ALHAJI BELLO ARABA v. AMUSA SALAKO OGUNSIJI (2011)

ALHAJI BELLO ARABA v. AMUSA SALAKO OGUNSIJI

(2011)LCN/4676(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of July, 2011

CA/I/181/2008

RATIO

DECISIONS OF COURT: ON WHAT BASIS ARE CASES DECIDED

It is trite law that cases are decided on the basis of facts presented before the court, issues raised by parties and existing law at the time of the case. See:- Rossek vs. A.C.B. (1993) 10 SCNJ 20 at 86; Governor of Oyo State v. Oba Ololade Afolayan (1995) 9 SCNJ 50 at 64; Abu v. Odugbo (2001) 7 SCNJ 262 AT 293. See – Section 41(1) of the Customary Court Law Edict No.2 of 1984. Also section 25 of the Magistrate Court Law Cap. 70 vol. IV Laws of Oyo State. PER SIDI DAUDA BAGE, J.C.A.

INTERPRETATION OF STATUTE – SECTION 1 & 315 OF THE I999 CONSTITUTION: INTERPRETATION OF SECTION 1 & 315 OF THE 1999 CONSTITUTION AS TO THE SUPREME COURT OF THE CONSTITUTION OVER ANY OTHER LAW MADE IN CONFLICT WITH ITS PROVISION

Section (1) of the Constitution of the Federal Republic of Nigeria provides. “The constitution is supreme and its provision shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria” Also sub-section 3 to section 1 of the 1999 Constitution provides:- “If any other Law is inconsistent with the provisions of the constitution the constitution shall prevail and that other law shall to the extent of the inconsistency be void.” The provision above, established without any doubt the supremacy of the Constitution over any other law made in conflict with its provision. On the issue at stake, the 1999 Constitution section 315 provides that: – “Subject to the provision of this constitution, an existing law, shall have effect with such modification as may be necessary to bring into conformity with the provisions of the constitution and shall be deemed to be:- (a) An Act of the National Assembly to the extent that it is a law with respect to any matter on which National Assembly is empowered by this Constitution to make Laws; and (b) A law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by the Constitution to make Laws. Sub section 5 to section 315 provides: – “Nothing in this Constitutions shall invalidate the following enactments that is to say:- (a) The National Youth Service Corps Act. (b) The public complaints commission Act. (c) The National Security Agencies Act. (d) The Land Use Act. PER SIDI DAUDA BAGE, J.C.A.

JURISDICTION: MEANING OF JURISDICTION; PRINCIPLES GUIDING THE COURT IN DEALING WITH THE ISSUE OF JURISDICTION

Jurisdiction is the moving force of the court. It gives the court the blood line to function and the oxygen to stay alive. It is the focal component of the court, so much that the Supreme Court case of African Newspapers of Nigeria Ltd. & Ors. v. The Federal Republic of Nigeria (1985) 2 NWLR (Pt.6) 137 at 159 – 160 fixed its pole – star or guide (per Oputa, J.S.C. (as he was) thus: “The quarrel over the jurisdiction of courts is by no means new but these quarrels have left certain significant beacon lights to guide the courts when dealing with jurisdiction or the lack of it:- (1) Judges ought not to encroach or enlarge their jurisdiction because by so doing the courts will be usurping the functions of the Legislature – per Holt C.J. in Ashby v. White (1703) Lord Raymn 938. (2) Nothing shall be intended to be out of the jurisdiction of the Superior Court, but that which specifically appears to be so; and on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged: Peacock v. Bell and Kendall (1667) 1 Sound 74. (3) Although the courts have great powers yet these powers are not unlimited. They are bound by some lines of demarcation – Abbott, C. J. The King v. Justices of Devon (1819) Chit Rep. 37. Courts are creatures of statutes and the jurisdiction of each court is therefore confined, limited and circumscribed by the statute creating it. (4) The court is not hungry after jurisdiction – Sir Williams Scott. The two friends (1799) I. C. (5) Judges have a duty to expound the jurisdiction of the court but it is not part of their duty to expend it – Kekewich J. In re Montagu (1897) LR I.C.D. (1897, P.693) (6) A court cannot give itself jurisdiction by misconstruing a Statute – Pollock, B. Queen v. County Court of Lincoinshire and Dixon (1897) L.J. (N.S.) 57 Q.B.D. 137.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

ALHAJI BELLO ARABA Appellant(s)

AND

AMUSA SALAKO OGUNSIJI Respondent(s)

