IKPA v. UPPER AREA COURT, OTUKPO & ANOR
(2020)LCN/14285(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Wednesday, June 17, 2020
CA/MK/32/2012
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Between
HON. SUNDAY IKPA APPELANT(S)
And
1. UPPER AREA COURT, OTUKPO 2. PRINCE SAM OBANDE RESPONDENT(S)
RATIO
WHETHER OR NOT GROUNDS OF APPEAL MUST RELATE TO THE RATIO DECIDENDI OF THE COURTROOM FROM WHICH THE APPEAL AROSE
Going by the State of our Law, it is now trite and needs no citing of authorities that Grounds of Appeal must relate to the rationes decidendi of the Court from which the Appeal arose which is the essence of Ground (b) upon which the 2nd Respondent’s Preliminary Objection is predicated. See the cases ofF.B.N. Plc vs. A-G, Federation (2018) 6 NWLR (pt.1350) 225; Nwankwo vs. E.D.C.S.U.A. (2007) 5 NWLR (Pt.1027) 377; NDIC vs. Okem Ent. Ltd. (2004) 10 NWLR (Pt.880) 107; and A.I. Ltd. vs. N.N.P.C. (2005) 1 NWLR (Pt.973) 563; PER AGUBE, J.C.A.
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the Benue State High Court of Justice, Holden at Otukpo in Suit No.OHC/80M/2011 delivered by M.A. Abounu, J., and dismissing the Appellant’s Originating Motion On Notice dated and filed on 15th March, 2011. In the said Motion the Applicant/Appellant sought for the following reliefs:-
“(1) AN ORDER of prohibition prohibiting the Upper Area Court, Otukpo from hearing and/or determining Suit No.CV/17/2011: Prince Sam Obande vs. Hon. Sunday Ikpa pending before it.
(2) SUCH ORDER or further Order(s) that the Honourable Court may deem fit in the circumstance of the case.”
The Originating Motion was supported by a Statement of facts pursuant to Order 40 Rule 6(1) of the Benue State High Court (Civil Procedure) Rules, 2007, a Verifying Affidavit of Six (6) paragraphs deposed to by the Applicant. Annexed to the Verifying Affidavit Supporting the Motion were 3 (Three) Documents marked Exhibits “1”, “2” and 3. Exhibit 1 is the Form 1 (Civil Summons) issued from the Upper Area Court, Otukpo dated and
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issued on 25th January, 2011; Exhibit “2 is the Idoma Local Administration Certificate of Occupancy issued to the Applicant/Appellant Sunday Ikpa (Now Honourable Sunday Ikpa) of Asa Otukpo Town which Certificate was issued on the 15th of April, 1977 to the said Applicant/Appellant; while Exhibit 3 is an Enrolled Order of the Upper Area Court, Otukpo made on 31st January, 2011.
The Originating Motion was also accompanied by a Written Address in Support. See pages 27 to 40 of the Record of Appeal.
Upon being served with the Applicant’s Originating processes and the attached Exhibits, the 2nd Respondent filed his Counter Affidavit of Five (5) paragraphs deposed to by Ikwebe Michael Onwe, the Litigation Secretary of the Chambers of P.A. Omengala & Co. Accompanying the Counter-Affidavit was the Written Address in Support.
The following were the Grounds upon which the Motion was predicated and the Relieves sought by the Applicant (now Appellant) in the lower Court:-
1. That the Upper Area Court, Otukpo, the 1st Respondent lacks competence and/or jurisdiction to hear and determine Suit No.CV/17/2011: Prince Sam Obande vs. Hon.
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Sunday Ikpa.
2. That the land subject matter of dispute situate at GRA Otukpo, Benue State. An area statutorily declared an Urban Area in Benue State pursuant to the Land Use Act, 1978.
3. That the land subject matter of dispute before the Upper Area Court, Otukpo is covered by a deemed Certificate of Occupancy issued by the Executive Governor of Benue State, Nigeria.
The learned Lower Court Judge held at pages 65 to 66 of the Record of Appeal thus:-
“In the instant case, the jurisdiction of the Area Court is expressly prescribed in Section 19(3) of the Area Court Law which cannot be taken away in the absence of any clear words in the statute.
