AJANI & ORS v. THE PRESIDENT AND MEMBERS OF OLORUNDA GRADE ?C? CUSTOMARY COURT & ANOR (2016)

AJANI & ORS v. THE PRESIDENT AND MEMBERS OF OLORUNDA GRADE ?C? CUSTOMARY COURT & ANOR

(2016)LCN/8383(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 23rd day of March, 2016

CA/I/169/2003

JUSTICES

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

1. ALHAJI MURAINA A]ANI
2. BAMIJOKO ADUKE
3. OLABODE ALAGBE
4. MRS. OLANIKE
(For themselves and on behalf of Mafikuyomi family) Appellant(s)

AND

1. THE PRESIDENT AND MEMBERS OF OLORUNDA GRADE ?C? CUSTOMRY COURT
2. MRS. TAIWO Respondent(s)

APPEAL: NOTICE OF PROCEEDING; IMPLICATION OF THE FAILURE TO SERVE THE NOTICE OF PROCEEDINGS

The law is as stated by the Appellants learned counsel in the Appellant’s brief of argument at paragraphs P4 where a party is entitled to notice of a proceeding and there is failure to serve such a party, the failure is a fundamental defect which goes to the root of the competence (jurisdiction of the Court to deal with the matter. See (LEEDO’S case at 4725 paragraph C-D:SKENCONSULT (NIG) LTD AND ANOR VS. UKEY (1981) 1 S.C. 6 AT 27.
In the case of GEOSITE SURVEYS (NIG) LIMITED VS. CHIEF FRIDAY E. NWAGBARA 2007 PART 386 ALL FWLR PAGE 742 AT 765 766 this Court held that:-
“Once the issue of proper service is raised in adjudication, it becomes a question of right which is not subject to the exercise of discretion by the trial judge. No discretion is reposed in a Judge to deny a litigant a right to be put on notice and to be present in Court to answer to claims levied against him/her. Notice is a fundamental right reposed in the litigant, and he who claims/seeks against the other, has the duty to ensure that the other party against whom he claims/applies is put on good notice of current dates. Failure to put the party on notice is not a mere irregularity but a fundamental defect which goes to the root of the proceedings. A denial of a principle of fair hearing which requires that the other party which may be adversely affected must be put on notice of the proceedings is a constitutional breach. It cannot be wished away by reference to the provisions of a rule of procedure. For this reason alone, the entire proceedings, of the High Court is vitiated. To proceed further with the other issues would be a venturing into an academic exercise.
It follows naturally that the decision of the learned trial Court was made without jurisdiction and is hereby set aside. PER. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This appeal challenges the Ruling of the Oyo State High Court in which an order of certiorari to quash the decision of the President and members of the Olorunda Grade C Customary Court in suit No.7/98 of 22/10/98 was made. The said Ruling was delivered on the 29th March, 2001 by the Hon. Justice R. G. Oyetunde.

The brief facts of the suit which transmitted to this appeal started with suit No.7/98 taken out by the Appellants before the Lagelu Local Government Grade ‘C’ Customary Court Olorunda. The Court was presided over by the 1st Respondent who gave judgment against the 2nd Respondent but in favour of the Appellants.

The subject matter was the Ownership of a piece of land lying situate and being at Mafikuyomi town Ibadan. The suit at the Grade ?C’ Area Customary Court is alleged to have been heard and determined without notice to the 2nd Respondent who was also not served with a copy of the Judgment of the Court.

The 2nd Respondent felt aggrieved and filed an application ex-parte before the High Court of Justice Oyo State. The application

sought an order for judicial review by way of certiorari against the judgment of the Grade ‘C’ Area Customary Court. The order was made quashing the said Judgment and they now seek relief from this Court upon six grounds of appeal.

Five issues were raised from the six grounds as the vital points for determination before this Court.

The Appellants were the Plaintiffs at the High Court while the Respondents were the Defendants and shall herein be referred to simply as the Appellants and the Respondents. The 1st Respondent is a nominal party therefore only the 2nd Respondent is an active participant in this appeal.

All parties were nonetheless duly served with the hearing notice. The appeal deemed argued, being an old appeal which was abandoned with the briefs all dully filed.

The 2nd Respondent raised three issues for determination:
“1. Whether by virtue of some provisions in the Land Use Act 1978 which vested all land comprising in the territory of a state in the military Governor of the State, it was still possible for any person in Nigeria to lay claim to ownership of land.
2. Whether by the effect of this provision, jurisdiction

of the Court has not been ousted in respect of such claim.
3. Whether certiorari will lie only in respect of issues of jurisdiction error of law on the face of the record, and rules of natural justice.”

