ALHAJI AMUSA OLATUBOSUN V. THE PRESIDENT AND MEMBERS OF OLUYOLE LOCAL GOVT. OLODE/OMIYALE GRADE ‘C’ CUSTOMARYCOURT, IBADAN & ANOR.
(2010)LCN/3611(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of March, 2010
CA/I/44/2003
RATIO
JURISDICTION: HOW IS JURISDICTION OF A COURT DETERMINED
It is settled law that the jurisdiction of a court is determined on the relief sought by the claimant in the writ of summons and statement of claim. See the cases of ADEYEMI VS. OPEYORI (1976) 9-10 SC at 31, ADEBUSOLA VS. AKINDE (2004) 12 N.W.L.R Part 887 at 295. Once the subject matter of the case is within its jurisdiction then the Court is competent. See MADUKOLU VS. NKENDILIM (1962) 2 S.C.N.L.R at 341 or (1962) 1 All N.L.R Part 4 at 587; AKEEM VS. UNIVERSITY OF IBADAN (2003) 10 N.W.L.R Part 829 at 584 and OLUWATOBI OJU VS. ABDUL-RAHEEM (2009) All F.W.L.R Part 497 page 1 at 31 paras E-H PER MODUPE FASANMI, J.C.A
LAND LAW: NATURE OF HOLDING LAND
With the coming into operation of the Land Use Act, the nature of land holding anybody could have in land had been categorized into (1) Statutory Right of Occupancy for land situated in urban areas as designed by the Governor and (2) Customary Right of Occupancy for land situate in non-urban or rural areas. I quite agree with the learned Appellant’s Counsel that the operative Constitution in operation at the time the cause of action arose between the parties was the 1979 Constitution as amended. By virtue of Section 274 subsection 5 of the 1979 Constitution, the Land Use Act is entrenched in the Constitution as an existing law.
The Land Use Act is not just a Federal Enactment but one which has been given a special status by the said Section 274 (5) of the 1979 Constitution which provided that its provisions shall:
“apply and have full effect in accordance with their tenour and to the like effect as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of Section 9 (2) of this Constitution”
See ADISA VS. OYINWOLA & ORS. (2000) 2 S.C.N.Q.R Part 2 page 1264 at 1291 paras C-D per Ayoola J.S.C. PER MODUPE FASANMI, J.C.A
JURISDICTION: JURISDICTION OF COURT TO DEAL WITH LAND MATTERS
For the jurisdiction of Court to deal with land matters, Section 39 subsection 1 and Section 41 of the Land Use Act provide as follows:
Section 39 subsection 1.
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 these paragraph proceedings include proceeding for a declaration of title to a statutory right of occupancy.
And Section 41 says:
“An Area Court or a 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 the Act and for the purpose of this paragraph proceedings include proceedings for a declaration 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.”
See the case of ADISA VS. OYINWOLA & OTHERS (2000) 2 S.C.N.Q.R Part 2 page 1264 at page 1310 D-H and 1311 para A. PER MODUPE FASANMI, J.C.A
INTERPRETATION: ATTITUDE OF COURT TOWARDS INTERPRETATION OF STATUTES
In interpreting a statute, the meaning and intention of the legislation must be collected from the plain and unambiguous expressions used therein. In other words, the Courts are not to defeat the plain meaning of a statute by an introduction of their own words because to do that will amount to judicial legislation which the law frowns upon. See the case of AJAO VS. ADEMOLA (2005) All F.W.L.R Part 256 page 1239 at 1257 F-G.
In addition, the Courts favour literal interpretation of Statute unless it would lead to absurdity and inconsistency with the provisions of the statute as a whole see AJAO VS. ADEMOLA supra page 1239 at 1257 paras G-H. See also BUHARI VS. OBASANJO (2005) All F.W.LR PART 273 PAGE 1 AT 189 paras B-C and EIASANJO VS. DAWODU (2006) 50WRN at 79 PER MODUPE FASANMI, J.C.A
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
ALHAJI AMUSA OLATUBOSUN Appellant(s)
AND
(1) THE PRESIDENTAND MEMBERS OF OLUYOLE LOCAL GOVERNMENT OLODE/OMIYALE GRADE ‘C’ CUSTOMARY COURT, IBADAN
(2) ALHAJI YEKEEN OMOTAYO SALAMI Respondent(s)
DELIVERED BY MODUPE FASANMI, J.C.A: This is an appeal against the judgment of the High Court of Oyo State holden at Ibadan delivered on the 29th of February, 2000.
