ENGNR. P. J. I. AZAGBA v. NIGERIAN COLLEGE OF AVIATION TECHNOLOGY, ZARIA & ANOR. (2013)

ENGNR. P. J. I. AZAGBA v. NIGERIAN COLLEGE OF AVIATION TECHNOLOGY, ZARIA & ANOR.

(2013)LCN/6133(CA)

In The Court of Appeal of Nigeria

On Friday, the 26th day of April, 2013

CA/K/92/2010

RATIO

JURISDICTION: THE COURT THAT HAS JURISDICTION TO HANDLE FEDERAL GOVERNMENT RELATED MATTERS

In Paico (Press & Books) Ltd v. CBN (2001) 3 NWLR (pt.700) page 347 at 372 the Court per Opene JCA held:
“It is clear misconception of the law to say whenever any Federal Government agency is involved in an action that the forum must be the Federal High Court without any regard to the nature of the transaction. In fact there is no authority that support that view and the cases cited by the learned counsel also do not support it”
I am of the opinion that even though one of the parties to the action may be an agency of the Federal Government, where the acts complained of has nothing to do with any executive or administrative action or decision of an agency of the Federal Government, it is the State High Court that should have jurisdiction over the matter.
In Oluruntobo – Oju v. Dupamu (2003) FWLR (pt. l58) page 1264 the Court held that it is not all matters against the Federal Government or any of its agencies that must go to the Federal High Court. That the Federal High Court being a court of limited jurisdiction, whose jurisdiction is clearly circumscribed by section 251 of the Constitution, it is the subject matter of the suit that would determine whether or not the Federal High Court would exercise jurisdiction.
In Odutola v. NITEL (supra) at 91 Augie, JCA said of when the Federal High Court would have exclusive jurisdiction thus:
“In this case, it is not enough for the Appellant to say he is asking for a declaration or injunction, so his matter must go to the Federal High Court. No, not all the act complained of, or for which he is seeking a declaration or injunction must be relating to the executive or administrative action or decisions of the Respondent.PER ABDU ABOKI, J.C.A.

FEDERAL HIGH COURT: WHAT DETERMINES MATTERS THAT GO TO THE FEDERAL HIGH COURT
In Achebe v. Nwosu (2002) FWLR (pt.106) page 1000, it has been held that the subject matter of the suit is what determines whether the Federal High Court has exclusive jurisdiction or not and that the Federal High Court has no jurisdiction to entertain land disputes, since it is not one of the Courts listed under section 39 and 41 of the Land Use Act. See:
Omotosho v. Abdullahi (2008) All FWLR (pt. 402) page 114.
Federal Mortgage Bank of Nigeria v. Olloh (2002) FWLR (pt. 107) page 1244.PER ABDU ABOKI, J.C.A.

JURISDICTION: WHICH COURT IS VESTED WITH THE JURISDICTION TO HANDLE LAND MATTERS UNDER STATUTORY RIGHT OF OCCUPANCY

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

T. N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria

H. A. ABIRU Justice of The Court of Appeal of Nigeria

Between

ENGNR. P. J. I. AZAGBA Appellant(s)

