AKINWADE v. FGN & ORS
(2022)LCN/16157(CA)
In the Court of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, July 07, 2022
CA/B/533B/2019
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
MOSHOOD ONIFADE AKINWADE APPELANT(S)
And
1. FEDERAL GOVERNMENT OF NIGERIA 2. ATTORNEY GENERAL & MINISTER OF JUSTICE 3. FEDERAL MINISTRY OF HOUSING & URBAN DEVELOPMENT 4. GOVERNOR OF EDO STATE OF NIGERIA 5. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, EDO STATE RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURTS HAS JURISDICTION TO RAISE AN ISSUE SUO MOTU
Clearly, there are plethora of decision to the effect that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it in its Judgment or ruling without hearing the parties particularly the parties that will be affected by the issue raised. See Oshodi V. Eyifunmi (2000) 13 NWLR (Pt. 684)289 at 332.
In A.A. Atta Nigeria Ltd V. Conoil Plc (2018) LPELR – 44705, it was held that no Court has the authority to raise an issue suo motu and relying thereon to determine matter on one way or the other. In other words, a Court or Tribunal has the power or authority where deems expedient to raise an issue suo motu, however it behoves on the Court to accord the parties on both sides the opportunity to address it thereupon before deciding on the issue so raised suo motu. A decision reached suo motu by a trial Court can be set aside by an Appellate Court only where it is evident that the decision has caused a miscarriage of justice to both or any of the parties. See FRN V. Daniel (2012) 4 NWLR (Pt. 1289) 40. Regarding the instances when the allegation of raising issue suo motu can be levelled against a Court, the Supreme Court in Ikenta Best (Nig.) Ltd V. AG Rivers State (2008) 6 NWLR (Pt. 1084) 612 or 642 Tobi JSC held that a Court can only be accused of raising an issue or fact suo motu, if the issue or matter is not in the litigation.
There can be no doubt that Courts have the power to raise suo motu relevant issue or issues which are not before the Court. However, in exercising this power, the Court must strictly adhere to the principles of natural justice and in particular to the audi alterem rule as emphasized in the case of Kraus Thompson Organisation Ltd. V. University of Calabar (2004)4 SCM 83 where the Supreme Court held that “on no account should a Court raise a point suo muto no matter how clear it may be, and then proceed to resolve it in one way or the other without inviting parties to address on it on the point. If it does so will be a flagrant abuse and breach of the aggrieved party’s right to fair hearing as enshrined in the constitution”.
In the case Omokuwajo V. Federal Republic of Nigeria (2013) LPELR-20184 (SC) Olabode Rhodes-Vivor. JSC held as follows:
“It is long settled that a Judge would be wrong to decide an issue not raised by the parties, without giving the parties a hearing……the need to give the parties a hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if: (a) the issue relates to the Court’s own jurisdiction. (b) both parties are/were aware or not aware or ignored a statute which may have being on the case. That is to say where by virtue of a statutory provision the Judge is expected to take judicial notice. See Section 73 of the Evidence Act. (c) when on the face of the Record serious question of the fairness of the proceeding is evident. It is not open to the Court of Appeal to raise issues which the parties did not raise themselves either at the trial Court or during of the appeal.” PER BOLA, J.C.A.
WHETHER OR NOT A PLAINTIFFS CLAIM DETERMINES THE JURISDICTION OF A COURT
It is not in doubt, and it is settled that it is the Plaintiff’s claim that determine the jurisdiction of the Court. See Yar’ Adua V. Yandoma (2015) 4 NWLR (Pt.1448) 123 at 161, Jev V. Iyortyom (2014) 14 NWLR (Pt.1428) 575 at 626, A.G. Kwara V. Adeyemo (2017) 1 NWLR (Pt.1546) 210 at 239. PER BOLA, J.C.A.
ADEMOLA SAMUEL BOLA, J.C.A.(Delivering the Leading Judgment): This appeal challenges the decision of the High Court of Justice, Edo State holding at Benin City in the ruling delivered by Hon. Justice Ikponmwen – Chief Judge Edo State in Suit No. B/361/2011 which ruling was delivered on 19th of March, 2019. The action of the Appellant was struck out by the lower Court on the ground of jurisdiction raised by the Court suo motu.
Not satisfied with the decision of the lower Court, the Appellant filed a Notice of Appeal at the registry of the lower Court on the 3rd of April, 2019. The Record of Appeal was deemed compiled and transmitted to this Court on the 9th February 2022.
The Appellant’s Brief of Argument settled by Dr. V.E. Mammud was filed on 23/2/2022. The 1st, 2nd and 3rd Respondents failed to file any brief of argument. The 4th and 5th Respondents Brief of Argument filed on 22/4/22 was deemed filed and served on the 25th of April, 2022. The Brief of Appeal was settled by Fifi Omage Dimowo, Chief State Counsel of the Edo State Ministry of Justice Benin City.
BACKGROUND FACTS
This appeal stems from the ruling of the Chief Judge of Edo State Hon. Justice E.F. Ikponmwen sitting at the High Court of Justice, Benin Judicial Division delivered on 19th day of March, v2019 in Suit No. B/561/2011 between Moshood Onifade Akinwade and the Federal Government of Nigeria and four others as Defendants. It was an action in which the Claimant (Moshood Onifade Akinwade) sued the Federal Government of Nigeria and others claiming the Sum of Thirty-Five Million, Seven Hundred and Ten Thousand Naira only (N35,710,000:00) as special damages being the cost value of and worth of the Plaintiff’s sand crate perimeter, fence, three bedroom bungalow building plus two rooms boys quarters alleged to have been destroyed by the 4th – 6th Defendants (Respondents) along with the economic trees and plants on the Plaintiff’s land. The Plaintiff (Appellant) also claimed the sum of N7,995,500:00 as special and aggravated damages. The Plaintiff also claimed for general damages, mandatory and perpetual injunction against the Defendants. This action is in respect of the property situated at plot 7D Okoro-Otun Avenue, GRA, Benin City.