The Land Use Designation of Urban Area Orders be it 1978, 1981 or 1996 did not expressly oust the jurisdiction of the Upper Area Court as it relates to land situate within its jurisdiction.
Having said that, I will no longer consider the Land Use (Designation of Urban Area Amendment) Order 1981 as the 1996 Order recognizes all the areas contained in the Schedule to the 1978 Order and even moreso, apart from the areas that form part of Kogi State now.
It is for the above reasons that I
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find no merit in this Application and it is accordingly dismissed.
Dissatisfied with the decision of the High Court, the Appellant appealed to this Court by Notice of Appeal dated 24th October, 2011 and filed the same day a sole Ground thus:
GROUND OF APPEAL:
MISDIRECTION IN LAW:
The trial Court misdirected itself in law and thereby occasioned a miscarriage of justice when it held thus:
Having listened to the arguments and submissions of the learned Counsel for the Applicant and the 2nd Respondent and upon perusal of all the documents filed by the parties and Exhibits annexed to the documents as well as the authorities relied upon, I am inclined to agree with P.A. Omengala, Esq. Counsel to the 2nd Respondent in that both laws i.e. THE LAND USE DESIGNATION OF URBAN AREA ORDER, 1978 and THE LAND USE DESIGNATION OF URBAN AREA ORDER, 1996 are laws made by Benue State Government in the exercise of power conferred by Section 3 of the Land Use Act, 1978. The only difference lies in the fact that the 1996 order is more elaborate and in particular the later recognizes Sections 3, 4, 5 and 6, the Local Government which may have issued
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title document prior to the commencement of the Order whereas the former did not. In summary, I do not agree with the submission of the learned Counsel for the Applicant that the Order repealed the previous one.
I am also of the view that since the parties are relying on the title documents issued by the Local Government and by Section 5 of the 1996 Order reproduced above, the failure of the Applicant to produce any document defining the physical limit of the designated Otukpo Urban Area, the Upper Area Court, Otukpo will have jurisdiction to entertain and determine Suit No.CV/17/2011, hence I refuse to make an Order prohibiting the Upper Area Court Suit No.CV/17/2011 which is pending before it.
Moreso, that by Section 19(3) of the Area Court Law, an Area Court is empowered to try and determine land causes subject matter of the dispute situate in the area where such Area Court have jurisdiction.
In the instant case, the land is situate at Otukpo within the jurisdiction of the Upper Area Court. See the case of GAFAR VS. GOVERNMENT OF KWARA STATE (2007) 146 LRCN 744 AT 764 EE OO; where the Supreme Court held thus, it is settled law that Courts
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are creatures of statute based on the Constitution with their jurisdiction stated or prescribed therein. That, being the case, it is obvious that no Court assumes jurisdiction except it is statutorily prescribed, as jurisdiction cannot be complied nor can it be conferred by agreement of the parties.
In the instant case, the jurisdiction of the Area Court is expressly prescribed in Section 19(3) of the Area Court Law which cannot be taken away in the absence of any clear words in the statute.
The Land Use Designation of Urban Area Orders be it 1978, 1981 or 1996 did not expressly oust the jurisdiction of the Upper Area Court as it relates to land situate within its jurisdiction.
Having said that, I will no longer consider the Land Use (Designation of Urban Area Amendment) Order 1981 as the 1996 Order recognizes all the areas contained in the Schedule to the 1978 Order and even moreso, apart from the areas that form part of Kogi State now. It is for the above reasons that I find no merit in this Application and it is accordingly dismissed.
Upon the transmission of the Record of Appeal and entry of the Appeal on the 21st day of March,
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2012, Briefs of Argument were filed and exchanged by the respective learned Counsel to the Parties. In the Appellants Brief settled by A.A. Sule, Esq. dated and filed on the 8th day of January, 2013, One (1) Issue was distilled for determination as reproduced hereunder:-
Whether the Lower Court did not misdirect itself in law and thereby accessioned a miscarriage of justice in its Ruling/Judgment in the Suit now on Appeal as relates to its findings that Otukpo is not an Urban Area as to disentitle an Area Court adjudicating over land situated thereat?