AND

1. NIGERIAN COLLEGE OF AVIATION TECHNOLOGY, ZARIA
2. RECTOR NIGERIAN COLLEGE OF AVIATION TECHNOLOGY, ZARIA Respondent(s)

ABDU ABOKI, J.C.A. (Delivering the leading Judgment): This is an Appeal against the decision of the High Court of Justice Kaduna State sitting in Zaria delivered on 30th day of October 2008 by B. F. Isah J.
Dissatisfied with the decision, the Appellant who was the Plaintiff at the trial court appealed to this court.
The facts giving rise to this appeal are that the plaintiff (Appellant herein) instituted a suit vide a writ of summons, dated 26th day of March 2007 against the Defendants (Respondents herein) claiming some declarative reliefs and injunctive Order over the piece of land measuring 0.097 Hectares covered by State Certificate of Occupancy number KD.5251, lying and situate along Grace Lands Road at Ungwar Yusi, Hanwa extension, Zaria.
The writ was subsequently followed by an application for interlocutory injunction to restrain the Defendants (Respondents herein) from taking any step(s) that would affect the Plaintiff’s right of ownership in the land.
The Defendant (Respondent herein) entered a conditional appearance vide a motion dated 25th April, 2007.
On the 7th June, 2007, the Defendant (Respondent herein) vide an application dated 31st May 2007 raised Preliminary Objection challenging the jurisdiction of the trial High Court on the grounds that the 1st Defendant (1st Respondent herein) is a Federal Government Agency, and in view of the injunctive relief being sought against the Defendants (Respondents herein).
The Plaintiff (Appellant herein) opposed the Preliminary Objection, the substance of which is that the trial Court has exclusive original jurisdiction over the Plaintiff’s (Appellant herein) claim being a land matter. The Defendants (Respondents herein) urged the lower Court to strike out the Plaintiff’s (Appellant’s herein) suit for want of jurisdiction.
After considering the arguments of both counsel on the issue of jurisdiction the lower Court in its ruling delivered on 30th October, 2008,the court declined jurisdiction to entertain the Plaintiff’s (Appellant herein) suit, and struck out same.
Dissatisfied with the ruling, the Appellant appealed to this Court by filing a lone ground of appeal dated and filed on 10th day of November, 2008. The parties in accordance with the relevant rules of this Court duly filed and exchanged briefs and at the hearing of this appeal, the parties adopted and relied on the arguments and submission contained in their respective brief of arguments. The Appellants brief of argument dated 24th May, 2010 and filed the same date was settled by K. A. Adedokun Esq. The Appellant’s counsel distilled a lone issue from the lone ground of appeals reads thus:
“Whether the learned trial judge rightly declined jurisdiction to entertain the Plaintiff’s suit for declaration of title to land on a singular reason that the first Defendant is an Agency of the Federal Government”
The Respondents’ brief of argument dated 22nd day of June 2010 and filed on 23rd June 2010 was settled by Kodi Azunoye contained a lone issue formulated for the determination of this appeal and reads as follows:
“Whether or not the lower court was right to decline jurisdiction to entertain the Appellant’s suit for, inter alia, declaration of title to the land in dispute on the ground that same was land held in title by the Federal government through its agent the first Defendant and, as such, outside the operation and effect of the Land Use Act”.
The issue as formulated by the Appellant is adopted for the determination of this appeal.
It is has been submitted on behalf of the Appellant that the entire argument of the parties hinges on the issue of jurisdiction.
The Court was referred to the cases of Onuorah v. Kaduna Refinery & Petrochemical Co. Ltd. (2005) 6 NWLR (pt. 921) page 393 at 404,
D.E.N.R. v. Trans International Bank Ltd. (2009) All FWLR (pt.456) page 1823 at 1856.
Learned counsel for the Appellant maintained that Section 251 of the 1999 Constitution enumerates some items over which the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court.
He further submitted that a thorough perusal of the Constitutional provision leaves no one in doubt that it does not confer jurisdiction on the Federal High court on Land Matters.