While hearing was proceeding at the lower Court, the trial Judge raised the issue of jurisdiction and proceeded to resolve the issue and struck out the substantive action for want of jurisdiction. Consequently, the Appellant, not satisfied with the trial Court’s ruling filed this appeal.
ISSUES FOR DETERMINATION: APPELLANT’S BRIEF
The Appellant formulated three issues in his Brief of Argument. They are:
1. Whether the learned trial Judge was right when he suo motu raised the issue of jurisdiction, and struck out the case of the Appellant for want of jurisdiction without inviting or allowing parties to address the Court on the issue suo motu raised.
2. Whether the learned trial Judge was right when he held that “this is a case between the Edo State Government and the Federal Government over the title to the land…” without putting into consideration the status of the Appellant being an individual who is not agent or agency of the State or Federal Government.
3. Whether the learned trial Judge was right in law when he held thus: “Now this provisions of Section 232 of the 1999 Constitution makes it clear that it is the Supreme Court that has original jurisdiction over such disputes.”
The above issues were distilled from Grounds 1, 2 and 3 of the Appellant’s Grounds of Appeal.
SUBMISSIONS OF COUNSEL
ISSUE NO. 1
The Appellant’s Counsel submitted that the learned trial Judge erred in law for striking out the Appellant’s case for want of jurisdiction, an issue which the Court suo motu raised without availing the parties the opportunities to address the Court. According to the trial Judge, the matter before him was a matter between the Federal Government of Nigeria (1st Respondent) and the State Government which was not a party to the suit, and who never applied to Court to be join as a party. It was argued that the Court could suo motu raise the issue of jurisdiction at any stage of a matter before it, the Court cannot rule on same without calling on parties to address. Failure to do this negates the principle of fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
It was submitted that the effect of raising an issue suo motu and relying thereon to determine a matter by the Court without calling on the parties to address the Court renders the entire proceeding a nullity. He referred to the cases MFA & Anor V. Inongha (2014) 1-2 SC (Pt. 1) 43, Tsowka Motors (Nig) Ltd V. UBA Plc (2008) ALL NWLR (Pt. 403) 1240 at 1255, AB Leader & Co. Ltd V. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329, Okafor V. AG Anambra State (1991) 3 NWLR (Pt. 200).
Counsel referred to the lower Court’s decision on page 71 of the Record of Appeal. Reference was made to the case Nwoko V. Azekwo (2012) 12 NWLR (Pt. 1313) 151. That the trial Judge in this case did not accord the parties the opportunity to address it on the issues before striking out the case of the Appellant. It was submitted that the Appellant had suffered a miscarriage of justice having been shut out of ventilating his grievances and seeking redress before a Court of competent jurisdiction. In this case, the Edo State High Court which is a Court of original jurisdiction in Civil matters that border on land between private individuals such as the Appellant and other parties whether State or Federal Government and their agencies. Counsel referred to the case of Federal Republic of Nigeria V. Daniel (2012) 4 NWLR (Pt. 1289) 40 where it was held that a decision reached suo motu by a trial Court can be set aside by an Appellate Court only when it is evident that the decision had caused a miscarriage of justice to both or any of the parties.
It was equally contented that the Appellant being a private Citizen does not have the locus standi to approach the Supreme Court as stated in the ruling to seek redress in a matter that borders on ownership of landed property. By reason of which he suffered miscarriage of justice by the ruling of the trial Court, as he had been shut out from being heard. Counsel referred to cases such as Amale V. Sokoto Local Government and 2 Ors (2012) JLP 34814 (SC), (2012) LPELR SC 290/2003, Hambe V. Hueze(2007) 3 Scm 49 and Ibrahim V. Judicial Service Commission (1998) 12 SCNJ 272, Okafor V. Nnaife (1973) 3 ECSLR (Pt. 99) 566.
Arising from the foregoing, Appellants Counsel urged the Court to hold and allow this appeal in its entirety by setting aside the ruling of the lower Court and refer the case of the Appellant back to the trial Court for hearing and determination on its merit.
SECOND ISSUE
It is whether the learned trial Judge was right when he held that the case was between the Edo State Government and Federal Government over title to the land without considering the Status of the Appellant being an individual who is not an agent or agency of the State or Federal Government.
It was submitted that the Appellant is a private individual and the subject matter a property he had lawfully acquired from an Agency of the Federal Government of Nigeria and had taken possession. That there was nothing constitutional about the dispute between the Appellant and the Defendants that confers original jurisdiction on the Supreme Court as envisaged by the lower Court. That the action involved the Claimant and the Federal Claimant, its agencies, the Governor of Edo State and his Attorney General in view of their roles in the issue that led to the dispute between the Appellant and Respondents.
