(q), (r) and (s) of sub-section (1) of Section 230 was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agents was a party. A State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action”
In the result, we are satisfied that this appeal is meritorious and it succeeds. The trial Kaduna State High Court lacked the required competence to adjudicate on the matter as it did. The only issue for determination is hereby accordingly resolved in favour of the Appellant but against the Respondents.
In the circumstance, the appeal is allowed. The judgment of M.T.M. Aliyu J, in Suit No. KDH/KAD/625/2001 delivered on 17th October, 2003 is hereby set aside.
I make no order for costs.
Other Citations: (2007)LCN/2283(CA)