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of the High Court of Oyo State sitting at Ibadan (hereafter called “The Trial Court”) delivered by Hon. Justice M. A. A. Abass, J, of 19th December, 2006, wherein the claim of Respondent to this appeal at the Customary Court Grade ‘C’ Ogbere Idi-Osan Ibadan, in Suit No. 161/2003 against the Appellant then as defendant is as follows: –
“The plaintiff is asking for the Ejection from the land at Koshibi village Bioku Area, Kajola Olode New Ife Road, Ibadan in Suit No.161/2003.
At the conclusion of the trial at the Grade ‘C’ Customary Court, judgment was handed down in favour of the Respondent/Plaintiff. The Appellant being dissatisfied, lodged an appeal before the Chief Magistrate Court, Ibadan, when the Appeal came up for hearing on the 24th May, 2004, learned counsel for the Respondent Mr. Bayo Alade moved the court orally under the inherent jurisdiction of the court challenging the competency of the court to hear the Appeal from Grade ‘C’ Customary Court. It is his contention inter-alia, that Magistrate Courts in Oyo State are not vested with statutory backing to hear Appeals on Land matters from Customary Courts especially land matters. The learned Chief Magistrate upheld the objection raised by the counsel to the Respondent before the court, that the Chief Magistrate’s court lacks the jurisdiction to entertain Appeals bothering on land matters from’ the decision of the Customary Courts.
The Appellant being dissatisfied with the decision of the learned Chief Magistrate striking out the Appellant’s appeal on the ground of lack of jurisdiction again appealed to the High Court of Justice, Ibadan Oyo State.
The Appellant filed only one ground of appeal. It reads thus “The learned Chief Magistrate erred in law when she held that the Chief Magistrates Court lacks jurisdiction to adjudicate on appeal from the Customary Court on land matters”. The High Court of Oyo State Coram Abass J. held that the learned Chief Magistrate was right to have declined the jurisdiction to entertain the appeal from the decision of the Grade ‘C’ Customary Court on a land matter, the appeal was accordingly dismissed.
The Appellant still dissatisfied with the Ruling of the Learned Trial Judge, appealed to this court vide a Notice of Appeal dated the 21st of December 2006. From the three (3) grounds of Appeal, the Learned counsel to the Appeal distilled a sole issue for determination viz: –
”Whether the Magistrate court in Oyo State have jurisdiction to hear Appeal from Customary Courts on land matters”
The learned counsel to the Respondent in their brief of argument also identified a sole issue for determination of this appeal from the 3 grounds of appeal viz: –
“Whether the Magistrate Courts in Oyo State have jurisdiction to entertain appeal from Customary Courts on land matters “which brothers on Customary right of occupancy”.
In arguing the appeal on the sole issue for determination learned counsel to the Appellant had submitted that in considering the respondents claim against the Appellant at the Grade ‘C’ Customary Court seeking for the ejection from the land of Koshibi village Bioku Area Kajola Olode off New Ife Road Ibadan, Evidence was taken by the Customary Court and judgment was given in favour of the plaintiff/Respondent.
Learned Counsel submitted further that the Customary Court Judge, in reaching his decision like the learned Chief Magistrate relied heavily on the case of J. A. Okafor vs. P.H.M. Okwonkwo (2002) 17 NWLR (pt.796) 262 at 263- The facts of this case are not on all fours with the present case on Appeal. In Okafor’s case, the Court of Appeal Enugu division was faced with the interpretation of Magistrates Court Law cap. 88. Laws of Anambra State 1988, Section 17 (2), and section 49 (1) (a) (b) of the Customary Courts law cap. 38 laws of Anambra State 1991, which are amendments to Magistrate Court laws conferring original jurisdiction on some Magistrates in land matters in Anambra State.
Learned Counsel further submitted that in this present case on Appeal there is no equivalent provision of section 17 (2) or section 49 (1) of the Anambra State Law in Oyo State. The decision of the Okafor’s case is good as these amendments, no doubt ran contrary to the content and letters of the Land Use Act.
Learned Counsel further submitted that as to what then is the provision of the law guiding the present case.
It is trite law that cases are decided on the basis of facts presented before the court, issues raised by parties and existing law at the time of the case. See:- Rossek vs. A.C.B. (1993) 10 SCNJ 20 at 86; Governor of Oyo State v. Oba Ololade Afolayan (1995) 9 SCNJ 50 at 64; Abu v. Odugbo (2001) 7 SCNJ 262 AT 293. See – Section 41(1) of the Customary Court Law Edict No.2 of 1984. Also section 25 of the Magistrate Court Law Cap. 70 vol. IV Laws of Oyo State. None of these laws are the Magistrates Court given an original jurisdiction in respect of land matter in Oyo State. On the right of appeal to be conferred by statute. See:- Joseph Ohai v. Samuel Akpoemonye (1999) 1 SCNJ 73 at 79.