It was submitted that the action of the 4th and 5th Respondents (demolishing the property of the Appellant) directly affected the existence of his legal right, liability, privilege, interest, obligation and claim hence he approached the Edo State High Court to seek redress pursuant to Sections 6 (2) and 272 (1) of the Constitution. That it is trite that a private individual cannot approach the Supreme Court or the Court of Appeal as a Court of first instance or of original jurisdictions to seek redress but the Edo State High Court to determine the case of the Appellant. The Appellant approached the trial Court to seek redress on issues bordering on title and ownership of land against the Edo State Government which is within the provision of Section 272 of the Constitution.
Counsel referred to the case of Adeyemi V. Opeyori (1976) 9 – 10 SC 3 and Okulate V. Awosanya (2000) 2 NWLR (Pt. 646) 530 to the effect that it is the claim of the Plaintiff (Claimant) and not the defence that is to be considered in determining whether the Court has jurisdiction or not. That the pleadings of the Claimant never stated that there was a dispute between Edo State Government and the Federal Government of Nigeria. That the Claimant (Appellant) is not an agent of any of the Defendants (Respondents). That the Edo State Government is not even a party to this matter neither did it apply to be joined as an interested party.
ISSUE 3
The third issue queries the decision of the trial Court when it held that “Now the provision of Section 232 of the 1999 Constitution makes it clear that it is the Supreme Court that has original jurisdiction over such disputes”.
It was submitted that the State High Court is created under Section 270 of the Constitution and under Section 272 (1) of the Constitution confers original jurisdiction on it. Section 232 provide for the jurisdiction of the Supreme Court. Nothing in Section 232 of the Constitution gives locus standi to a private individual as the Appellant to approach the Supreme Court as a Court of first instant. He referred to Black’s Law Dictionary (9th Edition) at 927, Attorney General of Oyo State V. NLC (2003) 8 NWLR (Pt. 821) 1, AG Federation V. Guardian Newspapers Ltd (1999) 9 NWLR (Pt. 618) 187, Yusuf V. Obasanjo (2005) 18 NWLR (Pt. 956), Gafar V. Government of Kwara State (2007) 4 NWLR (Pt. 1024) 375. He referred to Section 232 and 233 as to the jurisdiction of the Supreme Court.
It was submitted that the Supreme Court has no jurisdiction over such disputes arising from the breach of the Appellant’s legal right, power duty, liability, privilege, interest obligation and claim.
Counsel urges the Court to resolve the three issues in favour of the Appellant.
RESPONDENTS BRIEF OF ARGUMENT
The 4th and 5th Respondents formulated a lone issue for determination in their Brief of Argument as follows:
Whether the dispute in this case is really between the Federal Government of Nigeria and the Edo State Government which dispute falls within the Exclusive jurisdiction of the Supreme Court of Nigeria under Section 232 (1) of the 1999 Constitution as amended.
It was submitted by Counsel that the issue of ownership of No 7D, Okoro-Otun Avenue, GRA, Benin City, Edo State which is the subject matter of this suit must first be resolved between the 1st Respondent and the 4th – 5th Respondents by the Supreme Court before the trial Court could assume jurisdiction to wade into resolving or determining the issue of title of the Appellant.
Counsel submitted that since the title of the Appellant enure from the 1st Respondent, it was impossible for the lower Court to attempt to resolve the issue of title and liabilities without delving into determining the property belongs to the Federal or the State Government that is the 1st and 5th Defendants.
Counsel posited that the issue of jurisdiction is fundamental and elementary to adjudication. It follows therefore that any adjudication without jurisdiction is a nullity no matter how well conducted. That jurisdiction has been variously described in a plethora of authorities as the lifeblood of any adjudication, the fiat and stamp of authority to adjudicate. The following cases were cited Mbah V. State (2014) LPELR 22729 (SC); Ononye & Ors V. Chukwuma (2005)17 NWLR (Pt. 935); Oloba V. Akereja (1988) 3 NWLR (Pt. 84); Nwankwo & Ors V. Yar’Adua & Ors (2010) LPELR 2109 (SC).
It was submitted that the trial Court determined it lacked jurisdiction timeously as the subject matter of this suit was not within the competence of the trial Court and rightly held that it lacked jurisdiction instead of wasting the time of the Court. He referred to Section 232 (1) of the 1999 Constitution and also the case Plateau State V. AG Federation (2006) 3 NWLR (Pt. 967) 346 at 429-430 on the import of the word “dispute”, and also cited the case AG Anambra State V. AG Federation (2007) 12 NWLR (Pt. 1047) 4 at 43. It was submitted that the real dispute in this suit was for the ownership of No. 7D, Okoro-Otun Avenue GRA, Benin City, Edo State; the subject matter of the dispute.
Counsel for the 4th and 5th Respondents contended that it was only the Supreme Court that could determine the true owner of the property the subject matter of this appeal as the trial Court was not properly constituted nor does it have power to grant the Appellant’s (Claimant) relief as prayed.
Counsel further referred to the case AG Abia State V. AG Federation & 35 Ors SC73/2006 as to the prerequisite condition which must be satisfied before the Supreme Court could exercise its original jurisdiction in civil matters under Section 232 (1) of the Constitution. Reliance was also placed on the case AG Kano State V. AG Federation (2007) 6 NWLR (Pt. 1027) 169.
It was submitted that this condition had been satisfied in the case before the lower Court.
It was submitted that until the Supreme Court determines the issue of title between the Federal Government and the State Government, the trial Court could not go into the merit of the case to determine the title of the Appellant.
It was submitted further that it was in the interest of justice to raise the issue of jurisdiction suo motu so as to safe time, cost and to avoid a trial in nullity. Referred to Petro Jessic A. Enterprises Ltd V. Leventis Technical Coy. Ltd (1992) 5 NWLR (Pt. 244) 675 at 696, Osadebay V. AG Bendel State (1991) 1 NWLR (Pt. 169) 525.
