Wulemotu Badiru V Aminatu Eletu (1967)
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ADEMOLA,C.J.N.
This is a second appeal In a case in which the plaintiff claims £100 damages for trespass by the defendant on his land, £50 damages for the nuisance caused by the defendant on the plaintiffs dwelling house, and an order for removal of the structure causing nuisance to the said house. The plaintiff is a lessee of the land at 184 Adeniji Adele Road, Lagos which is the Area Of Law of the action and on which he built and occupied a dwelling house on a portion, leaving portion of the land vacant.
When the case came up for hearing before the senior magistrate, Lagos, the defendant’s counsel raised the question of the jurisdiction of the learned magistrate stating that the magistrate is without jurisdiction to hear the case because the claim as it stood raised an issue of interest in land. In other words, he relied on section 14(2)(a) of the Magistrates’ Court (Lagos) Act, which reads to clear the point whether or not the plaintiff was claiming an easement of light to the dwelling house.
The notes taken by the learned magistrate as from this stage are worth recording and they are as follows-
“Mr. Oseni, plaintiffs counsel addresses to the effect that the plaintiff claims ownership of the land on which the defendant is alleged to have erected a structure, he further stated that the defendant, by her action, in spite of protests, thus claims a right In the land which is adverse to plaintiff’s claim of ownership, but holds the view that the plaintiff’s claim against the defendant is for the abatement of nuisance and that there Is no question of interest in, or tide to land involved as such
The defendant’s solicitor on his part said that his client’s case borders on an easement of light.”
After these brief addresses of counsel, the court ruled that the plaintiff’s claim relates to an interest in land, and that it is without jurisdiction to adjudicate on the dispute between the parties. The plaintiff was dissatisfied with this ruling and he appealed to the High Court of Lagos. The learned Judge who heard the appeal, after hearing arguments, dismissed the appeal. The plaintiff therefore appealed to this Court,
Before us, the respondent’s counsel who had not filed an objection to the appeal, raised the point that the appeal was not properly before us as the appellant had obtained no leave as required by law, and referred to the case Odedina v. Fashina (1959) 4 F.S.C. 77.
The appellant’s counsel thereupon made his application to the court for leave to appeal out of time which was duly granted by us as we now have power to do under section 117(4) of the Constitution. The argument which ensued centred around the action of the learned magistrate in ruling that he had no jurisdiction without any evidence before him upon which he could decide whether or not the matter before him raised any issue as to the title to land, or to any interest in land.
Reference was made to the case Oluwo and another v. Adebowale 4 F.S.C. 143 at p. 145 where it was decided that the magistrate must decide the issue on the evidence before him. The relevant portion of the judgment in that case reads-
“The jurisdiction of magistrates in the Federal Territory of Lagos is set out in section 14 of the Magistrate’s Court (Lagos) Ordinance (Cap. 113). In the case of a Magistrate Grade 1, with which we are here concerned, it is limited to a claim for £200 with the proviso, amongst others, that the magistrate shall not exercise original jurisdiction in any cause or matter which raises any issue as to the title to land, or to any interest in land. Although not stated expressly the proviso should be read with the qualification that the issue as to title must be raised bona fide. Whether the issue is raised bona fide or not is an interlocutory matter for the magistrate to decide on the evidence before him, and, ordinarily, he should decide it as soon as the issue is raised, before assuming or continuing to exercise jurisdiction to hear the case.”
We approve of the opinion expressed by this Court in this passage and only wish to add that the words “on the evidence before him” must not be taken to mean oral evidence only; it includes admissions, documentary and any other material available to a court of law.
In the instant case, however, we see no evidence before the learned magistrate upon which it can be truly said that the issue of title was raised bona fide, and it was wrong of the learned magistrate to arrive at the decision at that stage of the trial merely because the issue of title to land was raised by the defendant/respondent when there was nothing but the plaintiff’s claim before the court and that, standing by itself, did not raise an issue of interest in land.
In the circumstances, this appeal must be allowed. Both the judgments of the learned magistrate and that of the learned judge on appeal are hereby set aside and we would have sent the case back to the learned magistrate for a re-hearing but for the fact that counsel for the appellant agreed with counsel for the respondent that the whole area of the land in dispute has changed and that the buildings complained of had been pulled down and that the subject-matter of the complaint had disappeared.
The appeal is allowed with costs to the appellant in this court assessed at 50 guineas. Costs of £2-2s.0d, awarded in the magistrates court and £6-6s.0d, in the High Court respectively, if paid, are to be refunded and costs in both courts will be in favour of the plaintiff/appellant assessed at 8 guineas and 20 guineas respectively.
Other Citation: (1967) LCN/1367(SC)
