ALH. SABITU ABDULLAHI ZUNTU V. ALH. MUHAMMED SAMBO SULEIMAN ZUNTU(2001)

ALH. SABITU ABDULLAHI ZUNTU V. ALH. MUHAMMED SAMBO SULEIMAN ZUNTU

(2001)LCN/0955(CA)

In The Court of Appeal of Nigeria

On Thursday, the 15th day of March, 2001

CA/K/187/99

JUSTICES

ISA AYO SALAMI Justice of The Court of Appeal of Nigeria

RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria

Between

ALH. SABITU ABDULLAHI ZUNTU – Appellant(s)

AND

ALH. MUHAMMED SAMBO SULEIMAN ZUNTU – Respondent(s)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

It is settled law that jurisdiction is the fundamental basis on which the court exercises its judicial power See: A.G. LAGOS STATE vs. DOSUNMU (1989) 3 NWLR (Pt.111) 552, where therefore a court has no jurisdiction it cannot exercise it coercive power See: AKINBOLOLA vs. WILSON FISKO (1991) 1 NWLR 273 at 284 par. D.

In this appeal the issue of jurisdiction should be tried first. See: OSITA NWOSU VB. IMO STATE ENVIRONMENTAL AUTHORITY (1990) 2 NWLR Pt.135, 688 SC.

The determination of the issue of jurisdiction does not mean that the claim is not feasible, it only means that the claim was commenced in a wrong place. The Kaduna State High Court has no geographical jurisdiction to commence and conclude the plaintiff’s claim. In MADUKOLU VS. NKEMDILIM (1962) 1 ALL WLR 587 at 595. The Supreme Court of Nigeria prescribed the indices for jurisdiction, which are that jurisdiction may imply authority of the court to adjudicate over a matter, See: EJIKE VS. IFEADI (1990) 4 NWLR (Pt.142) 89 CA, which is not the case here. The geographical area in which the jurisdiction of the court can be exercised must be right. The geographical area is also called Venue. See: G. TUKUR VS. GOVERNOR OF GONGOLA STATE (1989) 4 NWLR Pt.560. PER OMAGE, J.C.A.

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A. (Delivering the Leading Judgment): In the court below the Respondent in this appeal sued the Appellant by a writ of summons filed in the High Court Kaduna, Kaduna State, and claimed the following reliefs:

(a) An order that the defendant should render account of the proceed of the Land form in file No. KD. 1119 opened in July, 1990 in the plaintiffs name at Federal Capital Development Authority (Land Department) Garki Abuja.

(b) An order that the defendant should surrender the title documents in respect of land file No KD. 1119 opened in the name of the plaintiff sometime in July, 1990 at the Federal Capital Development Authority Land Department Garki Abuja.”

At the hearing of the claim in the court below the Respondent called three witnesses, while the appellant called two witnesses to deny the plaintiff’s claim, the court ruled in favour of the Respondent in the court below, the judgment in the said court is coram Donli J. The following was the subject of appeal in this court.

(a) That the plaintiffs claim was not for a declaration of title but for a return of title document.

(b) That the title deed on the said land was in the name of the plaintiff.

The judgment was delivered on 19/6/99. On 5/10/99 upon an application by the judgment debtor the defendant, the learned trial judge ordered a stay of the judgment. The defendant was aggrieved by the judgment and filed one ground of appeal from which the Appellant formulated only one issue viz:

“Whether the lower court had jurisdiction to entertain the suit.”

The Respondent adopted the same issue in his brief filed by order of court made on 28/11/00. The appellants brief was filed on 20/12/99.

In his submission that the learned trial court has no jurisdiction to try the case the appellant deposed at the trial that he lives and resides in Minna Niger State and at Abuja with his family, that he has a house in Kaduna, but that he does not reside there. That the transaction took place in Abuja outside the jurisdiction of the lower court. That the subject matter of the suit that is the land. situates in Garki Abuja, outside the jurisdiction of the court below. Appellant submitted that the court below failed to rule on the issue of jurisdiction when it was raised at the hearing, however jurisdiction may be raised at any stage of the proceedings. He said an issue of jurisdiction must be determined by the court once raised, since jurisdiction cannot be acquired by consent of the parties.

In his submission, in his brief the respondent adopted the issue of jurisdiction formulated by the Appellant, and deposed that the lower court has jurisdiction to entertain the matter because the entire transaction in the matter took place in Kaduna.