Concluding, the 4th – 5th Respondents’ Counsel urged this Court to dismiss the appeal and uphold the ruling of the lower Court delivered by the Hon. Justice E.F. Ikponmwen the Chief Judge of Edo State on the 19th day of March, 2019.
Upon a meticulous consideration of the issues distilled for resolution by the appellant and the 4th and 5th Respondents’ Counsel and appraisal of the submissions in respect of the issues, this Court is of the mindset that two issues are pertinent for formulation and resolution in this appeal. The issues are:
1. Whether the learned trial Judge was right when he suo motu raised the issue of jurisdiction and struck out the case of the Appellant for want of jurisdiction without inviting or allowing parties to address the Court on the issue raised suo motu.
2. Whether the case at the trial Court was between the Federal Government of Nigeria and the Edo State Government and whether the dispute arising in the case falls within the exclusive jurisdiction of the Supreme Court of Nigeria under Section 232 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
RESOLUTION OF ISSUES
ISSUE ONE
In respect of this issue bordering on raising issue suo motu without calling parties to address the Court on it, the starting point is to consider the ruling of the trial Court which provoked this contention. The pertinent part of the ruling is reproduced hereunder:
“At this point, I must state that in looking at the pleadings of the parties, it is obvious that the root of title by the Claimants i.e Certificate of Occupancy enures from the 1st – 3rd Defendants which is the Federal Government whereas the 4th to 5th Defendants Edo State Government disputes this claim. I find therefore that there arises in this case a dispute between the Edo State Government and the Federal Government over the title to the land which will affect the right of the Claimant to title which he claims by virtue of the Certificate of Occupancy. Now, the provisions of Section 232 of the 1999 Constitution makes it clear that it is the Supreme Court that has original jurisdiction over such dispute. See Section 232 which provides thus: I am not unmindful that it is the claim that the Court should use in determining its jurisdiction but hearing has begun and in determining admissibility of the Certificate of Occupancy. I have cause to look at the pleadings of the parties and the question of this Court’s lack of jurisdiction stares one in the face. It will be a time wasting exercise for me to embark on full trial where it is glaring that I do not have the requisite jurisdiction. This Court can suo moto decline jurisdiction and I so do and order this case struck out for want of jurisdiction.”
There is no doubt flowing from the above excerpt of the ruling, the lower Court did raise the issue of jurisdiction suo motu without inviting the parties to address it on the issue raised.
Clearly, there are plethora of decision to the effect that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it in its Judgment or ruling without hearing the parties particularly the parties that will be affected by the issue raised. See Oshodi V. Eyifunmi (2000) 13 NWLR (Pt. 684)289 at 332.
In A.A. Atta Nigeria Ltd V. Conoil Plc (2018) LPELR – 44705, it was held that no Court has the authority to raise an issue suo motu and relying thereon to determine matter on one way or the other. In other words, a Court or Tribunal has the power or authority where deems expedient to raise an issue suo motu, however it behoves on the Court to accord the parties on both sides the opportunity to address it thereupon before deciding on the issue so raised suo motu. A decision reached suo motu by a trial Court can be set aside by an Appellate Court only where it is evident that the decision has caused a miscarriage of justice to both or any of the parties. See FRN V. Daniel (2012) 4 NWLR (Pt. 1289) 40. Regarding the instances when the allegation of raising issue suo motu can be levelled against a Court, the Supreme Court in Ikenta Best (Nig.) Ltd V. AG Rivers State (2008) 6 NWLR (Pt. 1084) 612 or 642 Tobi JSC held that a Court can only be accused of raising an issue or fact suo motu, if the issue or matter is not in the litigation.
There can be no doubt that Courts have the power to raise suo motu relevant issue or issues which are not before the Court. However, in exercising this power, the Court must strictly adhere to the principles of natural justice and in particular to the audi alterem rule as emphasized in the case of Kraus Thompson Organisation Ltd. V. University of Calabar (2004)4 SCM 83 where the Supreme Court held that “on no account should a Court raise a point suo muto no matter how clear it may be, and then proceed to resolve it in one way or the other without inviting parties to address on it on the point. If it does so will be a flagrant abuse and breach of the aggrieved party’s right to fair hearing as enshrined in the constitution”.
In the case Omokuwajo V. Federal Republic of Nigeria (2013) LPELR-20184 (SC) Olabode Rhodes-Vivor. JSC held as follows:
“It is long settled that a Judge would be wrong to decide an issue not raised by the parties, without giving the parties a hearing……the need to give the parties a hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if: (a) the issue relates to the Court’s own jurisdiction. (b) both parties are/were aware or not aware or ignored a statute which may have being on the case. That is to say where by virtue of a statutory provision the Judge is expected to take judicial notice. See Section 73 of the Evidence Act. (c) when on the face of the Record serious question of the fairness of the proceeding is evident. It is not open to the Court of Appeal to raise issues which the parties did not raise themselves either at the trial Court or during of the appeal.”
Likewise, in the case above of Fabiyi JSC held:
“It is basic that when the Court of Appeal decides to raise a vital issue touching on the citizen’s liberty as hearing suo motu, an opportunity should be given to the parties to address the Court on same. This is because it relates to the realm of hearing as encapsulated in Section 36(6) of the 1999 Constitution of the Federal Republic of Nigeria.”