The Appellant claimed against the two Respondents by a motion on notice dated 20th July, 1998 an order:
“Prohibiting the President and members of the Oluyole Local Government Olode/Omiyale Grade ‘C’ Customary Court sitting at Mushin Odinjo, Area Ibadan from hearing or further hearing suit no. 182/98 currently pending in the said Court and any other suit which the 2nd Respondent may bring before the said court concerning or relating to the title or possession of the Applicant’s land at Alapata Village via Aiyetoro Egbeda-Tuba Road, Oluyole Local Government Ibadan.
The grounds on which the application was based were as follows:
(a) The Customary Court lacks jurisdiction to adjudicate over the claim of the 2nd Respondent, the value of the land, the subject matter of the claim being in excess of its jurisdiction as specified in its enabling law as amended.
(b) The Customary Court lacks jurisdiction to adjudicate over the subject matter of claim of the 2nd Respondent under the 1979 Constitution as suspended and modified. The Court being an inferior Court under the Constitution which the Constitution clearly stipulated that the limit of its jurisdiction shall be as specified by the creating legislature.
The application was supported by an affidavit of thirty one paragraphs to which five exhibits i.e Exhibits A, B, C, D & D1 were attached. In addition a further affidavit in support of motion on notice of six paragraphs was also filed. The second Respondent reacted by filing a counter affidavit of eighteen paragraphs to which an exhibit was attached as exhibit A.
The only oral evidence led at the trial was on behalf of the Applicant/Appellant through P.W1 who tendered as exhibit ‘A’ a valuation report of Appellant’s land. The learned trial Judge dismissed the application for prohibition. Appellant being dissatisfied appealed against the judgment by filing a notice of appeal dated 13th April 2000 containing ten grounds of appeal.
The crux of the affidavit evidence of the Appellant before the High Court was that he is the owner of a large parcel of land (which he acquired by purchase) situated at Alapata Village via Aiyetoro, Egbeda-Tuba road, Oluyole Local Government Ibadan, but of which the 1st Respondent has wrongfully decided to adjudicate upon at the instance of the 2nd Respondent. The counter affidavit denied the issues raised in the Appellant’s affidavit.
Appellant formulated four issues for determination as follows:
(1) Whether or not the learned trial Judge was right in holding that the Customary Courts Law 1981 of Oyo State (as amended) is inconsistent with and/or derogates from the Land Use Act by reason of which the latter statute must prevail over the former.
(2) Whether or not the learned trial Judge had jurisdiction and competence to declare that the Customary courts Law, 1981 as amended or any Section of it was void when it was not clearly proved that it actually violated or conflicted with the Provisions of any Decree (or Federal legislation) including the Land Use Act in force at the time the cause of action arose.
(3) Whether or not having regard to the evidence before him the learned trial Judge was right in holding that the Grade ‘C’ Customary Court (1st Respondent) had jurisdiction to entertain the land cause or matter which was initiated before it by the second Respondent despite the limitation of its jurisdiction in such causes by its enabling statute
(4) Whether or not the learned trial Judge was right and exercised his discretion judicially and judiciously in refusing to exercise his abundant statutory powers to prohibit the 1st Respondent from entertaining the land cause/matter initiated before it by the 2nd Respondent notwithstanding the alleged grounds of incompetence/excess of jurisdiction brought to his attention by the Applicant/Appellant.
Appellant abandoned grounds 7 & 9 of the grounds of appeal.
The 2nd Respondent in response contended that the appeal raises only one issue for determination thus:
(1) Whether having regard to Section 41 of the Land Use Act and the provisions of the 1979 Constitution, the lower Court was right to refuse the application of the Appellant
From a proper reading of all the grounds of appeal and their particulars as well as the issues canvassed by the Appellant in his brief and the Respondents brief, it appears to me that the central and key issue in this appeal is the state of the law on the interpretation and application of the provisions of Section 41 of the Land Use Act 1978 vis-a-vis the provision of the Oyo State Customary Courts Law which limits the jurisdiction of Grade C Customary Courts to a maximum of N10,000.00 (Ten thousand naira). The decision of the learned trial Judge in his ruling of 29th February 2000 touched on this crucial issue. I therefore say that the sole issue that could determine this appeal one way or the other is issue 3 of the Appellant. In view of the above the appeal will be determined on issue of the Appellant while the other issues formulated by the Appellant are therefore subsumed in issue 3. The Respondent’s sole issue is also a repetition of the Appellant’s issue 3 as well but couched differently.