Learned Counsel further submitted that by virtue of the Customary Court Laws and the Magistagte Court Law of Oyo State a Magistrate Court has jurisdiction to hear Appeal from the Customary Court in the State. The Anambra State Law considered in Okonkwo’s case is not in pari material with the Oyo State Laws.
Learned Counsel further submitted that assuming but without conceding that he (Learned trial judge) has no jurisdiction to hear the Appeal the Learned Trial High Court Judge was also wrong not to have assumed jurisdiction on the case as it is trite law that the law is where there is a cause of action there must be a remedy, failure of the Learned trial judge to assume jurisdiction robbed the Appellant the opportunity to have a remedy for the wrongful act of the Respondent. This court is therefore urged to allow the Appeal, set aside the judgment and orders of the High Court of Oyo State and remit the case back to the Magistrate Court for trial.
In reply learned counsel to the Respondent submitted that contrary to the submission; of the Appellant’s counsel, the case of J. A. Okafor vs. P.H.M. Okonkwo (2002) 17 NWLR (Pt.796) 262 at 63, the facts of this case on all fours with the present case on Appeal. In Okonkwo’s case the issue for determination only was “whether the High Court of Anambra State has jurisdiction to entertain an appeal from the Customary Right of Occupancy”.
Learned counsel further submitted that it is conceded that by virtue of the provisions of section 41 (1) of the customary courts Law (cap 41) Laws of Oyo State (2000) and section 25 of the Magistrate courts Law (cap 82) laws of Oyo State (2000), the Magistrate shall hear and determine Appeals from Customary Courts within his district in accordance with the provisions of the Law or Act under which such Customary Courts are constituted. The Magistrate Courts in Oyo State however have no original jurisdiction in respect of land matters
Learned counsel submitted further that by virtue of section 315 of the 1999 constitution of the Federal Republic of Nigeria, the Land Use Act is an existing law and that being an Act of the Natonal Assembly; it is supreme to any other law on land matters. Therefore section 25 of the Magistrate Court Law is subject to the provisions of the constitution and the Land Use Act. See:- Section 315 of the Constitution of the Federal Republic of Nigeria 1999, especially section 315 (5). Also Section 9 (2) of the Constitution of Federal Republic of Nigeria 1999.
Learned Counsel submitted further that section 41 of the Customary Court’s Law (cap 41) Laws of Oyo State (2000) and 25 of Magistrate’s Courts Law (cap 82) Laws of Oyo State (2000) are inconsistent with sections 39 and 41 of the Land Use Act (cap 202) Laws of Federation 1990, and by virtue of section 315 of the 1999 Constitution the Land Use Act is supreme to the Customary Courts Law and Magistrates Courts Law of Oyo State. By virtue of section 39 of the Land Use Act only the High Courts have exclusive original jurisdiction in respect of Land matters within the state. However section 41 of the Land Use Act provides for an Area Court or Customary court or other court of equivalent jurisdiction is a state shall have jurisdiction in respect of a Customary Right of Occupancy granted by a Local Government under this Act.
Learned counsel further submitted that the validity of section 49 of the Customary Court’s Law and 25 of the Magistrates Courts Law of Oyo State (2000) take their bearings from the date of promulgation of the Land Use Act of 1978 when by operation of section 315 (1) and (4) of constitution of Federal Republic of Nigeria (1999) and section 1 (1) and (3) of the Constitution mentioned (supra) the said Oyo State Laws are inconsistent with the provisions of section 39 and 41 of the Land Use Act which by virtue of section 315 is an Existing Law being an enactment of the National Assembly by virtue of section 315 (3) of the constitution. The definition is to b’80 found in section 315 (4) (6) of the constitution.
Learned counsel submitted further that since section 25 of the Magistrates Court Law of Oyo State (2000) is void by reason of its inconsistency with provisions of section 39 and 41 of the Land Use Act, the Magistrate Courts in Oyo State’s Jurisdiction to entertain appeals from the decisions of the Customary Courts no longer exists thereby rendering the provisions of the law moribund and ineffectual. See:- Okafor v. Okonkwo (2002) 17 NWLR (Pt.796) 262 at 271 ratio 6.
Learned counsel submitted further that only the High court in Oyo State is vested with jurisdiction to hear appeal from the decisions of the Customary Courts in Land matters despite the appellate jurisdiction conferred on the Magistrate by virtue of section 41 (1) and (2) of the Customary courts Law of Oyo State. Also the phrase “other court of equivalent jurisdiction in a state” in section 4rof the Land use Act, does not contemplate a Magistrates court which is genetically unrelated to an Area or customary Court. See:- Okafor vs. Okonkwo (supra) at page 272 (Ratio 8). See:- Also the decision in the case of Okafor vs. Akanonu (2002) 3 NWLR (Pt.753) 109 at 114 Also 119-120 paragraphs H-D-E.