Applying the above principles to the case in our hand, it is crystal clear that the ruling of the trial Court ran violent against the decision of the Appellate Courts to the effect where parties raised an issue suo motu, parties must be invited to address the Court on such issue before the Court proceeds to take decision in respect of same. The ruling of the trial Court recapitulated and quoted earlier reveals clearly that the trial Judge raised the issue of jurisdiction suo motu. There is no doubt he is endowed with the judicial power and discretion to so do. However, he failed to call or invite the parties particularly the claimant (the Appellant) to address the Court before striking out his matter which was part-heard. Without any iota of doubt, this constitute an infringement of the Appellant’s right to fair hearing as entrenched in Section 36(1) of the Constitution. More particularly that the learned trial Judge’s failure to invite the parties did not fall within the exception stated by Rhode-Vivours JSC inOmokuwajo V. FRN (Supra).
Without mincing words, the learned trial Judge’s action raising another issue suo motu without calling parties to address the Court, striking out the Appellant’s action while the matter was part heard occasion an injustice, an infraction of the right of the Appellant to fair hearing as constitutionally provided. A violent violation of fair hearing. A wrongful act on the part of the trial Judge. It renders the proceeding at the lower Court a nullity and the ruling subject to being set aside on ground of miscarriage of justice and unconstitutionality.
ISSUE 2.
The second issue raises the questions.
(1) Was the case at the lower Court between the Edo State Government and the Federal Government of Nigeria?
(2) Was the dispute or cause of action arising in the case a matter that falls within the exclusive jurisdiction of the Supreme Court of Nigeria under Section 232(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
The lower Court in its ruling stated inter alia:
“I find therefore that there arises in this case a dispute between the Edo State Government and the Federal Government over the title to the land which will affect the right of the claimant to title which he claims by virtue of the Certificate of Occupancy. Now, the provisions of Section 232 of the 1999 Constitution makes it clear that it is the Supreme Court that has original jurisdiction over such dispute.”
It is not in doubt, and it is settled that it is the Plaintiff’s claim that determine the jurisdiction of the Court. See Yar’ Adua V. Yandoma (2015) 4 NWLR (Pt.1448) 123 at 161, Jev V. Iyortyom (2014) 14 NWLR (Pt.1428) 575 at 626, A.G. Kwara V. Adeyemo (2017) 1 NWLR (Pt.1546) 210 at 239.
Is the claimant’s (Appellant) claim within the ambit of the lower Court’s jurisdiction or within the four walls of the jurisdiction of the Supreme Court as ruled by the trial Judge? The Writ of Summons and Amended Statement of Claim, of the Appellant (claimant) on pages 1-6 and 34-50 of the Record encapsulate the claim of the Appellant. Therein the Appellant Moshood Onifade Akinwade expressed his dissatisfaction in the main with the 4th Respondent who ordered the demolition of his landed property at No. 7D, Okoro-Otun Avenue, G.R.A, Benin City. This is well captured in paragraphs 41 (1) (2)(3) (4) (5) and (6) of the Amended Statement of Claimant on pages 42-43 of the Record as follows:
“1. A DECLARATION AND AN ORDER OF THIS HONOURABLE COURT that the Plaintiff is the owner and holder of a Statutory Right of Occupancy with all the concomitant proprietary, legal right and interest over all that pieces or parcel of land situate and known as No. 7D, Okor-Otun Avenue (which was described as Quarter 122), Government Reservation Area, Benin City, Edo State measuring an area of approximately 1071.697 Sqm and which exact abuttals and boundaries are bounded by beacons marked FGPED 127, FGPED 130, FGPED 129 and FGPED 128 respectively in a Survey Plan dated the 18th day of January, 2007 with Plan Number: L5721J-R prepared and drawn by surveyor Ola-Olu O. Aina and covered By Certificate of Occupancy No: 009747, Registered As No. 38 at page 38 in Volume 150 at the Federal Land Registry Ikoyi Lagos together with all the appurtenances and the development thereon.
2. A DECLARATION AND AN ORDER OF THIS HONOURABLE COURT that the plaintiff has been/and is in actual and effective possession and/or occupation of the aforesaid described piece or parcel of land since the 27th day of September, 2000 and had ever since then remained in undisturbed, quiet and peaceable occupation and possession of the aforesaid piece or parcel of land until the events leading to this suit.
3. A DECLARATION OF THIS HONOURABLE COURT setting aside any purported acquisition, take over, alienation or grant of the Plaintiff’s aforesaid land/demised premises arid all its appurtenances by the 4th – 6th Defendants either to itself. Agent, Privies, Servants or anybody of whatsoever without the valid revocation of the Plaintiffs title or the Plaintiff’s consent and authorization as the 4th -6th Defendants action is wrongful, illegal and unlawful and so null and void and of no effect.
4. A DECLARATION AND AN ORDER OF THIS HONOURABLE COURT that it is wrongful, illegal and unlawful for the 4th – 6th Defendants to have between the 29th June, – 2nd July, 2011 forcefully invade the Plaintiff’s aforesaid property and which invasion was personally led, coordinated and supervised by the 4th Defendant and same amounts to executive lawlessness, recklessness, rascality, gangsterism and naked display of brute force.
5. A DECLARATION AND AN ORDER OF THIS HONOURABLE COURT that it is wrongful, illegal and unlawful for the 4th – 6th Defendants to have between 29th June, 2011 – 2nd July, 2011 led bulldozers to forcefully demolish, destroyed, smashed and/or buried the Plaintiff’s sand Crate Perimeter Fence, three (3) bedroom bungalow plus two (2) bedroom boys quarters along with all the Plaintiff’s properties, fixtures and fittings contained therein in the aforesaid piece or parcel of land, the subject matter of this suit and which exercise was personally led, supervised and co-ordinated by the 4th Defendant and same amounts to executive lawlessness, recklessness, rascality, gangsterism and naked display of brute force.