Learned counsel argued that the provisions of Section 251 of the Constitution are not at large and they do not exceed the matters specified in paragraphs (a) – (5) thereat, and that the appellant’s claim before the lower Court does not fall within the ambit of the section. He contended that the said section does not confer blanket jurisdiction to the effect that any action against the Federal Government or its agencies notwithstanding the subject matter of the action, must be instituted or entertained and determination the Federal High Court.
Learned counsel insisted that the said section of the Constitution does not confer jurisdiction on parties brief on the subject matter of the Court.
The Court was referred to the cases of ;
Omosowan v. Chiedozie (1998) 9 NWLR (pt. 566) page 477 at 484,
P.P.M.C. Ltd. v. Delphi Petroleum Inc. (2005) 8 NWLR (pt.928) page 488 at 490 – 491,
Omotosho v. Abdullahi (2008) 2 NWLR (pt. 1072) page 526 at 544,
N.I.M. R v. Akin – Olugbade (2008) 5 NWLR (pt. 1079) page 68 – 95.
Learned counsel for the Appellant argued that the provisions of Section 272(1) of the 1999 Constitution and Section 39(1) of the Land Use Act, CAP L5 LFN 2004 expressing confer exclusive original jurisdiction on the lower Court (being a State High Court) to entertain the Appellant’s claims. The Court was referred to the cases of Adisa v. Oyinlola (2000) 10 NWLR (pt. 674) page 166 at 202, Enhunmwuse v. Etianire (2003) 13 NWLR (pt. 837) page 353 at 370.
Learned counsel submitted in view of the statutory authorities cited, it is obvious that the Federal High Court is not envisaged as a Court to try land matters regardless of statutory nature of the Respondents. He argued that the claims of the Appellant as endorsed in the writ of summons dated 21st March 2007 leaves no one in doubt that they fall squarely with the jurisdiction of the lower Court.
Learned counsel contended that the lower Court misconceived the ratio of NEPA v. Edegbero when it declined jurisdiction on the Appellant’s claim on a singular reason that the Respondents are agencies of the Federal Government. The Court was referred to the case of Paico (Press & Books) Ltd. v. C. B. N (2001) 3 NWLR (pt. 700) page 347 at 372.
Learned counsel for the Appellant urged the Court to hold that Section 251 of the 1999 Constitution and the case of NEPA v. Edegbiro are not authorities to forbid the lower Court from entertaining the Appellant’s suit even though the Respondents are Federal Government Agencies. He finally urged the Court to resolve the lone issue in this appeal in favour of the Appellant and consequently allow this appeal.
The Respondents in their submission on this lone issue submitted that the land in dispute being land held in title by the 1st Defendant (1st Respondent herein) an agency of the Federal Government, is exempted from the operation and effect of Section 49(1) of the Land Use Act, Cap 202 LFN 2004. He cited in support the case of Ona v. Atanda (2000) 5 NWLR (pt. 650) page 244 at 285 – 286.
Reference was also made to the Preamble of the Land Use Act and Section 49(1) of the said Act.
Learned counsel submitted that the combined effect of the preamble to the Land Use Act and Section 49(1) is to preclude the power conferred on and exercised by the Governor of a State under the Land Use Act, as such powers are inapplicable and do not arise in respect of title to land held by the Federal Government or any of its agency. He cited in support of the submission the case of Ona v. Atanda (supra) page 244 at 267.
Learned counsel submitted that the reliefs 2, 3 and 4 sought by the Appellant in his writ of summons are challenging the administrative actions and/or seeking injunctive reliefs against the 1st respondent an agency of the Federal Government.
Learned counsel maintained that the Federal High Court has exclusive jurisdiction in matters where one of the parties is the Federal Government or an agency of the Federal Government, unless there are express statutory provisions to the contrary. He referred the Court to the cases of NEPA v. Edegbero (supra), Nwude v. Chairman EFCC (2005) All FWLR (pt. 276) page 740 – 755,
Inegbedion v. Selo Ojenien (2004) 12 NWLR (pt. 887) page 411 at 428,
NAIC v. W.S. & F Plc (2007) All FWLR (pt. 345) page 366 at 276,