Learned Counsel submitted further that by the Doctrine of “covering the field”, the Court of Appeal Enugu Division gas decided in the case of Okafor vs. Okonkwo (supra) at page 286 (paragraphs A – B) that, “the essence of the doctrine of covering the field is to support the principle of the hierarchy of legislation as a practical demonstration of the Supremacy of the Federal Act when Federal and State Legislations touch upon the same subject matter.
Learned Counsel submitted further that by the doctrine of covering the field, the Land Use Act which was the Legislation enacted for the regulation of transactions in Land Matters throughout the country covers the: entire gamut of control and management of Land within the country, hence the Land Use Act supersede all States Legislations on the matter EXCEPT any one that is expressly saved by the Act, consequently, the Land Use Act having covered Legislative field, any State Legislation that is inconsistent with the Act is to the extent of the inconsistency void. See: -Okafor vs. Okonkwo (supra) at page 297 (paragraphs C-E); Council of the University of Ibadan vs. Adamolekun (1967) 1 All NLR 213; Lakanmi A. V. Western State (1970) 6 NSCC 143.
Learned Counsel submitted further that the authorities cited brief of argument of the Appellant do not fit into the particular facts and are therefore inappropriate. See: – Kenneth Ogoala vs The State (1991) 2 NWLR (Pt.175) 509 at 535 paragraphs E – F. This court is urged to dismiss this appeal.
In considering this appeal, page 5 paragraph 4.07 of the Respondent’s brief of argument becomes very apposite. Where in the Respondent admitted as follows:
“My Lords, I concede with respect Sirs that, section 41 (1) of the of the Customary Courts Law (cap 41) Laws of Oyo State (2000) and section 25 of Magistrate Courts Law (cap 82) Laws of Oyo State (2000) provide as follows:- section 41 (1) “Any person aggrieved by the decision or order of a Grade ‘C’ Customary Court in any cause or matter civil or criminal may within thirty days of the decision or order appeal to a Magistrate court”………… Section 25 of the Magistrate Court’s Law, (cap 82) Laws provides as follows:- Subject to the provisions of any other Law or Act, a Magistrate shall hear and determine Appeals from Customary Courts within his district in accordance with the provisions of the law or Act under which such Customary Courts are constituted”.
The Respondent has admitted the existence of those Laws (supra) which are the hanger used by the Appellant from the customary court’ to the Magistrates court, to the High court and finally to this court’ no further proof of their existence, will further be required for in the determination of this appeal. See: Hauwa Ubudu v. Bulama Abdul-Razak (2001) 7 NWLR (Pt.713) 669; N.I.D.B. v. Olalomi Industries Ltd. (2002) 28 WRN 66; Mohammed Sani Abacha v. The State (2002) 9 MJSC 1; A.G. Fed. Vs. A.G. Abia State (2002) NSCQR 163.
However this is not the end of the matter. The Respondent had contended further that although the Laws (supra) exist’ their existence is made superfluous by virtue of section 315 of the 1999 constitution and section 39 and 41 of the Land use Act, which is an existing law and that being an Act of the National Assembly, it is supreme to any other Law on Land matters.
It is pertinent to state here that the Appellant had filed no reply brief and in his main brief did not address the question of the supremacy of the constitution of the Federal Republic of Nigeria 1999 over any Law which is inconsistent with its provision, also the supremacy of the Act of the National Assembly over and above a piece of legislation passed by a State Assembly. The Appellant Counsel in his own wisdom argued the appeal in another direction which will also be considered in this judgment. The duty now becomes that of the court to consider those provisions of the Constitution and the Land Use Act cited by the Learned Counsel to Respondent.
Section (1) of the Constitution of the Federal Republic of Nigeria provides.
“The constitution is supreme and its provision shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”
Also sub-section 3 to section 1 of the 1999 Constitution provides:-
“If any other Law is inconsistent with the provisions of the constitution the constitution shall prevail and that other law shall to the extent of the inconsistency be void.”
The provision above, established without any doubt the supremacy of the Constitution over any other law made in conflict with its provision.
On the issue at stake, the 1999 Constitution section 315 provides that: –
“Subject to the provision of this constitution, an existing law, shall have effect with such modification as may be necessary to bring into conformity with the provisions of the constitution and shall be deemed to be:-
(a) An Act of the National Assembly to the extent that it is a law with respect to any matter on which National Assembly is empowered by this Constitution to make Laws; and
(b) A law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by the Constitution to make Laws.