6. A DECLARATION AND AN ORDER OF THIS HONOURABLE COURT that it is wrongful, illegal and unlawful for the 4th – 6th Defendants to have between the 2nd July, 2011- 4th July, 2011 led bulldozers to forcefully grade and completely uprooted all the economic trees and plants in the Plaintiff’s aforesaid piece or parcel of land subject matter of this suit and which exercise was personally led, supervised and co-ordinated by the 4th Defendant and same amounts to, executive lawlessness, recklessness, rascality, gangsterism and naked display of brute force.”
The averments in the Amended Statement of Claim and the reliefs claimed reveal a contention between the Appellant (Claimant) and the 4th and 5th Defendants, the Governor of Edo State and the Attorney General of the State, in respect of land ownership of land and demolition of property on the land which the Appellant claimed to be his having been allocated the land and the building as official quarters and same sold to him thereafter. The facts of the case as contained in the Appellant pleading do not reveal any dispute between the Edo State Government and the Federal Government of Nigeria. Needless to say that the 4th and 5th Respondents never counter-claimed against the Federal Government nor any relief claimed from it. Not even the claim of the reversionary rights and interests by the 4th and 5th Respondents in their Joint Statement of Defence could be said to have created a dispute between the Edo Statement Government and the Federal Government to justify the decline of jurisdiction. It is factually clear that the Appellant claim does not disclose any dispute between the Edo State and the Federal Government to warrant a decline of jurisdiction by the lower Court. It is patently clear that it was a dispute between a private person, an individual against the Respondent particular the 4th and 5th Respondents in respect of landed property. A matter which the Appellant could seek redress against the 4th and 5th Respondents by virtue of Section 272(1) of the Constitution which confers jurisdiction on the State High Court “to hear and determine any civil proceedings in which the existence or extend of a legal right, power, duty, liability, privilege, interest, obligation or claim as in issue…..”.
It is in respect of the foregoing that this Court further considers the ruling of the lower Court to the effect that:
“At this point, I must state that in looking at the pleadings of the parties, it is obvious that the root of title by the claimants the Certificate of Occupancy enures from the 1st – 3rd Defendants which by the Federal Government whereas the 4th-5th Defendants Edo State Government disputes this claim. I find therefore that there arises in this case a dispute between the Edo State Government and the Federal Government over title to land which affects the right of the claimant to title which he claims by virtue of the Certificate of Occupancy. Now the provisions of Section 232 of the 1999 Constitution makes it clear that it is the Supreme Court that has original jurisdiction over such dispute.”
This Court had earlier held that the subject matter of the action at the lower Court is a land tussle or dispute between an individual, a private person Moshood Onifade Akniwade and the 4th and 5th Defendants, Governor of Edo State and the Attorney General of the State over ownership to the land at No. 7D, Okoro-Otun Avenue, G.R.A, Benin city, and the demolition of the building thereon by the aforesaid defendants. That is it is not a dispute between State Government and Federal Government interse. Is the Supreme Court endowed with the jurisdiction to entertain land dispute between an individual, a private person and a State Government as a Court of original jurisdiction or Court of first instance? This question drives this Court to consider the provision of Section 232(1) of the 1999 Constitution which is as follows:
“232” (1) the Supreme Court shall to the extension of inclusion of any other Court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.”
It is indisputably clear that the above provision does not give any right to an individual to approach the Court in its original jurisdiction to institute an action. It is therefore apparent that the Supreme Court has no jurisdiction to entertain actions brought by an individual in its original jurisdiction or as a Court of first instance. It has no original jurisdiction in matters affecting the Appellant legal rights.
I have considered the argument of the 4th and 5th Respondents Counsel. In my view, the argument is not in tandem with the provision of Section 232(1) as ably demonstrated in the decision of the apex Court in the A.G. Abia State V. A.G. Federation & 35 Others (2001) LPELR-24862 (SC) where it was held as follows:
“Now Section 232 Subsection (1) of the Constitution provides: “232 (1) The Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between the Federation and a State or between States if and in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends. “It follows, therefore, that for this Court to exercise its original jurisdiction in a civil case between the Federation and State(s) or between States, there must be: (a) a dispute between the Federation and a State or States; (b) the dispute must involve a question of law or fact or both; and (c) the dispute must pertain to the existence or extent of a legal right.”
Per UWAIS, JSC (Pp. 9-10, paras. F-D)
Also in Kano A.G. Kano State V. A.G. Federation (2007) 6 NWLR (Pt.1029) 164 the apex held:
“It is quite clear from the numerous decision of this Court, that in order to invoke the original jurisdiction of this Court under Section 232(1) of the 1999 Constitution, there must be a dispute between the Federation and one or more State as component part of the Federation or between the States themselves and the character of the dispute, as clearly qualified by the section must involve a question whether of law or fact, on which existence of legal right depends. It must be clearly established that the dispute within the provision of the section, must be a justifiable dispute. In other words, the dispute contemplated under the section must be a dispute that is appropriate for judicial determination.” Per Mohammed JSC.