Onurah v. KRPC Ltd. (2005) 6 NWLR (pt. 921) page 393 at 405,
Otiki v. Bajehson (2006) All FWLR (pt. 307) page 1054 at 1072 – 1074,
L.N.R.B.R.D.A. v. Olagbegi (2005) All FWLR (pt. 254) page 835 at 855.
Learned counsel to the Respondents argued that the reliefs sought by the Appellant are within the ambit of subsections (q), (r) and (s) of Section 251 of 1999 Constitution and that the State High Court does not have jurisdiction. He contended that the issue of jurisdiction of a Court is so fundamental that it forms the Foundation of adjudication and that a decision reached without jurisdiction is null and void irrespective of how well conducted. He referred to the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 21.
Learned counsel submitted that as soon as a Court discovers that it lacks jurisdiction to entertain an action, it should without further delay strike out the matter. He cited in support of his submission the case of Kasumu v. Shitta – bey (2007) All FWLR (pt. 356) page 741 at 773 – 774.
He further submitted that the Court below was right in law to have declined jurisdiction to entertain the appellant’s suit because the subject matter of the suit is land being held in title by the 1st Respondent, an agency of the Federal Government, falls outside the sphere of the Governor of Kaduna State’s control and therefore beyond the jurisdiction of the Zaria Judicial Division of the Kaduna State High Court.
Learned counsel for the Respondents urged the Court to uphold the decision of the Court below and to dismiss the appellant’s appeal as lacking in merit.
Learned counsel to the Respondent referred to the case of NEPA v. Edegboro (supra) in support of his submission that the Federal High Court has exclusive jurisdiction in matters where one of the parties is the Federal Government or an agency of the Federal Government, unless there are express statutory provisions to the contrary.
In Paico (Press & Books) Ltd v. CBN (2001) 3 NWLR (pt.700) page 347 at 372 the Court per Opene JCA held:
“It is clear misconception of the law to say whenever any Federal Government agency is involved in an action that the forum must be the Federal High Court without any regard to the nature of the transaction. In fact there is no authority that support that view and the cases cited by the learned counsel also do not support it”
I am of the opinion that even though one of the parties to the action may be an agency of the Federal Government, where the acts complained of has nothing to do with any executive or administrative action or decision of an agency of the Federal Government, it is the State High Court that should have jurisdiction over the matter.
In Oluruntobo – Oju v. Dupamu (2003) FWLR (pt. l58) page 1264 the Court held that it is not all matters against the Federal Government or any of its agencies that must go to the Federal High Court. That the Federal High Court being a court of limited jurisdiction, whose jurisdiction is clearly circumscribed by section 251 of the Constitution, it is the subject matter of the suit that would determine whether or not the Federal High Court would exercise jurisdiction.
In Odutola v. NITEL (supra) at 91 Augie, JCA said of when the Federal High Court would have exclusive jurisdiction thus:
“In this case, it is not enough for the Appellant to say he is asking for a declaration or injunction, so his matter must go to the Federal High Court. No, not all the act complained of, or for which he is seeking a declaration or injunction must be relating to the executive or administrative action or decisions of the Respondent. The question may well be asked and I will ask it – can the acts of debiting the Appellants’ bill, tossing the Appellants’ telephone line, making available a breakdown of appellant’s call schedule, be described as acts made in a management capacity?
Do they flow from an executive action or decision by the Respondent?
The answer is an emphatic No;
They are the usual functions, the day to day, nitty gritty work in a telecommunication business which may be described as technical, but contrary not executive or administrative acts”
In Omotosho v. Abdullahi (supra) the Court held that section 251 of the 1999 Constitution and section 39(1) of the Land Use Act do not confer jurisdiction on parties but on subject matter or nature of the suit.