Sub section 5 to section 315 provides: –
“Nothing in this Constitutions shall invalidate the following enactments that is to say:-
(a) The National Youth Service Corps Act.
(b) The public complaints commission Act.
(c) The National Security Agencies Act.
(d) The Land Use Act.
Under the Land Use Act the relevant provisions in relation to the present Appeal, are sections 39 and 41.
Section 39,(1) of the Land Use Act (cap L5) Laws of the Federation of Nigeria 2004 provides: –
“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 includes proceedings for declaration of title to a statutory right of occupancy.
(b) Proceedings to determine any question as to the persons entitled to compensation payable for improvement on Land under this Act.
(2) All laws including rules of court, regulating the practice and procedure of the High Court shall apply with respect of proceedings to which this section relates and the laws shall have effect with such modification as would enable effect to be given to the provision of this section,”
Section 47 of the Land Use Act provides –
“An court or Customary court or other court of equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings in respect of a customary right of Occupancy granted by a Local Government under this Act; and for the purposes of this paragraph “proceedings” include proceedings for a declaration of title to a customary right of occupancy and all laws including rules of court regulating practice and procedure of such courts shall have effect with such modifications as would enable effect to be given to this section”
The main contention in this appeal relates section 41(1) of the Customary Courts Law (Cap 41) Laws of Oyo State (1984) and section 25 of the Magistrate Courts Law (cap 82) Laws of Oyo State (2000), which provides that a Magistrate shall hear and determine Appeal from Customary Courts within his district in accordance with the provisions of the Law and Act under which such Customary Court are constituted.
This court earlier on provided section 1 (1) of the 1999 Constitution, which established the supremacy of the constitution over any other Law which is in conflict with its provisions. The provision of section 315(1) and 4 of the 1999 Constitution, validate promulgation of the Land Use Act itself, by the provisions of section 39 and 41 (supra) clearly and unambiguously provided for the courts with jurisdiction on Land matters of the first instance to include High Courts where the Land the subject of as statutory right of Occupancy granted by the Governor, and the Area Court or Customary Court or other court of equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings in respect of a Customary right of occupancy granted by a Local Government under this Act. Under section 6 (1) of the 1999 Constitution which is equivalent to section 4 of the 1979 Constitution the judicial powers of the Federation is vested in the courts’ section 6 (1) Provides:-
“The judicial powers of the Federation shall be vested in courts to which this section relates being courts established for the Federation.”
Section 6(2) Provides –
“The Judicial powers of a State shall be vested in the courts to which this section relates being established subject as provided by the constitution for a State.”
Section 6 (4):-
“Nothing in the foregoing provisions on this section shall be construed as precluding.
(a) The National Assembly or any House of Assembly from establishing court other than those to which the section relates with subordinate jurisdiction to that of a High Court.
(b) The National Assembly or any House of Assembly or any House of Assembly which does not require it from abolishing any court which it has power to establish or which it has brought into being.
Section 6 (5) (k) Provides: ‘
“Such other courts as may be authorized by law to exercise jurisdiction at first instance or on Appeal on Matters with respect to which a House of Assembly may make laws.
Now considering the provisions of section 315 (3) (c) and (d) of the 1999, constitution all Existing laws must be made in conformity with the provisions of the Constitution Section 315 (3) provides:-
“Nothing in this constitution shall be construed as affecting the power of court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law that is to say…
(c) An Act of the National Assembly; or
(d) Any provision of this Constitution.”
The provisions of section 39 and 41 of the Land Use Act (supra) is an Act of the National Assembly. The combined effect of both section 6 (4) (k) of the 1999 Constitution, and also section 315 (3) (c) and (d) of the same constitution made Land matters to form an item on the Exclusive Legislative List. By the clear provisions of the 1999 constitution ‘stated (supra) State Legislature cannot legislate on Land matters. In view of the above therefore the decisions of this court in Okafor v. Akanonu (2002) 17 NWLR (pt.796) 262 at 271 were rightly decided.
In Okafor vs. Okonkwo (supra), Hon. Justice M. D. Mohammed of this court at Ratio 6 stated:-