Also filed a Respondents notice urging this Court to determine the appeal on grounds other that those relied upon by the High Court. This appeal will be determined on the issues raised by the Appellant. The Appellants in their brief raised five issues for determination as follows:
“1. Whether a Customary Court sitting in one Local Government has jurisdiction over a land cause or matter which arose in another local government.
2. Whether the Applicant/2nd Respondent suit was initiated by due process of law as to confer jurisdiction on the Lower Court.
3. Whether there were sufficient materials before the learned judge of the High Court to sustain an application for extension of time within which to apply for leave to issue an order of certiorari and whether the learned Judge of the High Court exercised his discretion properly in the circumstances of the case.
4. Whether the Lower Court was right to have granted the Applicant/2nd

Respondent’s Application without resolving conflicts in the affidavit and counter affidavit filed by parties.
5. Whether the jurisdiction of a Grade ‘C’ Customary Court in land matter in non-urban area is limited only to Nigeria citizen.”

Issue one (Appellant’s Response) borders on the jurisdiction of customary Court. The Appellants submit that there is no provision of law restricting the jurisdiction conferred on a Grade ‘C’ Customary Court to the local government area in which the Court is sitting and cites the case of Chidozie Okeke v. The President and Members of Grade ?C? Customary Court Mapo (2001) 16 WRN 42 @ 51.

In Chidozie’s case (supra) it was stated per Akintan JCA (as he then was) that:
“Nowhere in the law is it stipulated that the jurisdiction conferred on a Grade ?C? customary Court should be limited or restricted to the Local Government Area in which the Court is sitting.”

The Respondent however is of the view that the Grade ‘C’ Customary Court has no jurisdiction in another local government.

Issue two and three (Respondents? 2a), the Appellants submit that the Respondents application for

extension of time to apply for an order of judicial review was not initiated by due process of law, thereby stripping the High Court of jurisdiction to entertain it. Cited the case Madukolu v. Nkemdilim (1952) ALL NLR 581, 589-590. Learned Counsel also stated that the application for judicial review ought to have been on notice since the time to make the application for leave had expired. Refers Order 43 Rule 4(2) of the High Court (Civil Procedure) Rule of Oyo State 1988. On the contrary, the Respondents submit that the Appellants were served with the relevant processes but failed to take appropriate action. Citing the case of U.D.U. v. Kraus Thompson Organisation Ltd. & 2 Ors (2001) 15 NWLR (Pt.739) 305 @ 312 & 313, the Respondents submit that the Appellant’s having failed to act appropriately, cannot be heard to complain.

Issue three, the main issue here is the basis for the Courts discretion in granting an application for extension of time.

Issue four (Respondents 3). The Appellants submit that the value of the land does not determine jurisdiction under the Land Use Act 1978, rather the location of the land (Whether Rural or Urban) would

determine which Court has jurisdiction. On the other hand, the Respondents submit that since the Appellants did not deny that there are developments on the land even though they denied the value ascribed to it by the Respondents, the Court should discountenance the Appellants’ 3rd ground of appeal.

In the case of NBN Ltd. v. The Are Brothers (Nig.) Ltd (1977) LPELR 1953 SC it was held Per IRIKEFE JSC that:
“…..where as in the case in hand, the Court of first instance is called upon to act upon Affidavit evidence and such evidence is in conflict on a point material for the determination in the case, such conflict can only be resolved by the Court calling for oral testimony on oath from parties.”

Also in Eboh v. Willie Oki & Ors (1974) LPELR 990 (SC) it was held per Fatayi-William JSC that:
“We are in no doubt, while a Court in a given case may act on affidavit evidence, it would be unsafe to do so where the evidence is strongly contested and where issues of credibility can only be resolved upon the Courts view of witnesses.”

On issue five (Respondents 4), the Appellants maintain that the 2nd Respondent is bound by the Customary

Court Law 1980 because she has been resident in Nigeria since her marriage to a Nigerian. While the 2nd Respondent submits that Section 16(3)(a)(iii) of the Customary Courts Law of Oyo State 1981 gives her, being a non-native, the option to refuse to be bound by Section 13 which states that:
“a customary Court shall have jurisdiction over all persons resident in Nigeria.?

The question to answer is did the 2nd Respondent express an objection to being subjected to the jurisdiction of the customary Court?