The above case was cited by the 4th – 5th Respondents but unfortunately was misapplied to the case in hand when the Respondent’s Counsel argued that the above conditions in this case had been met by the 4th and 5th Respondents in the instant case to the effect that there was real controversy in which the existence of a legal right depends between the Federal Government and the Edo State Government. It is crystal clear from the pleadings of the parties that no such dispute exist between the Edo State Government and the Federal Government in the instant action to ground the jurisdiction of the Supreme Court pursuant to Section 232(1) of the Constitution.
Against this background, the trial Court was wrong to have ruled that the provision of Section 232 of the Constitution made it clear that there arose a dispute in the case that made the Supreme Court to have jurisdiction over such dispute. No such dispute exist in the case particularly that the dispute that exist is between that Appellant (claimant) an individual who has no access to the Supreme Court under Section 232 of the Constitution and the 4th and 5th Respondents. It is the lower Court by reason of the claim of the Appellant and Section 272(1) of the Constitution that is endowed with jurisdiction to adjudicate in respect of the matter.
In conclusion, the 2nd issue is resolved in favour of the Appellant and against the 4th and 5th Respondents. This appeal therefore succeeds. Arising therefrom, the ruling of the lower Court being an infraction of the right of the Appellant to fair hearing under Section 36(1) of the 1999 Constitution renders the whole proceeding a nullity and the ruling subject to being set aside.
Accordingly, the ruling of the lower Court delivered by Hon. Justice E.F. Ikponmwen on 3rd March, 2019 is hereby set aside. The matter, Suit No. B/559/2011 between Moshood Onifade Akinwade V. Federal Government of Nigeria & 4 Ors is hereby remitted to the Chief Judge of Edo state for reassignment.
Parties to bear their respective costs.
THERESA NGOLIKA ORJI – ABADUA. J.C.A.: I have carefully studied the leading judgment in this appeal just delivered by my learned brother, Bola, J.C.A., and must say that in respect of issue no. 1, “Whether the Learned Trial Judge was right when he suo moto raised the issue of jurisdiction, and struck out the case of the Appellant for want of jurisdiction without inviting or allowing parties to address the Court on the issue suo moto raised”,
I tend to diverge from the leading opinion in this respect based on some Supreme Court decisions in Omokuwajo vs. FRN (2013) LPELR-20184(SC) per Rhodes-Vivour, JSC, ALIMS Nigeria Ltd vs. UBA (2013) LPELR-19768 (SC, per Fabiyi, JSC., Ominiyi vs. Alabi (2015) LPELR-24399(SC), per Kekere-Ekun, JSC, Angadi vs. PDP (2018) LPELR-44375(SC), per Bage, JSC, where the Supreme Court unequivocally enunciated and reiterated the instances where a Court can effectively raise issue(s) suo motu and determine the same without hearing the parties.
In Omokuwajo (supra), Rhodes-Vivour, JSC opined that:
“The need to give the parties a hearing when a judge raises an issue on his own motion or suo motu would not be necessary if:
(a) the issue relates to the Court’s own jurisdiction.
(b) both parties are/were not aware or ignored a statute which may have bearing on the case. That is to say where by virtue of statutory provision, the Judge is expected to take judicial notice. See Section 73 of the Evidence
(c) when on the face of the record serious questions of the fairness of the proceedings is evident.”
Also inOminiyi vs. Alabi(supra), Kekere-Ekun, JSC, restated the principles in Omokuwajo vs. FRN (supra) thus:
“The rare exceptions to the general rule were further elucidated in the case of Omokuwajo vs F.R.N. (supra) at 332 B-F where His Lordship Rhodes-Vivour, JSC in his concurring judgment stated: “The need to give the parties a hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if: (a) the issue relates to the Court’s own jurisdiction. (b) both parties are/were not aware or ignored a statute which may have a bearing on the case. That is to say where by virtue of a statutory provision the Judge is expected to take judicial notice. See Section 73 of the Evidence Act. (c) when on the face of the record serious questions of the fairness of the proceedings is evident.” His Lordship concluded by restating the general principle thus: “It is not open to the Court of Appeal to raise issues which the parties did not raise themselves either at the trial Court or during the hearing of (the) appeal.
Then recently in Angadi vs. PDP (supra) on the instance(s) where a Court can raise issue(s) suo motu and determine it without hearing parties, my Lord, Bage, JSC., had the following to say:
“The issue of whether the trial Court below was right in considering processes which they had not been addressed on processes filed before it. This Court has held particularly Gbagbarigha Vs Toruemi (2013) 6 NWLR (Pt.1350) 289 at 310, paragraphs C- G as follows: “When a Judge raises an issue on his own motion, or raises an issue not in contemplation of the parties; or an issue not before the Court, the Court is said to have raised the issue suo motu. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue… but there is an exception to this procedure. There would be no need to call on counsel to address the Court on an issue raised suo motu by the judge:- 1. When the issue relates to the Court’s own jurisdiction;
2. When both parties are not aware or ignored a statute which may have bearing on the case; or 3. When on the face of the record, serious questions of the fairness of the proceedings is evident.”
(Underlining mine). It is my fervent belief that the Court below, in deciding whether it had jurisdiction on the appeal, needed not to call any of the parties for further address in arriving at a decision.” (underlining mine)
My Lord, Bage, JSC, succinctly state that, see also the decision of this Court in Community Development Organization Turin-Maliki Quarters vs. Mohammed (2015) NWLR part 1465 page 585, per Orji-Abadua, JCA. All these decisions point to the fact that the lower Court was right in law to have raised the issue of jurisdiction suo motu without having to invite the parties to address it on it.