“If the provisions of sub section 17(1) of the Magistrate’s Court Law is declared void, the Customary Court Law provision being dependent on the existence of the former becomes Otise by virtue of this invalidation. The State Law which had conferred the Magistrate’s Court appellate jurisdiction has therefore been rendered in operative because the circumstances that bring it to being has crashed and stands removed. To borrow some jargon from modern telephony there has in tie circumstance, ensued “a system failure” and the Magistrates court is without the necessary “net work” It must have to bring its appellate powers in respect of land matter alive. The Lower Court was manifestly right in so holding.”
I find the erudite statement of Mohammed (JCA) on all fours with the current appeal before this court.
Another area to comment upon is the Doctrine of “Covering the field”. The Law with respect to the application of the doctrine of covering the field should apply equally between the constitution and any other Law whether Federal or State where the constitution completely, exhaustively or exclusively stated the law governing a particular matter or set of Rights and Duties that is the end of the matter. See: – A.G. Federation vs. A.G. Abia (2002) 3 SC. 106, or (2002) 6 NWLR (Pt.763) 264 at 386; Giremabe v. Bornu N. A. (1961) 1 All NLR 469 at 471; Tajudeen Aro v. Lagos Island Local Movement Council (2001) 32 WRN 72; Balarabe Musa and Ors. vs. INEC and anor. (2003) 11 WRN 110; C.G.G. vs. Etuk (2004) 1 NWLR (Pt.853) 20; A.G. Ondo State v. A.G. Federation (2002) 4 SC 1 or (2002) 9 NWLR (Pt.772) 222; A.G. Ogun State v. Aberuagba (1985) 1 NWLR (Pt.3) 395. Going by the doctrine of covering the field, the Oyo State House of Assembly cannot legislate on this matter which the constitution of the Federal Republic of Nigeria 1999 as amended has adequately covered as stated (supra). In this regard therefore section 41(1) of the Customary Courts law (cap 41) Laws of Oyo State (1984) and section 25 of Magistrate Court Law (cap 82) Laws of Oyo State (2000) which conferred upon the Magistrate court the jurisdiction to take appeal from the decision of Grade ‘C’ Customary Court in any cause or matter civil or criminal, including land matters becomes in operational on appeals bordering on Land matters, by the operation of the 1999 Constitution.
Let me comment on the Appellant’s attempt to distinguish the decision of this court in Okafor vs. Okonkwo (supra). He had maintained that, that decisions the facts are not on all fours with the present appeal, with respect the two cases can exist on exactly similar facts. The bottom line of the two decisions the facts are not on all fours with the present appeal, with respect the two cases can exist on exactly similar facts. The bottom line of the two decisions come unto one and only one fact, the State House of Assembly cannot legislate on an issue or an item on the Exclusive Legislative List stated earlier on in this judgment.
Again the learned counsel to the Appellant stated at page 6, the last paragraph of his brief of argument as follows:-
“My Lord assuming but without conceding that he (Learned trial judge) has no jurisdiction to hear the Appeal the learned Trial High Court Judge was also wrong (with absolute respect) not to have assumed jurisdiction on the case as it is trite Law the Law is where there is a cause of action there must be a remedy failure of the learned trial judge to assume jurisdiction has robbed the Appellant the opportunity to have a remedy for the wrongful act of the Respondent.”
From the facts of this appeal, the matter went before the learned High court Judge on Appeal, and not in his original jurisdiction. If as suggested by the learned counsel to the Appellant, the learned High Court judge in the circumstance on a matter which came on appeal, should proceed to assume jurisdiction, the said learned High court judge would have done so in clear violation of section 39 (1) of the Land Use Act (supra) which provided that the High court shall have exclusive original jurisdiction on any Land the subject of a statutory right occupancy granted by the Governor or deemed to be granted by him under the Act. Such action by the learned judge would have been unconstitutional, Ultra Vires, and of no effect whatsoever. The learned High Court Judge was therefore absolutely right to have refused to assume jurisdiction on the matter even though invited to do so. Above all there is no ground of Appeal at the High court covering this alternative prayer. see:- Page 42-43 of the record of Appeal, so it goes to no issue.
Also no issue for determination covering the third ground of appeal page 3 of the Appellant’s brief of argument, a sore issue for determination was distilled which does not cover the third (3) ground of the appeal. The said third ground is therefore deemed abandoned.
On the whole therefore this appeal lacks merit and it is hereby dismissed by this court.
The judgment of Abass J. in suit 1/3A/2006 delivered on the 19th of December, 2006, dismissing the appeal before it as lacking in merit is according affirmed by this court.
Costs is awarded in the sum of thirty thousand Naira (N30,000.00) in favour of the Respondent.