He said the appellant and the respondent have been in communication with each other in Kaduna and that it was in Kaduna that the defendant/appellant refused to return to the Respondent the said title deeds and turned down the demand for account on the proceeds thereof. Respondent submitted that it is the plaintiff’s claim at the trial, which determines the jurisdiction of the court. UNIVERSITY OF CALABAR vs. EPHRAIM (1993) NWLR (Pt.271) 551 at 562. He said the issue before the court is not one of a declaration of title over a plot of land at Abuja and that the evidence of PW1, PW2, DW1 and DW2, show that the cause of action arose in Kaduna within the jurisdiction of the lower court. He urged the court to dismiss the appeal.

A summary of the facts leading to the action is desirable here in order to better understand the cause of action in the court below. The appellant and the Respondent are cousins of the first degree since the Respondent is the son of the sister of the father of the Appellant. The record shows that the appellant would appear to be more literate than the Respondent who was said to be and alkali and had once lived in Abuja with the Appellant to run errands.

In the year 1990, the respondent who filed the suit in the court below said he requested one Alhaji Mohammed Saka to grant to him a parcel of land in Ahuja. He said Mohammed Saka agreed to do so. Respondent said he then asked the appellant to assist him to obtain and fill the form in Abuja. The form for land having been obtained was brought to him by the appellant to sign in Kaduna which he did.

In Abuja, land file number KD.1119 was opened in July, 1990. Before this, 4 photographs of passport size of his was obtained together with his tax clearance certificate were conveyed by Respondent to Mohammed Saka in Abuja.

Eventually, the Appellant informed the Respondent that the certificate for the land had been issued and he with Appellant went to show gratitude to Mohammed Saka. To his knowledge the Appellant collected the said land certificate and kept same in his custody. Sometime after the Respondent said the appellant told him that he would wish to exchange his own plot elsewhere in Abuja for Respondents own in Maitama, but this was never done. Subsequently the respondent said he demanded the return of the title document of the land at Maitama, but the Appellant refused, and neglected to return to the Respondent the said title deeds. Respondent said in 1996 in the presence of others. the Appellant admitted possession of the title document of the land demanded by the Respondent but refused to surrender same. The Appellant said that he does not live in Kaduna, but that he lives with his family in Abuja, and sometimes lives in Minna. even though he has a house in Kaduna he does not live there. He said Alhaji Saka does not know the Respondent, and that it is not true that he ever met Baka with the Respondent. He said he it was who collected the land form from Alhaji Saka, and requested the now Respondent, then the plaintiff to fill the form, because he desired that the land be granted in plaintiff’s name. He said, he paid for the grant and the issue of the certificate. Thereafter he caused a building plan to be made, and has developed the land. He said in 1992 in Kaduna, and in 1996 in Zuntu, he had paid in appreciation of the use of Respondent’s name to obtain the land. He said he paid N20,000 to the chief of his area in Zuntu, and asked that the money be forwarded to the Respondent in settlement of the grouse of the Respondent. He said he received the said land for himself. Subsequently testimonies at the hearing show that the Respondent rejected the said sum of N20,000.00.

As recorded above, the only issue for determination in this appeal is the issue of jurisdiction, whether or not the court below was possessed of jurisdiction to hear the plaintiff’s claim. The learned counsel for the respondent has submitted that the action against the appellant is one in personam, not an action in rem. In my view the issue in dispute is one of a claim for a chattel not realty.

A chattel of course is a movable property or any movable possession other than a real estate or a landed property. Both realty and chattel are interests in land.

In the given case in this appeal, the claim of the plaintiff in the court below is for proceeds of the land i.e. rent etc, and the certificate which is an interest in the land. The law which governs the place for instituting such a claim is contained in the High Court Civil Procedure rules of where the land situates. The incidents of the land on which the certificate is demanded by the plaintiff from the defendant is located in Abuja, and it is not in dispute that the land is so located in Abuja. That law of the High Court of the Federal Capital Territory Abuja Civil Procedure Rules 1989, Decree, now Act No.56 is in order 10 of the said rules which provide for “the place of instituting and trial of suits” rule one thereof subscribes as follows:

“All suits relating to land or any mortgage or charge thereon or any other interest therein or for any injury thereto and also all actions relating to personal property distrained a seized for any cause shall where the land is situated or the distress or seizure took place in the High Court of the Federal Capital Territory Abuja be commenced and determined in the High Court of the Federal Capital Territory Abuja.”

The demand for the title deed by the Respondent of the land is in respect of the land situate, at Abuja. The second claim of the Respondent as the plaintiff in the court below is for proceeds on the land. Both demands constitute interests or incidents on the land located in Abuja. The applicable rules require that the claim be commenced and determined in Abuja, consequently the hearing and determination of the claim of the plaintiff outside the territorial jurisdiction of the court where the land resides is without jurisdiction.