The learned Counsel to the 2nd Respondent, P.A. Omengala, Esq. who settled the 2nd Respondent Brief Argument adopted the Sole Issue formulated by the learned Counsel to the Appellant to wit:-
Whether the Lower Court did not misdirect itself in law and thereby occasioned a miscarriage of justice in its Ruling/Judgment in the Suit now on Appeal as it relates to its finding that Otukpo is not an Urban Area as to disentitle an Area Court adjudicating over land situated thereat?
Briefly, the facts of the case leading to the Appeal are that the Plaintiff/2nd Respondent took out a Writ of
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Summon at the Upper Area Court, Otukpo (1st Respondent) against the Defendant/Appellant on the 25th day of January, 2011 for A Declaration of title to a piece/parcel of land lying and situate at G.R.A. Otukpo, Benue State covered by Otukpo Local Government Certificate of Occupancy No. BN 01337 dated 27th October, 1997 and known as Plot No. 326B/L Otukpo and perpetual injunction.
The learned Counsel to the Plaintiff/2nd Respondent brought the Motion on Notice No.4M/2011 dated and filed on 25th January, 2011 praying for the following Orders:-
“(a) AN ORDER of Interlocutory Injunction restraining the Defendant by himself, his agents, servants, privies and all others acting for or on his behalf from further acts of trespass or waste on all that piece/parcel of land lying, situate and being at the GRA, Otukpo and more particularly known as Plot No. 326B/L and covered by Otukpo Local Government Certificate of Occupancy No.01337 dated the 27th day of October, 1997, and which land is sufficiently known to the parties hereto, pending the hearing and determination of the substantive Suit.
(b) AND for such Order or Further Order(s).
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The Application was Supported by the Five (5) paragraphs Affidavit deposed by Ikwe Michael Onwe, the Litigation Secretary in the Chambers of P.A. Omengala & Co. of No.5 Asa Road, Opposite the Court Premises, Otukpo, Benue State. Paragraphs 1 to 4(i)-(viii) of the said Verifying Affidavit read as follows:-
1. That by virtue of my office and position, I am conversant with the facts herein deposed to.
2. That I have the authority and consent of both the Applicant and his Counsel to depose to this Affidavit.
3. That in the substantive Claim the Plaintiff herein is claiming title to a piece/parcel of land lying, situate and being at the GRA, Otukpo and more particularly known as Plot No.326B/L and covered by Otukpo Local Government Certificate of Occupancy No.01337 dated the 27th day of October, 1997.
4. That I am informed by the Plaintiff in the Chambers of P.A. Omengala & Co. at No.5 Asa Road, Opposite the Court Premises Otukpo, Benue State, on the 24th day of January, 2011 at about 10:00am and I verily believe him as follows:-
(i) That the land the subject of dispute is sufficiently known to the parties to this case.
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(ii) That sometimes about the year 2004, the Defendant herein trespassed unto the land and started laying claim to same whereupon I caused a complain to be made to the police concerning the trespass and a formal letter of protest written to the Defendant and copied the Otukpo Local Government Council.
(iii) That upon the intervention of the police and the officials of the Local Government Council, the Defendant left the land.
(iv) That since then the land has remained firmly in his possession and control until sometimes recently when I again noticed the presence of some persons working on the land and when challenged they claimed that there were on the land through the Defendant.
(v) That the land was originally granted to One MR. EDIGA ODEH of Upu, Otukpo by the then Otukpo Local Government Authority vide a Certificate of Occupancy No. 326B/L dated the 21st day of January, 1983. A copy of the said Certificate of Occupancy and site plan are annexed hereto and marked as Exhibit A.
(vi) That the said MR. EDIGA ODEH sold and conveyed the said land to him vide an Agreement dated the 19th day of November, 1997. A copy of the said Agreement is
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attached as Exhibit B.