MODUPE FASANMI, J.C.A.: I had the advantage of reading the lead judgment of my learned brother S. D. Bage J.C.A.
All the issues canvassed have been adequately dealt with. I entirely agree with the reasoning and conclusion arrived at, that the appeal lacks merit and it ought to be dismissed.
I also dismiss same and abide with the consequential orders made in the lead judgment including cost.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the privilege of reading in advance the robust judgment prepared by my learned brother, Bage, J.C.A., with which I completely agree with the following few words, by way of emphasis, on this important area of jurisprudence.
It is not in doubt that the subject-matter of the appeal both in the Chief Magistrate Court and the court below was in respect of the appellate jurisdiction of a magistrate court in Oyo State over land cases.
Subject-matter jurisdiction was, therefore, the crux of the appeal in the said courts, which was, also, renewed on this appeal. The celebrated case of Gabriel Madukolu & Ors. v. Johnson Nkemdilim (1962) 1 ALL N.L.R. 587 at 595 tackled the issue of subject-matter jurisdiction as follows:
“Put briefly, a court is competent when –
1. ………………………………………..
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
3. ………………………………….”
See also Orubu v. N.E.C. & Ors. (1988) 12 SCNJ 254 at 301-302, 305.
Jurisdiction is the moving force of the court. It gives the court the blood line to function and the oxygen to stay alive. It is the focal component of the court, so much that the Supreme Court case of African Newspapers of Nigeria Ltd. & Ors. v. The Federal Republic of Nigeria (1985) 2 NWLR (Pt.6) 137 at 159 – 160 fixed its pole – star or guide (per Oputa, J.S.C. (as he was) thus:
“The quarrel over the jurisdiction of courts is by no means new but these quarrels have left certain significant beacon lights to guide the courts when dealing with jurisdiction or the lack of it:-
(1) Judges ought not to encroach or enlarge their jurisdiction because by so doing the courts will be usurping the functions of the Legislature – per Holt C.J. in Ashby v. White (1703) Lord Raymn 938.
(2) Nothing shall be intended to be out of the jurisdiction of the Superior Court, but that which specifically appears to be so; and on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged: Peacock v. Bell and Kendall (1667) 1 Sound 74.
(3) Although the courts have great powers yet these powers are not unlimited. They are bound by some lines of demarcation – Abbott, C. J. The King v. Justices of Devon (1819) Chit Rep. 37. Courts are creatures of statutes and the jurisdiction of each court is therefore confined, limited and circumscribed by the statute creating it.
(4) The court is not hungry after jurisdiction – Sir Williams Scott. The two friends (1799) I. C.
(5) Judges have a duty to expound the jurisdiction of the court but it is not part of their duty to expend it – Kekewich J. In re Montagu (1897) LR I.C.D. (1897, P.693)
(6) A court cannot give itself jurisdiction by misconstruing a Statute – Pollock, B. Queen v. County Court of Lincoinshire and Dixon (1897) L.J. (N.S.) 57 Q.B.D. 137.”
Now section 25 of the Magistrate Courts Law (cap.82) Laws of Oyo State, 2000, gives general appellate powers to a Magistrate’s court in these words:
“Subject to the provisions of any Law or Act a Magistrate shall hear and determine appeals from customary courts within his district in accordance with the provisions or the Law or Act under which such customary courts are constituted.”
Specific provision was, however, earlier made in 41 (1) of the Customary courts Law (cap. 41) Laws of Oyo State (formerly Edict No.2) of 1984, vesting appellate jurisdiction in a Magistrate over civil and criminal matters arising from customary court Grade “C” in these words:
“Any person aggrieved by the decision or order of a Grade C Customary Court in any cause or matter, civil or criminal, may within thirty days of the date of the decision or order, appeal to a Magistrate’s Court.”
Obviously a decision in a land dispute such as the one at stake is a civil cause or matter within the range or ambit of section 41(1) of the Customary Courts Law (supra) read in conjunction with section 25 of the Magistrate Courts Law (supra). Civil causes and matters relating to land are, however, presently under the compendium of the Land Use Act, 1978, (the Act), and preserved as a Federal enactment in section 315 (5) (d) and (6) of the Constitution of the Federal Republic of Nigeria, 1999, (1999 Constitution) as amended.
The Land Use Act is, also, accorded constituted force like any other provision of the Constitution by section 315(5) (d) of the 1999 constitution as was the case with the previous section 274 (5)(d) of the Constitution of the Federal Republic of Nigeria, 1979 (the 1979 constitution). See Nwocha v. Governor of Anambra State (1984) 1 SCNLR 634.
Section 315(6) of the 1999 Constitution (former section 274 (6) of the 1979 Constitution) goes further to recognize the Land Use Act as a Federal enactment under the Exclusive Legislative List in section 4(1) (2) and (3) of the 1999 Constitution (former section 4(1)(2) and (3) of the 1979 Constitution) incorporating part 1 of the second schedule thereto (former Second Schedule to the 1979 Constitution).