It is settled law that a Court of law drives its jurisdiction from the Constitution and statute establishing or constituting it.

In ascertaining whether a Court has jurisdiction to entertain a matter, the statement of claim or where absent the writ of summons are the only document to be looked at. The court is not to look at the Defendants counter-claim or any other process. See: Abdulraheem v. Oluruntoba – Oja (2007) All FWLR (pt.334) page 267,
Kashogbon v. Adeogun (No.2) (2007) All FWLR (pt. 396) page 641, Inakoji v. Adeleke (2007) All FWLR (pt. 333) page 1.
The action giving rise to the instant appeal was commenced at the Court below by writ of summons dated 21st day of March 2007. The endorsement on the writ is adumbrated as follows:
“ENDORSEMENT.
1. a declaration that the Plaintiff is the rightful owner of the parcel of land measuring 0.097 Hectares covered by state certificate of occupancy number KD.5251 lying and situate along Grace Lands Road at Ungwar Yusi Hanwa extension Zaria in Sabon Gari Local Government Area of Kaduna state the corners of which are marked on the ground by property Beacons Numbers ZRA.6448: ZRA.6449, ZRA.6446, and ZRA.6447 as shown on the TPO Sheet number 102S.W. and equally bounded as follows:
East…. Pastor Adesina’s property
West….. Professor Olukosi’s residence
South….. Graceland Road.
North…. Aviation concrete fence:
2. A declaration that the right of occupancy number KDG. 1865 covering the piece of land measuring 232.70 Hectares issued by the Ministry of Lands, Survey and Country planning Kaduna to the Defendants on the 31/1/06 in so far as it includes the plaintiff’s piece off land as described in paragraph (1) above is null and void same having been issued on the face of existing customary and Statutory title and in violation of the conditions for the grant Right Or Occupancy as stipulated by Law.
3. An order setting aside the approval for extension of Right of occupancy granted the 1st Defendant on 31st January 2006 by the Ministry of lands, Survey and country Planning Kaduna Measuring 232.70 Hectares and covered by Right of Occupancy KDG 1865 as same encroaches on the plaintiff’s Land and was applied for malafide.
4. An order of perpetual injunction restraining the defendants, their agents, privies, servants or any person(s) howsoever called from tampering in any manner with plaintiff’s land afore described or taking any step(s) that will deny the plaintiff his right of ownership of the land”.
It is clear from the endorsement on writ of summons that the Appellant’s claim is in respect of a parcel of land measuring 0.097 Hectares covered by State certificate of occupancy number KD.5251 lying and situate along Grace Lands Road at Ungwar Yusi Hanwa extension Taria in Sabon Gari Local Government Area of Kaduna State which he alleged has been curved into the Respondents’ land measuring 232.70 Hectares and covered by right of Occupancy number KDG.1865 granted on 31/1/06.
It seems to me therefore that the land in dispute may not be the same as that described by the Respondents as being part of a vast area of land held in title by the Federal Government of Nigeria through the 1st Defendant/Respondent prior to and/or since 1965, long before the Land Use Act came into operation in L978. If the claims of the Respondent’s is on the same land, then their claim is over a State Land.
Since the disputed land is a State land Section 39(1) of the Land Use Act 1978 stipulates that only a State High Court has exclusive jurisdiction.
The section is adumbrated as follows:
“39 (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 the Act, and for the purpose of this paragraph proceedings include proceedings for a declaration of title to a statutory right of occupancy.
(b) proceedings to determine any question to the persons entitled to compensation payable for improvements on land under the Act”.
In Achebe v. Nwosu (2002) FWLR (pt.106) page 1000, it has been held that the subject matter of the suit is what determines whether the Federal High Court has exclusive jurisdiction or not and that the Federal High Court has no jurisdiction to entertain land disputes, since it is not one of the Courts listed under section 39 and 41 of the Land Use Act. See:
Omotosho v. Abdullahi (2008) All FWLR (pt. 402) page 114.
Federal Mortgage Bank of Nigeria v. Olloh (2002) FWLR (pt. 107) page 1244.

In Adisa v. Oyenwole (2000) 10 NWLR (pt. 674) page 166 at 202, it was held that the State High Court is vested with original and exclusive jurisdiction in clear terms in respect of all causes or matters relating to land the subject of a Statutory right of occupancy granted by the State Government or deemed to have been granted by it under the Land Use Act, whether or not the land is situate in Urban or non-urban Area.
The case of Ona v. Atanda (2000) 5 NWLR (pt. 656) page 244 cited by learned counsel to the Respondents can be distinguished from the present case on appeal both in law and on fact.
The land in dispute in Atanda’s case the land was situated in the Federal Capital Territory which land was already vested in the Federal Government since 1976. The claim of the Appellant in this appeal is that the land in dispute is her own and that it has never been vested in the 1st Respondent at all, that the 1st Respondent’s land does not extend to her own land on which she has been granted statutory Right of Occupancy.
It is clear from the letter from Hon. Commissioner of Lands Kaduna State at page 23 of the record, that what the 1st Respondent is seeking is additional piece of land and not approval on the land already vested on it. To this extent, the authority of Ona v. Atanda (supra) is misapplied and it is inapplicable to the instant case.
The Kaduna State High Court sitting in Zaria was in error in declining jurisdiction to entertain the matter and striking out same.
There is merit in this Appeal. The decision of the Kaduna State High Court sitting in Zaria delivered on 30th day of October 2008 is hereby set aside. The matter is remitted to the Chief Judge of Kaduna State for re-assignment to another Judge for trial.