Issue 3
Whether or not having regard to the evidence before him, the learned trial Judge was right in holding that the Grade C Customary Court (1st Respondent) had jurisdiction to entertain the land cause or matter which was initiated before it by the 2nd Respondent despite the limitation of its jurisdiction in such causes by its enabling statute.
Learned Counsel for the Appellant on his part contended that in so far as the Applicant’s affidavit and the 2nd Respondent’s counter-affidavit conflicted on the question of the value of the land which the 2nd Respondent sued the Applicant for declaration of title, before the High Court, the learned trial Judge was obliged to make an express finding of fact upon the said question. Learned Counsel referred to the case of T.A. OYEFOLU & ORS VS. A.A. DUROSINMI (2001) 7 N.S.C Q.R AT 67 which is to the effect that a trial court has a duty to make express findings on issues joined by the parties and upon which evidence has been led by them. Learned Counsel for the Appellant submitted that in so far as the Customary Courts Law, 1981 and the Customary Courts (Amendment) Edict 1997 of Oyo State (which regulated the 1st Respondent) had not been shown or proved to have genuinely infringed the Constitution, the learned trial Judge was obliged to accept the said statutes as valid and enforceable and give effect to them. He referred to the cases of MILITARY GOVERNOR OF ONOO STATE & ANOR VS. VICTOR ADEWUNMI (1985) 3 N.W.L.R Part 13 at 493 and CHIEF M. O. OBADAN & ORS VS. MILITARY GOVERNOR OF KWARA STATE & ORS (1994) 4 N.W.L.R. Part 336 at 26. He argued further that the 1st & 2nd Respondents failed to prove before the trial Court that the 1st Respondent (the Grade C Customary Court) had jurisdiction to entertain the claim of the 2nd Respondent but on the contrary the Applicant proved before the trial Court that the 1st Respondent had no jurisdiction to entertain the said claims. This is because he proved through P.W.1 that the value of the land being adjudicated upon by the 1st Respondent was N2.5 million naira, a sum in excess of the jurisdiction of the 1st Respondent in land matters of N10,000.00 (Ten thousand naira) as prescribed by law to wit: Customary Courts Law 1981, Customary Courts(Amendment) Edict 1997.
Learned Counsel submitted that the learned trial Judge committed a fundamental error when he refused to prohibit the 1st Respondent from hearing or further hearing suit no 182/98 in the face of the clear evidence before him that it lacked jurisdiction so to do. He went further that where a Court has no jurisdiction over a matter, it cannot validly exercise any judicial power thereon. He cited OLOBA VS. AKEREJA (1988) 3 N.W.L.R Part 84 at 508, STATE VS. ONAGORUWA (1991) 2 N.W.L.R. Part 221 page 33 at 57 and OKENMA VS. NWAEGBU (1992) 2 N.W.L.R Part 225 at 622.
He urged this Court to set aside the judgment of the trial Court in view of the erroneous findings of fact by the trial Court. He submitted that its application of the law to properly found facts is perversed. Learned Counsel referred to the cases of EBBAVS. OGODO (2000) 2 S.C.N.Q.R Part 2 page 943 at 988 and T. A. OYEFOLU & ORS VS. A.A. DUROSINMI (2001) 7 N.S.C.Q.R Page 67 at 75.
Learned Counsel for the Appellant argued further that a great deal in this appeal do not depend so much on the credibility or reliability of witnesses but that it depends on documentary evidence. He submitted that if it did, the trial Court found P.W.1 a credible witness as stated above. Learned Counsel urged the Court to consider the merits of this appeal and allow same by granting the order of prohibition as was sought for in the High Court.
Learned Counsel for the 2nd Respondent on his part in reply submitted that the learned trial Judge considered the evidence of the sole witness in the proceeding before the lower Court and found that if the Land Use Act had not been made, if the law on title to land had remained as it was before the Act, then Section 14 of the Customary Courts Edict of Oyo State would have been valid and that would have made the value of the land a determinant of jurisdiction for the 1st Respondent, but since the Act, which by the 1979 Constitution is the sole source of jurisdiction in land matters for Courts like the 1st Respondent, it was irrelevant to a proceedings that the value of the land was one hundred million naira, once the land was proved to be in a non-urban area and this fact is not in dispute. Learned Counsel to the 2nd Respondent submitted that the case of ADISA VS. OYINWOLA (2000) 6 S.C Part 2 at page 47 cited by the Appellant only decided that the High Court has concurrent jurisdiction with the Customary Court over lands in non-urban areas, from a proper interpretation of that Act, which used the words ‘exclusive’ to qualify the jurisdiction of the High Court in Section 39, but omitted same in Section 41 with regards to the jurisdiction of customary courts.