His Lordship of the trial Court found as follow:
“….Now S. 17(3) Customary Courts Law 1980 Cap 33 Laws of Oyo State reads:
“Land Causes shall be tried and determined by a Customary Court having jurisdiction over the area in which the land which is the subject matter of the dispute is situated.”
That section lends support to the view expressed by Chief Fabiyi that the Olorunda Grade C Customary Court lacks jurisdiction because the land in dispute does not fall within its area of jurisdiction. The provision is imperative. In applying it I find that the Egbeda Grade ‘C’ Customary Court being the area where the land in dispute

is situated has jurisdiction to try the case. The Grade C Customary Court Olorunda on the other hand does not possess jurisdiction to try the case for the land in dispute is not within its area of jurisdiction. On the ground alone I find that the application succeeds. The Olorunda Court lacks jurisdiction to try the suit.
As to the value of the land in dispute, both sides have differed on this point. While the applicant estimates the value of the land together with the developments on it to be over N100,000 the respondents say the value is N10,000.
Establishing the value is of importance because of the limit in the jurisdiction of the Grade ‘C’ Customary Court in land matter to N10,000. Since there are developments on the land in dispute by the presence of flowers which were planted thereon. I am inclined to accept the applicant’s estimated value of over N100,000. It appears that the respondents did not take into consideration the value of the developments on the land. I therefore find that the application on this ground succeeds as well.
As to the issue of the applicant’s American citizenship, it is true that S. 13 of the Customary Courts Law

1980 provides that Customary Courts shall have jurisdiction over all persons, resident in Nigeria. However by S.16(3)(a)(iii) of that law where one of the parties is not a native of the area of jurisdiction of the Court and the parties agree or may be presumed to agree that their obligations may be regulated wholly or partly by the customary law applying to that party, the appropriate customary law shall be the customary law binding between the parties.
In this case, the applicant has indicated by her various applications to Court that she is not to be presumed to have agree to be bound to submit to the jurisdiction of the Grade ‘C’ Customary Court, Olorunda.
With regard to ground 4, the Limitation Law does not deprive a Court of the jurisdictional matter that would ground an application for an order of certiorari. Grounds 5 and 6 are not grounds for judicial review as they do not go to the issue of want or excess of jurisdiction, failure to comply with the rules of natural justice, error of law on the face of the record or where the decision is such that no Court properly directing itself in the relevant law and acting reasonably would have reached

the decision complained about: Associated Provincial Picture Limited House Vs. Wednesbury Corporation (1948) 1 Kg 223: (1947) 2 ALL F.R. 680.”

I find the summation of issues made by the Appellant as apt and I shall adapt same in resolving the issues raised in this appeal. (See page 8 on Amended Appellant Brief)
(1). Failure of the 2nd Respondent to put the Appellants on notice of her application for extension of time within which to apply for Judicial review, Suit M/386/2000 has not been initiated by due process of law.
Such failure renders the application filed by the 2nd Respondent incompetent and robs the High Court of the jurisdiction to hear the suit.
(2). There is nothing in the Customary Court Laws of Oyo State, which was the applicable law to the suit, limiting territorial jurisdiction of Grade ‘C’ Customary Court in land matters a particular Local Government.
(3). The exercise of discretion by the High Court to grant an order of extension of time has not been made Judicially and judiciously in that the interest of the Appellants were not taken into account in exercising the discretion.
(4). The Lower Court did not

reconcile the material conflicts in the affidavits filed by the parties before making an order of certiorari.
(5). Grade ‘C’ customary Court has jurisdiction over all persons resident in Nigeria and there was nothing on record to the effect that the 2nd Respondent objected to the jurisdiction of the customary Court to hear her case.
(6). The High Court ought to have dismissed the 2nd Respondent’s application for judicial review instead of granting same for being time barred and sufficient reasons have not been shown for enlarging time.

ISSUE 2 and 5
An application made to a Court for an order extending the time within which an act should be done is one which invokes the discretionary power of the Court. Such an application is therefore not given for the asking. It is given on good and substantial reasons explaining the failure to do the thing at the time it was supposed to be done. Only upon such compelling reasons may a Court extend the olive branch of discretion to grant the application.
However, in so doing, the Court must be circumspect to ensure that the application does not suffer from any fundamental defect as he who

comes to equity must come with clean hands. It is the contention of the Appellants that the exercise of discretion in the instant appeal was not judicious nor judicial for the failure of the 2nd Respondent as Applicant at the High Court to put the Appellant on notice. It is the counter submission of the 2nd Respondent that the Appellants were aware of the application but failed to take advantage by refraining from participating in the procedure. The learned trial Judge was persuaded by this argument and therefore held that no wrong had been done to the Appellant.