THERESA NGOLIKA ORJI-ABADUA, J.C.A: I had the privilege of reading before now the judgment of my learned brother, Aboki, J.C.A., and I absolutely agree that the Federal High Court has no jurisdiction whatsoever to deal with land matters.
It is trite that the jurisdiction of the Court will be determined by the subject matter of the claim. In Adeyemi & Ors. v. Oyeyori (1976) 1 F.N.L.L. 149, the Supreme Court stated that it is fundamental that it is the claim of the Plaintiff that determines the jurisdiction of the Court which entertains the claim. In the instant appeal, the subject matter as demonstrated in the Respondent’s Statement of Claim is the parcel of land covered by Statutory Certificate of Occupancy No.KD.5251 situated along Grace Lands Road, Ungwar Yusi Hanwa Extension, Zaria in Sabon Gari Local Government Area of Kaduna State. Section 251 (1) of the 1999 Constitution of Federal Republic of Nigeria has distinctly enumerated the items which fall within the jurisdictional competence of the Federal High Court to determine. Land matters were never mentioned therein. It must be emphasized that it is not every case a Federal Agency is involved in that the Federal High Court has jurisdiction to entertain. By section 39 of the Land Use Act, 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.
To further accentuate the position of the law on the lack of jurisdiction of the Federal High Court to plunge into land matters, 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 area 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. In fact, the purpose which Sections 39, 41 and 42 of the Land Use Act are designed to serve are very clear. While Section 39 excludes Area Courts and Customary Courts from exercising jurisdiction in respect of land the subject of statutory right of occupancy, Section 41 redefines the jurisdiction of the courts referred to therein so as to ensure that courts, such as the Customary Courts in Southern States of this country which had previously been exercising concurrent jurisdiction with the High Court without distinction by classification of land, have their jurisdiction limited as stated therein. In other words, while the State High Court has exclusive jurisdiction over lands in Urban Areas by virtue of Section 39(1) of the Land Use Act, that Court shares jurisdiction with only the Area Courts and Customary Courts or other courts of equivalent jurisdiction by virtue of both the jurisdiction of the State High Court under section 272 of the 1999 Constitution and the jurisdiction conferred on the Area courts and Customary Courts by virtue of Section 41 of the Act. As there is nothing in these Sections 39, 41 and 42 of the Land Use Act that conferred any jurisdiction on the Federal High Court to entertain land causes or matters. I entirely agree with the court below that the Federal High Court has no jurisdiction to hear and determine any dispute on declaration of title to land.”
The foregoing exposition of the law on the jurisdiction of Courts in land matters showed clearly that the Federal High Court is not one of the Courts vested with jurisdiction by sections 39 and 41 of the Land Use Act, to entertain land matters. It is on this premise and for the reasons given in the lead judgment that I, too, allow this appeal and set aside the judgment of the lower Court.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Abdu Aboki, J.C.A. His Lordship has considered and resolved the issue in contention in this appeal. I agree with the reasoning and conclusions contained therein.
By a writ of summons dated the 26th of March, 2007, the Appellant, as plaintiff, commenced an action against the Respondents, as defendants, in Suit No.KDH/Z/73/2007 claiming for:
i. A declaration that the Plaintiff is the rightful owner of the parcel of land measuring 0.097 hectares covered by State Certificate of Occupancy Number KD.5251 lying and situate along Grace Lands Road at Ungwar Yusi Hanwa Extension Zaria in Sabon Gari Local Government Area of Kaduna State, the corners of which are marked on the ground by property Beacons Numbers ZRA.6448; ZRA6449; ZRA6446 and ZRA6447 as shown on the TPO Sheet Number 102.S.W and equally bounded as follows: East – Pastor Adesina’s property; West – Professor Olukosi’s residence; South – Graceland Road; North – Aviation concrete fence.