Learned Counsel for the 2nd Respondent urged the Court to resolve this issue against the Appellant.
It is settled law that the jurisdiction of a court is determined on the relief sought by the claimant in the writ of summons and statement of claim. See the cases of ADEYEMI VS. OPEYORI (1976) 9-10 SC at 31, ADEBUSOLA VS. AKINDE (2004) 12 N.W.L.R Part 887 at 295. Once the subject matter of the case is within its jurisdiction then the Court is competent. See MADUKOLU VS. NKENDILIM (1962) 2 S.C.N.L.R at 341 or (1962) 1 All N.L.R Part 4 at 587; AKEEM VS. UNIVERSITY OF IBADAN (2003) 10 N.W.L.R Part 829 at 584 and OLUWATOBI OJU VS. ABDUL-RAHEEM (2009) All F.W.L.R Part 497 page 1 at 31 paras E-H
Having stated the principle of law above, the next question is what is the 2nd Respondent’s claim at the Customary Court Grade ‘C’ that warranted the filing of the motion for prohibition against the Customary Court Grade C and the 2nd Respondent before the High Court.
The 2nd Respondent’s claim as stated on page 14 of the record paragraph 17 of the Appellant’s supporting affidavit for the motion seeking order of prohibition is as follows:
(a) Declaration that the Plaintiff is the person entitled to be granted Customary right of occupancy in respect of the parcel of land situate, lying and being at Alapata Village via Egbeda-Tuba Road, Ibadan a distance of 12.8 kilometers radius from Mapo Town Hall and bounded on the 1st side by Apete Awowo family land, 2nd side by Akinola family land, 3rd side by Lasisi Alapata family land and on the 4th side by Ooro family.
(b) One thousand naira being damages suffered by the Plaintiff as a result of the Defendants acts of trespass and which trespass still continues
(c) Perpetual injunction restraining the Defendants, their servants, agents and privies from committing further acts of trespass on the said land Value of the land is N4,000.00 (four thousand naira).
From the claim filed at the Customary Court, it is stated that the land in dispute between the parties is about 12.8 kilometers from Mapo Hall, Ibadan. It is not in dispute between the parties that the land is situated in a rural area. The bone of contention of the Appellant is that the Customary Court Grade C has no jurisdiction over the matter in view of the evidence of P.W.1 who testified at the hearing of the application for prohibition before the High Court that the value of the land is N2.5million inclusive of the cash crops on the land. At page 42 of the record under cross-examination, Elijah Kayode Olapade P.W.1 had this to say:
“In my valuation report, I took into consideration both the land and cash crops thereon as at the date of the valuation. The value of the land would have been different if the bare land had been valued without the cash crops.”
Appellant’s Counsel submitted that the 1st Respondent i.e (Grade C Customary Court) has no jurisdiction because the value of the land being adjudicated upon was N2.5million is based on the premise that the operative law at the time the cause of action arose in 1998 was the Customary Courts Law 1981 and the Customary Courts (Amendment) Edict 1997 of Oyo State which regulated the 1st Respondent and which have not been shown to have genuinely infringe the 1979 Constitution as amended which was the operative Constitution at the time the action arose. Learned Appellant’s Counsel submission would have been right or apt before the coming into operation of the Land Use Act which had changed the nature of land holding in Nigeria. With the coming into operation of the Land Use Act, the nature of land holding anybody could have in land had been categorized into (1) Statutory Right of Occupancy for land situated in urban areas as designed by the Governor and (2) Customary Right of Occupancy for land situate in non-urban or rural areas. I quite agree with the learned Appellant’s Counsel that the operative Constitution in operation at the time the cause of action arose between the parties was the 1979 Constitution as amended. By virtue of Section 274 subsection 5 of the 1979 Constitution, the Land Use Act is entrenched in the Constitution as an existing law.