It is trite that original or appellate or supervisory jurisdiction of a court is conferred by the constitution, or an enactment, as the case may be – see Onitiri v. T.O.S. Benson (1960) F.S.C. 150 at 155 per Ademola, C.J.F. thus:”Finally it is a well known principle of law that the conferment of rights of appeal limits the jurisdiction of the court whose decision it is sought to be appealed, and extends the jurisdiction of the court to which the appeal lies, also it is also a cardinal principle that the curtailment of the jurisdiction of any court must be effected clearly and definitely, not necessarily perhaps by express words, but at least by the clearest possible implication.”
See again Ehuwa v. Ondo State Independent Electoral Commission & Ors (2006) 12 SCNJ 259 at 268 – 269 and Nwaigwe & Ors. v. Okere (2008) 5 SCNJ 256 at 271-272 (per the lead judgment of Onnoghen, J.S.C.)
The decisive quaere is whether the Legislature of Oyo State had the powers to enact section 41 (1) of the Customary Courts Law (supra) vesting appellate jurisdiction in a Magistrate’s Court over any decision or order of a Grace ‘C’ Customary Court in respect of a cause or matter pertaining to land. The Customary Courts Law in question was enacted in 1984, when the 1979 Constitution was then in force.
Section 4(7)(a) of the 1979 constitution stipulated that:
“The House of Assembly of a State shall have power to make laws… with respect to the following matters, that is to say:-
(a) Any matter not included in the Exclusive Legislative List set out in part 1 of the Second Schedule to this Constitution.” (My emphasis).
Section 6(5) (k) of the 1999 constitution also re-echoed section 4(7)(a) of the 1979 constitution.
By enacting section 41 (1) of the Customary Courts Law (supra), the Legislature or Government of Oyo State overshot its legislative tarmac and encroached on the legislative powers of the National Assembly contained in the Exclusive Legislative List of the 1999 Constitution, the successor of the 1979 constitution, in utter breach of section 6(5)(k) of the 1999 constitution (similiter section 4(7)(a) of the 1979 constitution).
Section 41 (1) of the Customary Courts Law (supra) is, accordingly, ultra vires the legislative competence of the Oyo State Legislature and is void for violating the said constitutional provisions together with sections 39 and 41 of the Land use Act and is hereby struck down – See the African Newspaper case (supra) warning against jurisdictional gluttony and expansion of jurisdiction of a court by legislative sleight of hand (permit the expression) or through the back door. See also section 274(3)(c) and (d) of the 1979 Constitution, repeated in section 315(3) (c) and (d) of the 1999 Constitution, read with the case of Giremabe v. Bornu N. A. (1961) 1 ALL NLR 469 at 471 thus:”By section 64(4) of the Constitution of the Federation of Nigeria, if any law inconsistent with any law validly made by the Federal Parliament, the law made by parliament shall prevail and the Regional law shall, to the extent of the inconsistency, be void.”
The striking down of the said provision of the State Law is, therefore, premised on the State concerned exceeding its legislative powers without more.
Section 25 of the Magistrate courts Law (supra) came into operation in 2000, when the 1999 constitution was already in place. Section 6(4) (a) of the 1999 Constitution empowers any State Legislature to establish courts subordinate to the High Court; while section 6(5)(k) therefore provides in the clearest of terms that the subordinate courts in existence or created by the State Legislature to exercise jurisdiction at first instance or on appeal must have their jurisdiction limited to”
“…matters with respect to which the House of Assembly may make laws.”
See Section 4 (6) (7) of the 1999 Constitution and A-G, Abia State v. A-G, Federation (2002) 6 NWLR (Pt.763) 264 at 386.
Therefore, section 25 of the Magistrate Courts Law (supra) cannot also, be used to enlarge the appellate jurisdiction of a Magistrate’s Court in Oyo State over land matters constitutionally reserved for the National Assembly under the Exclusive Legislative List, in my opinion.
The Okafor v. Okonkwo case (2002) 17 NWLR 262 reviewed in detail our early decisions to the contrary in Chikelue v. Ifemeludike (1997) 11 NWLR (Pt.529) 390, Mba v. Ibe (1999) 4 NWLR (Pt.597) 97 and Enugwu v. Okefi (2000) 3 NWLR (Pt.650) 620 and overruled them for having been arrived at per incuriam the hierarchical relationship between the Land Use Act (a superior legislation) and the Magistrates Court Law (an inferior legislation). Speaking for my modest self, I do not find any sound reason to depart from Okafor v. Akanonu (supra) and Okafor v. Okonkwo (supra); the more so, both decisions were not shown to have been reached wrongly or erroneously, nor are both decisions shown to be perpetuating injustice and impeding proper development of the law – see Bucknor-Maclean v. Inlaks Ltd. (1980) 8 – 11 S.C. 1, Ojokolobo v. Alamu (1987) 3 NWLR 377, Odaye v. Nigeria Airways Ltd. (1987) 2 NWLR 126, Oduola & Ors. v. Coker & Ors. (1981) 5 S.C. 197 and Orubu v. N.E.C. & Ors. (supra) at 273, 293.
For the above reasons and the exhaustive reasons contained in the opinion of my learned brother, Bage, J.C.A., I too would dismiss the appeal and affirm the resourceful judgment of the court below (Abass, J.) upholding the well written ruling of the learned Chief Magistrate (His Worship O. O. Olatunji, Mrs.) striking out the appeal on ground of lack of jurisdiction. I commend Messrs. Asanike and Alade for the appellant and the respondent, respectively, for the industry put in their respective briefs of argument on the appeal.