ii. A declaration that the right of occupancy Number KDG.1865 covering the piece of land measuring 232.70 hectares issued by the Ministry of Lands, Survey and Country Planning Kaduna to the Defendants on the 31st of January, 2006 in so far as it includes the plaintiffs piece of land described in paragraph (1) above is null and void same having been issued on the face of existing customary and Statutory title and in violation of the conditions for the grant of right of occupancy as stipulated by law.
iii. An order setting aside the approval for extension of right of occupancy granted the 1st Defendant on 31st of January, 2006 by the Ministry of Lands, Survey and Country Planning Kaduna over a parcel of land measuring 232.70 hectares and covered by right of occupancy Number KDG.1865 as same encroaches on the plaintiff’s land and was applied for mala fide.
iv. An order of perpetual injunction restraining the defendants, their agents, privies, servants or any person(s) howsoever called from tampering in any manner with the plaintiffs land afore described or taking any step(s) that will deny the plaintiff his right of ownership of the land.
The Respondents entered a conditional appearance and filed a notice of preliminary objection challenging the jurisdiction of the High Court of Kaduna State to hear and determine the claims of the Appellant on the ground that the first Respondent is a Federal Government agency and in view of the injunctive relief being sought against the Respondents. In a Ruling delivered on the 30th of October, 2008, the lower Court upheld the preliminary objection and it declined jurisdiction in the matter and struck out the suit. This appeal is against the Ruling.
The sole issue for determination in this appeal is whether the lower Court was right in declining jurisdiction in this matter on the ground that the first Defendant is an agency of the Federal Government. It is settled that it is the case of the plaintiff as endorsed on the writ of summons and elaborated in the statement of claim or any other originating process that determines the jurisdiction of the court. Elelu-Habeeb v. Attorney General, Federation supra, Merill Guaranty Savings & Loans Ltd. v. WorldGate Building Society Ltd. (2013) l NWLR (Pt. 1336) 581 and Uwazurike v. Nwachukwu (2013) 3 NWLR (Pt.1342) 503. The court does not look at the faces, designations or duties of the parties in a suit to determine whether or not it has jurisdiction – Dagazau v. Bokir International Company Ltd. (2011) 14 NWLR (Pt. 1267) 261.
It is obvious that this is a land matter and the parcel of land in issue is covered by certificate of occupancy issued by the Ministry of Lands, Survey and Country Planning, Kaduna State.
The issue of which court possesses jurisdiction over land litigations has been very well settled by the courts based upon the interpretation of the provisions of Section 39 of the Land Use Act and Section 272 of the 1999 Constitution of the Federal Republic of Nigeria. The present position of the law is that the High Court of the State has exclusive jurisdiction over all parcels of land located within the areas designated as urban areas and subject to a statutory right of occupancy granted by the State Government while it shares concurrent jurisdiction with the customary courts, the area courts and other courts of such equivalent jurisdiction in respect of all parcels of land located in the areas designated as rural or non-urban areas and subject to a customary right of occupancy grunted by a Local Government – see for example, Aseimo v. Abraham (1994) 8 NWLR (Pt. 361) 191, Oyeniran v. Egbetola (1997) 5 NWLR (pt.504) 122, Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116, Oyedeji v. Akinyele (2002) 3 NWLR (Pt. 