(vii) That upon the sale of the land to him he took possession of same and also applied to the Otukpo Local Government Council for the issuance of a new Certificate of Occupancy in his name, which application was granted a new Certificate of Occupancy No.01337 dated the 27th day of October, 1997 was issued in his name in replacement of Old Certificate of Occupancy. A copy of the said Certificate of Occupancy is annexed hereto and marked as Exhibit C.
(viii) That he is the lawful and legitimate owner of the land since same has not been revoked by the Otukpo Local Government Council that issued it.
When the Application came up for hearing before the trial Court on 31st January, 2011, the Claim of the Plaintiff/2nd Respondent was read in the Court and the trial Court Judge ruled as follows:-
Court:- Having gone through the affidavit in support of the motion Ex-parte and having heard P.A. Omengala, Esq. of Counsel to the Applicant. We find merit in the Application. The prayers sought are accordingly granted.
1. The Defendant/Respondent shall be served the originating processes by pasting same on the wall
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of his residence at Asa Prison, Otukpo Poor by delivering same to any adult inmate of his house at Asa Otukpo.
2. An interim injunction is hereby granted restraining the Respondent pending the hearing of the Motion on Notice.
Omengala, Esq:- We request for a date for hearing of the Motion on Notice. I suggest 15/2/2011.
Court:- 15/2/2011 for hearing of the Motion on Notice.
ARGUMENT OF LEARNED COUNSEL TO THE APPELLANT ON THE SOLE ISSUE:
In his argument, learned Counsel submitted on the Sole Issue formulated that by virtue of BENUE STATE LEGAL NOTICE NO.6 TITLED THE LAND USE DECREE, 1978 (NO.6 OF 1978) THE LAND USE DESIGNATION OF URBAN AREA ORDER, 1978 of 24th day of November, 1978 made pursuant to Section 3 of the Land Use Act, 1978; Otukpo along other towns were designated Urban Areas in Benue State.
The learned Counsel further contended that the LAND USE ACT (VALIDATION OF CERTAIN LAWS ETC) ACT, 1979, CAP. L6, LAWS OF THE FEDERATION OF NIGERIA, 2004; THE BENUE STATE LEGAL NOTICES NO.6 OF 1978 TITLED THE LAND USE DECREE, 1978 (NO.6 OF 1978) and THE LAND USE DESIGNATION OF URBAN AREA ORDER, 1978 of 24th day of November,
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1978 were made pursuant to Section 3 of the Land Use Act, 1978 where Otukpo was designated Urban Area as part and parcel of Land Use Act, 1978 to have the same effect, tenor and intendment as regulations made pursuant to Section 46 of the Land Use Act, 1978. Reliance was placed on the case of FRANCIS ADOLE VS. OKO OKAI (UNREPORTED) APPEAL NO.OHC/35A/1981 delivered on 25th June, 1981 by Katsina-Alu and Idoko, JJ, (as they then were) (of Blessed Memory) the excerpts of the latter’s dictum which was copiously quoted by the learned Counsel to the Appellant at pages 3 to 11 paragraph 5.03 of the Appellant’s Brief.
The learned Counsel to the Appellant accordingly submitted that the Land Use Act, 1978 and the Land Use Designation of Urban Area Order, 1978 having been entrenched in the 1979 Constitution, now 1999 Constitution of the Federal Republic of Nigeria (as amended), cannot be repealed or amended by any State Legislation as the amendment made by the State legislation will be null and void. He cited Section 315(5)(d) of the Constitution of the Federal Republic of Nigeria, 1999 to buttress his submission that the amendment to the Land Use Act
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can only be made in accordance with Section 9(2) of the Constitution (supra).
Consequently, the learned Counsel submitted that reliance on Section 19(3) of the Area Court Law; the Land Use (Designation of Urban Area) Order, 1981 and Land Use Designation of Urban Area Order, 1996 are of no assistance to the determination of the question before the trial Court and therefore urged the Honourable Court to so hold.