His Lordship held as follows: – @ pg.69 of the records,
“…Generally, a Judge has no power to set aside its own judgment or order. But there are exceptions to this rule where the judgment or order is entered against a person who was dead or a non-existent company, the Court of its own motion will treat the order as a nullity and set it aside: Lazard Brother Vs. Banque Industrielle de Moscou (1932) 1 KB 617. C.A.
Similarly where there has been some procedural irregularity which is so serious that the judgment or order ought to be treated as a nullity, the Court will set aside its own

judgment or order. The test to be applied is whether the irregularity caused a failure of natural justice: Marsh Vs. Marsh (1945) AC 271 at 284 PC.
By Order 2 Rule 1(i) a failure to comply with any requirement of the Rules may be treated as an irregularity which will not nullify the proceedings. Order 8 Rule 11 of the Rules provides that where an order is made on a motion exparte, any party affected may, within seven days after service of it, or within further time as the Court shall allow, apply to the Court by motion to vary of discharge it, and the Court, on notice to the party obtaining the order, either may refuse to vary or discharge it, or may vary or discharge it with or without imposing terms as to costs or security, or otherwise, as it seems just.
In this case the 1st and 5th Respondents were served with the motion on notice on the 4th December, 2000. To these motion papers was attached the order nisi. They ought to have filed a motion under Order 8 Rule 11 on or about the 11th December, 2000. This they did not do. On 5th December, 2000, the 2nd – 5th Respondents and their counsel were present in Court when the motion on notice was

adjourned for hearing to 24th January, 2001. It was at the tail end of his address that their counsel Mr. Oladejo raised the issue of not being put on notice of the ex parte motion. The Respondents did not act timeously nor bring any motion in accordance with the rules.”

It is thus correct to hold that the Appellants were not put on notice of the Application for certiorari. The learned trial Judge has placed the consequence of failure of non-notice on the Appellants as reproduced above. This is not the position of the law.

The law is as stated by the Appellant?s learned counsel in the Appellant’s brief of argument at paragraphs P4 ? where a party is entitled to notice of a proceeding and there is failure to serve such a party, the failure is a fundamental defect which goes to the root of the competence (jurisdiction of the Court to deal with the matter. See (LEEDO?S case at 4725 paragraph C-D:SKENCONSULT (NIG) LTD AND ANOR VS. UKEY (1981) 1 S.C. 6 AT 27.
In the case of GEOSITE SURVEYS (NIG) LIMITED VS. CHIEF FRIDAY E. NWAGBARA 2007 PART 386 ALL FWLR PAGE 742 AT 765 ? 766 this Court held that:-
“Once the issue of

proper service is raised in adjudication, it becomes a question of right which is not subject to the exercise of discretion by the trial judge. No discretion is reposed in a Judge to deny a litigant a right to be put on notice and to be present in Court to answer to claims levied against him/her. Notice is a fundamental right reposed in the litigant, and he who claims/seeks against the other, has the duty to ensure that the other party against whom he claims/applies is put on good notice of current dates.?
?Failure to put the party on notice is not a mere irregularity but a fundamental defect which goes to the root of the proceedings. A denial of a principle of fair hearing which requires that the other party which may be adversely affected must be put on notice of the proceedings is a constitutional breach. It cannot be wished away by reference to the provisions of a rule of procedure. For this reason alone, the entire proceedings, of the High Court is vitiated. To proceed further with the other issues would be a venturing into an academic exercise.
It follows naturally that the decision of the learned trial Court was made without jurisdiction and is hereby set aside. The order of certiorari

made quashing the decision of the Grade ‘C’ Area Customary Court is hereby set aside. The decision of the Grade “C” area Customary Court is restored and remains valid.
This appeal was deemed argued as both parties had since abandoned same. No order is made as to cost.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I agree.

NONYEREM OKORONKWO, J.C.A.: In so far as a fundamental step in commencing the suit at the Lower Court was not taken, in that notice of the application for extension of time to apply for judicial review was not served on appellants by 2nd respondent, a fundamental breach has occurred in the proceedings rendering the entire process before the Lower Court a nullity.

?It is in the above respect that I agree with the judgment of my lord Monica Bolna’an Dongban Mensem JCA in this appeal.

Appearances

Appellants’ Counsel not in CourtFor Appellant

AND

Respondents’ Counsel not in CourtFor Respondent