755) 586, Sanni v. Ademiluyi (2003) 3 NWLR (Pt. 807) 381, Erhunmwunse v. Ehanire (2003) 13 NWLR (Pt.837) 353, Akanbi v. Salawu (2003) 13 NWLR (Pt. 838) 637, Okonkwo v. Okonkwo (2004) 5 NWLR (Pt. 865) 87, Attorney General, Rivers State v. Ohochukwu (2004) 6 NWLR (Pt.869) 340, Ezukwu v. Ukachukwu (2004) 17 NWLR (Pt.902) 227, The Minister of Works & Housing v. Shittu (2007) 16 NWLR (Pt.1060) 351, Odetayo v. Bamidele (2007) 17 NWLR (Pt. 1062) 77, Madu v. Mbakwe (2008) 10 NWLR (Pt. 1095) 293, Idajakpa v. Ajigbereno (2009) 6 NWLR (Pt. 1136) 151, Onwuka v. Ononuju (2009) 11 NWLR (Pt. 1151) 174, Adetayo v. Ademola (2010) 15 NWLR (Pt. 1215) 169, Dagazau v. Bokir International Company Ltd. (2011) 14 NWLR (Pt.1267) 261.
The Federal High Court has no jurisdiction over land matters, irrespective of the parties to the action, and it cannot grant a declaration of tide to land – Achebe v. Nwosu (2003) 7 NWLR (Pt. 818) 103, Omotesho v. Abdullahi (2008) 2 NWLR (Pt.1072) 526, Federal Mortgage Bank of Nigeria Ltd v. Lagos State Government (2010) 5 NWLR (Pt. 1188) 570, Nigerian Institute of Medical Research v. National Union of Road Transport Workers (2010) 12 NWLR (Pt. 1208) 328. The Federal High Court cannot even adjudicate over a claim for compensation for land – Nkuma v. Odili (2006) 6 NWLR (Pt.977) 587. It also cannot adjudicate over an action in trespass to landed property – Adetona v. Zenith International Bank Plc (2009) 3 NWLR (Pt.1129) 577, Oladipo v. Nigeria Customs Service Board (2009) 12 NWLR (Pt.1156) 563.
The comment of the Supreme Court in NEPA v. Edegbero (2002 18 NWLR (Pt.798) 79 that only the Federal High Court has jurisdiction in all matters where an agency of the Federal Government is involved relied upon by both the Counsel to the Respondent and the lower Court was clearly an obiter dictum and this fact has been demonstrated by the several subsequent decisions of both the Supreme Court and of the Court of Appeal that did not follow the statement. It must be conceded that there are a few errant case law authorities where it was held that it is the Federal High Court that has jurisdiction in land matters where the Federal Government or any of its agencies is a party. Examples of such case law authorities are the decisions of the Court of Appeal in Otiki v. Bajehson (2006) All FWLR (Pt.307) 1054, which was also relied upon and followed by the lower Court in the instant case, and in Federal Minister of Housing and Urban Development v. Bello (2009) 12 NWLR (Pt.1155) 345. The position of the law is that such decisions which go against an avalanche of other case law authorities do not constitute just decisions nor do they amount to good law. This point was made by Oputa, JSC in Onuoha v. State (1989) 1 NSCC 411, at 421, thus:
“… ‘a just decision of the case’ will be a decision in accord with the many, many authorities and previous decisions of our courts as well as English decisions which our courts have followed and adopted. A decision that throws all our existing authorities to the wind will no doubt be an alarming decision, but hardly a just decision.”
With respect, it was foolhardy for the lower Court to have followed and relied on the decision of the Court of Appeal in Otiki v. Bajehson supra when there were many other authorities of the Supreme Court and of the Court of Appeal to the contrary. It is incumbent on, and essential for, all the players in the administration of justice system to take pains to acquaint themselves with developments in the law. It will save the system from wasting scarce judicial time on matters such as this present one that merely restates established positions of the law and it will enable it concentrate on matters that edify and bring about new developments in the law.
The lower Court was clearly in error when it declined jurisdiction in this matter. I too find merit in this appeal and set aside the decision of the High Court of Kaduna State in Suit No.KDH/Z/73/2007 delivered on the 30th of October, 2008. I abide the consequential orders in the lead judgment.