The learned Counsel recalled that by the Constitution of the Federal Republic of Nigeria, 1999 (as amended), First Schedule, Part 1 listed the States of the Federation and under Benue State, Otukpo is mentioned as a Local Government and in the same manner, the Benue State Local Government Law, 2007, First Schedule (Section 3(2)) Otukpo is mentioned as Local Government with the Headquarters at Otukpo; therefore, learned Counsel to the Appellant submitted that the above facts coupled with the Certificates of Occupancies issued in respect of the Plot of land (Pages 17-24 of the Records referred) are the incontestable evidence of the fact of the situation of plot of land as being within Otukpo Urban Area, a fact that the lower Court ought to take
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ordinary judicial notice without any proof.
The learned Counsel to the Appellant finally submitted that Section 39(1) of the Land Use Act, 1978 conferred exclusive jurisdiction on a State High Court to hear and determine Suits in respect of land lying and situate in an Urban Area as in this case and not an Area Court. We were therefore urged to allow the Appeal and set aside the Ruling of the Lower Court.
ARGUMENT OF THE LEARNED COUNSEL TO 2ND RESPONDENT ON PRELIMINARY OBJECTION:
In reaction to the argument of the Sole Issue distilled by the learned Counsel to the Appellant as set out above, the learned Counsel to the Respondent, gave Notice of Preliminary Objection in paragraph 4.00 page 5 of the 2nd Respondent’s Brief of Argument on the competence of the Sole Issue formulated for the determination of this Appeal therefrom.
In paragraph 4.00 of the same page, the learned Counsel to the Respondent set down the Grounds upon which the Preliminary Objection is predicated as follows:-
(a) The issue for determination has not arisen from the ground of Appeal filed in this Appeal or the Judgment of the Lower Court appealed against.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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(b) The issue for determination must arise out of the ground of Appeal and which must of necessity be predicated on the Judgment of the Lower Court appealed against.
(c) An issue for determination which is not predicated on the ground of Appeal is incompetent and must be discountenanced.
In his argument on the Preliminary Objection, the learned Counsel submitted that a curious look at the Sole Issue distilled by in the Appellant’s Brief of Argument show that the Issue was not tied to the Sole Ground of Appeal and for this reason the Issue is not competent and should be discountenanced and struck out. He further submitted that the Sole Ground of Appeal filed in this Appeal and upon which the Sole Issue is predicated is at pages 67-71 of the Record of Appeal and that the said ground is a reproduction of the Judgment of the Lower Court, the subject of this Appeal, therefore, there is nowhere in the said Judgment of the lower Court that the Sole Ground complained that the finding(s) of the trial Court are in agreement that Otukpo is not an Urban Area as to disentitle an Area Court adjudicating over land situate thereat.
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The learned Counsel submitted further that the Judgment of the Lower Court and the Sole Ground of Appeal filed by the learned Counsel to the Appeal in this Appeal is not predicated on any finding(s) made by the Lower Court that Otukpo is not an Urban Area to sustain the Sole Issue formulated in this Appeal, the reason of the Judgment of the trial Court being the failure of the Appellant to produce any document defining the physical limit of the designated Otukpo Urban Area, and not on any finding(s) that Otukpo is not an Urban Area. For the above submission, he cited and relied on EMMANUEL VS. DEBAYO-DOHERTY (2009) VOL.4 WRN 149 AT 163 LINES 15-30 PER NWODO, JCA AND INDUSTRIAL TRAINING FUND VS. NIGERIAN RAILWAY CORPORATION (2006) 11 WRN 74 AT 100.
Finally, the learned Counsel to the 2nd Respondent submitted that since the Sole Issue formulated for determination from the Sole Ground of Appeal is incompetent, the Appeal is rendered incompetent and ought to be struck out. We were therefore urged to uphold the Preliminary Objection and strike out the Appeal as being incompetent.