The Land Use Act is not just a Federal Enactment but one which has been given a special status by the said Section 274 (5) of the 1979 Constitution which provided that its provisions shall:
“apply and have full effect in accordance with their tenour and to the like effect as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of Section 9 (2) of this Constitution”
See ADISA VS. OYINWOLA & ORS. (2000) 2 S.C.N.Q.R Part 2 page 1264 at 1291 paras C-D per Ayoola J.S.C.
For the jurisdiction of Court to deal with land matters, Section 39 subsection 1 and Section 41 of the Land Use Act provide as follows:
Section 39 subsection 1.
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 these paragraph proceedings include proceeding for a declaration of title to a statutory right of occupancy.
And Section 41 says:
“An Area Court or a 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 the Act and for the purpose of this paragraph proceedings include proceedings for a declaration 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.”
See the case of ADISA VS. OYINWOLA & OTHERS (2000) 2 S.C.N.Q.R Part 2 page 1264 at page 1310 D-H and 1311 para A.
Since the 2nd Respondent’s claim at the Customary Court is seeking for declaration that he is the one entitled to be granted customary right of occupancy, the appropriate Court which has jurisdiction over the matter under the Land Use Act 1978 is the Customary Court by virtue of Section 41: Since the Land Use Act is an existing Federal Law, any law that is inconsistent with it shall to the extent of the inconsistency be void. In effect, the provision in the Oyo State Customary Courts law which limits the jurisdiction of Grade C Customary Courts to a maximum of N10,000.00 would have to give way to the Provisions of the Land Use Act because Customary Courts have been given original jurisdiction to adjudicate over matters dealing with customary right of occupancy over land situate in non-urban or rural areas.
Besides, there is nowhere in the Land Use Act that the value of the land is made a condition precedent to the institution of legal proceedings. In interpreting a statute, the meaning and intention of the legislation must be collected from the plain and unambiguous expressions used therein. In other words, the Courts are not to defeat the plain meaning of a statute by an introduction of their own words because to do that will amount to judicial legislation which the law frowns upon. See the case of AJAO VS. ADEMOLA (2005) All F.W.L.R Part 256 page 1239 at 1257 F-G.
In addition, the Courts favour literal interpretation of Statute unless it would lead to absurdity and inconsistency with the provisions of the statute as a whole see AJAO VS. ADEMOLA supra page 1239 at 1257 paras G-H. See also BUHARI VS. OBASANJO (2005) All F.W.LR PART 273 PAGE 1 AT 189 paras B-C and EIASANJO VS. DAWODU (2006) 50WRN at 79
The lower court jettisoned the opinion of the expert on valuation of the land because the report was prepared at the request of the Appellant. It lacks probative and or evidential value. When the Court of Appeal in ANPP VS. USMAN (2008) 12 N.W.L.R Part 110 page 1 at 73 was faced with a similar dilemma on the evidence of experts, Aboki J.C.A held as follows:
“The Court must be wary of admitting a report prepared by an expert, not at the instance of the Court but at the behest of any of the parties to the dispute. Such a report should be taken with a pinch of salt.”
A trial Judge would rather prefer credible evidence of a non-expert witness on an issue to the evidence of an expert on the same issue where the former is an independent witness whilst the latter prepared his evidence specifically for the case on hand on the direction of the party calling him. See ELF NIG. LTD VS. SILLO (19940 6 N.W.L.R. Part 350 at 258. In sum the issue is resolved against the Appellant.
The learned trial Judge rightly refused to prohibit the 1st Respondent from entertaining the Land cause/matter initiated before it. by the 2nd Respondent, since the Customary Court has jurisdiction by virtue of Section 41 of the Land Use Act. Since the findings of the learned trial Judge are not preverse or erroneous, this Court cannot set aside its judgment. The ruling of the lower Court is hereby affirmed. The appeal fails or lacks merit and it is accordingly dismissed. Cost of N30,000.00 is awarded in favour of the 2nd Respondent.
STANLEY SHENKO ALAGOA, J.C.A.: I read before now the judgment just delivered by my brother Modupe Fasanmi (J.C.A.) and I am also of the view that the appeal lacks merit and should be dismissed. I also dismiss same.
CHIDI NWAOMA UWA, J.C.A. I read in advance before now the judgment just delivered by my learned brother M. Fasanmi, J.C.A. I agree with the reasoning and conclusion reached in holding that the appeal lacks merit and order dismissing same.
Appearances
Ademola LajideFor Appellant
AND
I.A. SakaFor Respondent