On issue no. 2, I agree that it is the claim of the plaintiff that determines the jurisdiction of the Court. The first two reliefs sought by the Appellant are for:
“1. Declaration and Order of the Court that the Plaintiff is the owner and holder of a Statutory Right of Occupancy with all concomitant proprietary, legal right and interest over all that piece or parcel of land situate and known as NO. 7D, Okoro Otun Avenue (which was described as Quarter 122), Government Reservation Area, Benin-City, Edo State measuring an area of Approximately 1071.697 Sqm and which exact abuttals and boundaries are bounded by beacons marked FOPED 127, FOPED 130, FGPED 129 and FGPED 128 respectively in a Survey Plan dated the 18th day of January, 2007 with Plan Number: L5721J-R prepared and drawn by Surveyor Ola-Olu O. Aina together with all the appurtenances and the development thereon.
(2) A DECLARATION AND AN ORDER OF THE COURT that the Plaintiff has been/and is in actual and effective possession and/or occupation of the aforesaid described piece parcel of land since the 27th day of September, 2000 and had ever since then remained in undisturbed, quiet and peaceable occupation and possession of the aforesaid piece or parcel of land until the events leading to this suit.”
These show that the jurisdiction to determine the substantive reliefs is vested in the High Court of a State as provided in Section 39 of the Land Use Act, that the High Court of a State shall have exclusive original jurisdiction in respect of proceedings relating to Statutory Rights of Occupancy granted by the Governor or deemed to have been granted by him under the Land Used Act. The Supreme Court in Adisa v. Oyinwola (2000) 10 NWLR part 674 page 116 at 217 held thus: “…while the State High Court has exclusive jurisdiction over lands in urban areas by virtue of Section 39(1) of the Land Use Act, it shares concurrent jurisdiction with the Customary or other Court of equivalent jurisdiction by virtue both of its entrenched unlimited jurisdiction under Section 236(1) of the Constitution and the jurisdiction conferred on the said Customary Court or other Court by Section 41 of the Land Use Act.
Further in Adetayo v. Ademola (2010) 15 NWLR part page 169, Mohammed, J.S.C. expressed as follows: “It is quite clear from the provisions of the above sections of the Land Use Act with specific powers and jurisdiction in respect of land matters specified therein conferred on State High Court, Area Court, Customary Court and Magistrate Court that the Federal High Court is not one of the Courts conferred with jurisdiction to entertain any dispute in land matters.
It is clear in the reliefs sought by the Appellant that he is the Claimant in the suit and not the State Government. He joined the 3rd-6th defendants as parties to the suit and as those trying to interfere with his ownership of the property in question. There is no relief in the suit being claimed by the 4th defendant, the Edo State Government, against the 1st defendant. The suit is clearly not between the Edo State Government and the Federal Government. This claim was totally misconceived by the lower Court and in that respect issue 2 is resolved in favour of the Appellant. In the same vein, the third issue is resolved in favour of the Appellant. I too allow this appeal and abide by the consequential order made in the leading judgment.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Samuel Ademola Bola, JCA.
In the leading judgment of his Lordship, the appeal was decided on two issues, the first question questions the propriety of the learned trial Judge raising and determining the issue of jurisdiction suo moto.
Generally, no Court of law is permitted to raise an issue suo moto and decide it without inviting parties to address her on the issue. See: –
State v. Ibrahim & Ors (2014) LPELR – 23468 (CA) P. 2 paras A – C, Okoro v. Okoro & Anor (1998) LPELR – 6403 (CA) PP 14 – 15 paras B – A, Jiwul v. Dimlong (2002) LPELR – 7083 (CA) P.18 paras B – D.
On this, I am on the same page with my learned brother.
However, I beg to disagree on the question whether a Court can raise and decide an issue of jurisdiction suo moto without inviting parties to address her on it. The settled position of the law is that the Court can raise an issue of its jurisdiction suo moto and decide it without inviting parties to address her on it. On this, I refer to and rely on PDP. v. Rijau & Ors (2021) LPELR – 54562 (CA) PP. 32 – 33 paras D – C, Mpanuago & Ors v. Glow Mckens Ltd (2018) LPELR – 50063 (CA) PP. 8 – 10 para B, Johnson & Ors v. A. G. Rivers State (2018) LPELR – 4937 (CA) PP. 26 – 27 para A.
In my view, being an issue of jurisdiction, it was within the competence of the learned trial Judge to raise and determine it without inviting parties to address him. What is however material in this appeal is whether he was indeed without jurisdiction to hear and determine the appellant’s claims.
The second issue on which the judgment of my learned brother was decided is, whether the trial Judge was right when he held that he had no jurisdiction to hear the appellant’s claims, on the ground that it was a matter that evokes the original jurisdiction of the Supreme Court under Section 232(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). His Lordship in the leading judgment determined this issue against the respondent. I endorse this view in its entirety. This is an action instituted by a private individual (the appellant) against the Federal Government and other agencies of Government and the Governor of Edo State over the appellant’s properties that were demolished. It is completely devoid of any form of constitutionality.
It is for this reason that I find merit in this appeal, and consequently set aside the ruling of the trial Court delivered on 3rd 2019.
I abide by the consequential orders made in the leading judgment.
Appearances:
Dr. V.E. Mammud. For Appellant(s)
M.I. Obasuyi, – Senior State Counsel, Ministry of Justice, Edo State for the 4th and 5th Respondents.
No Counsel appeared for the 1st, 2nd and 3rd Respondents. For Respondent(s)