In this appeal the issue of jurisdiction should be tried first. See: OSITA NWOSU VB. IMO STATE ENVIRONMENTAL AUTHORITY (1990) 2 NWLR Pt.135, 688 SC.

The determination of the issue of jurisdiction does not mean that the claim is not feasible, it only means that the claim was commenced in a wrong place.

The Kaduna State High Court has no geographical jurisdiction to commence and conclude the plaintiff’s claim. In MADUKOLU VS. NKEMDILIM (1962) 1 ALL WLR 587 at 595. The Supreme Court of Nigeria prescribed the indices for jurisdiction, which are that jurisdiction may imply authority of the court to adjudicate over a matter, See: EJIKE VS. IFEADI (1990) 4 NWLR (Pt.142) 89 CA, which is not the case here. The geographical area in which the jurisdiction of the court can be exercised must be right. The geographical area is also called Venue. See: G. TUKUR VS. GOVERNOR OF GONGOLA STATE (1989) 4 NWLR Pt.560.

In this appeal, the proper venue for determination of the plaintiffs now Respondents claim is the High Court of Abuja Federal Capital Territory. For the said reason, the judgment of the High Court Kaduna is set aside for lack of jurisdiction. The appeal succeeds.

I make no order as to costs.

ISA AYO SALAMI, J.C.A.: I read before now the judgment just delivered by my learned brother. Omage, JCA in draft and I agree with the reasoning and the conclusion arrived thereat. The only issue, calling for determination in this appeal, is the jurisdiction of the trial court to entertain the suit.

Since it is trite that jurisdiction or competence of a court is determined by the nature of plaintiff’s claim, I shall set out plaintiffs claim: Adeyemi v. Opeyori (1976) 9 – 10 SC 31. MV Scheep v. MV “S. Araz” 2000 82 LRCN 3131.

In the court below, the respondent herein claimed against the appellant in the Kaduna State High Court of Justice the following reliefs:-

(a) An order that the defendant should render account of the proceeds of the Land Form in file No.KD. 1119 opened in July, 1990 in the plaintiffs name at Federal Capital Development Authority (Land Department Garki Abuja.

(b) An order that the defendant should surrender the title documents in respect of land file No. KD. 1119 opened in the name of the plaintiff sometime in July, 1990 at the Federal Capital Development Authority Land Department, Garki Abuja (underlining mine)

Clearly the claim revolves round an interest in a parcel of land situate in Abuja going by the endorsement on the respondent’s writ of summons already set out. At the hearing of the action, the appellant protested the jurisdiction of the trial court which ignored him. Learned trial judge, in spite of the objection, proceeded to entertain and determined the action in favour of the respondent who incidentally was the plaintiff. He has renewed his objection to the competence of the learned trial judge to entertain the suit here. The simple and clear answer to this dispute can be found in the provisions of order 10 of the Kaduna State High Court (Civil Procedure) Rules Cap 68 of the Laws of Kaduna State of Nigeria, 1991 dealing with place of Instituting and of trial of suits. Rule 1 thereof reads as follows:-

“1. All suits relating to land, or any mortgage or charge thereon, or any other interest therein. or for any injuries thereto and all actions relating to personal property distrained or seized for any course, shall be commenced and determined in the judicial Division in which the land is situated, or distress or seizure took place.”

The title deed being demanded is in respect of a piece of land situate at Abuja. This claim as well as the first relief asking for account constitutes interest or incident on a land situate in Abuja and not in Kaduna State. It follows that the jurisdiction of the trial court, being a court outside Abuja Capital Territory. is ousted by the provisions of order 10 rule 1 of the Kaduna State High Court (Civil Procedure) Rules Cap 68.

I, too, for this reason and the fuller reason contained in the judgment of my learned brother, Omage J.C.A., allow the appeal. I set aside the judgment of the trial court. The plaintiff’s claim is hereby struck out. I endorse the order as to costs proposed in the lead judgment of my learned brother. Omage, JCA.

RABIU DANLAMI MUHAMMAD, J.C.A: I have had a preview of the judgment just delivered by my learned brother Omage JCA. I am in complete agreement with his reasoning and conclusion. It is manifest from the facts of this case, the Kaduna High Court lacks jurisdiction to entertain the matter since the land in question is situated in Abuja. I too allow the appeal and set aside the judgment of the lower court. I make not order as to costs.

Appearances

Yahaya Mahmood Esq;For Appellant

AND

Sanusi Abubakar Esq;For Respondent