ARGUMENT OF LEARNED COUNSEL TO THE 2ND RESPONDENT ON THE SOLE ISSUE:
On his part, learned
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Counsel to the 2nd Respondent who adopted the Sole Issue formulated by the Appellant’s Counsel, in his reaction to the contention of the learned Counsel to the Appellant that Otukpo is an Urban Area within the context of Section 3 of the Land Use Act, 1978 and that the Area Court has no jurisdiction over land comprised therein submitted that it was upon this belief or supposition that the Appellant filed the Application for an Order of Prohibition in the lower Court resulting in the present Appeal. The learned Counsel to the 2nd Respondent’s submitted based on the above contention of learned Counsel to the Appellant that the current Law relating to Urban Areas Order in Benue State is THE LAND DESIGNATION OF URBAN AREAS ORDER, 1996. In spite of the concession at page 9 paragraph 6.01 of the 2nd Respondent Brief that Otukpo is listed as No.14 in the List of Designated Urban Areas in the State, the learned Counsel yet insisted that the said Order is still inchoate and thus legally unenforceable to deprive Area Courts of jurisdiction over land comprised in Otukpo. For this assertion, he placed reliance on Section 5 of The Land (Designation of Urban Areas) Order, 1996
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quoted at page 9 paragraph 6.01 of the 2nd Respondent’s Brief.
It was his further submission that the learned trial Judge was right in arriving at his decision, taking into account the clear provisions of Section 5 of The Land (Designation of Urban Areas) Order, 1996 at page 67 of the Records of Proceeding more particularly paragraph 2 thereof as quoted by him at page 9 paragraph 6.02 of the 2nd Respondent’s Brief of Argument.
Learned Counsel to the 2nd Respondent also submitted that there is no clear definition of the physical limits of the area covered by the said Order, therefore it is erroneous to assert that the location of the land in dispute before the trial Upper Area Court falls within the Designated Urban Area. He opined that in the absence of the definition contemplated by Section 5 of the Order, the same cannot be implemented and the said Order is therefore in abeyance and inchoate. For the above submission he placed reliance on the decision of the Benue State Customary Court of Appeal in APPEAL NO. CCAM/11A/2004: IKYADO IJOHO VS. NYINOF IJOHO (UNREPORTED) delivered on 29th November, 2006 concerning THE
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LAND USE (DESIGNATION OF URBAN AREAS) ORDER, 1996 as quoted at page 10 paragraph 6.03 of the 2nd Respondent’s Brief of Argument. He also cited the case of Nze Clement Iloanufe Egwunewu vs. Ambrose N. Ejeagwu (2007) 6 NWLR (Pt.1031) 431 at 452, paragraphs B-D, quoted at page 11, paragraph 6.04 of the 2nd Respondents Brief of Argument to buttress his submission.
The learned Counsel contended that the mere fact that Otukpo is listed as an Urban Area does not Ipso facto deprive the Area Court of its jurisdiction over land in Otukpo in the absence of compliance with Section 5 of THE LAND (DESIGNATION OF URBAN AREAS) ORDER, 1996 or 1978 relied upon by the Appellant adding that the learned trial Judge of the lower Court was right in arriving at the conclusion. We were therefore urged to dismiss the Appeal on the Sole Issue formulated by the Appellant for being unmeritorious and finally prayed this Honourable Court to dismiss the Appeal as lacking merit on the following reasons:-
1. That by Section 5 of the Land Use (Designation of Urban Areas) Order, 1996, the physical limits of the area designated as Urban Area must be carried out by the
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Department in Charge of Land matters before the Order can become operational.
2. That there is no such definition with respect to Otukpo and none was produced by the Appellant to show that the area of the land the subject of dispute situate falls within the Designated Urban Area.
3. That in the absence of such definition, it will be speculative for the Court to hold that the land is situated in the Designated Urban Area to deprive Area Courts of its jurisdiction.
DETERMINATION OF THE PRELIMINARY OBJECTION:
Before delving into the resolution of the substantive/Sole Issue distilled for determination, it is apt at this juncture to determine the Preliminary Objection raised by the Learned Counsel to the 2nd Respondent since the determination thereof in the Respondent’s favour, inevitably renders the Appellant’s Sole Ground of Appeal incompetent and liable to be struck out. Let me also re-state the position of the law on the mode of raising Preliminary Objections as have been laid down by the Supreme Court in a plethora of cases which have been followed by this Court, that where an objection is against the hearing of the Appeal (in
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other words that the entire Appeal is incompetent), a Notice of Preliminary Objection as filed by the learned Counsel to the 2nd Respondent herein would have been appropriate. Where however, the objection is against the competence of the Grounds of Appeal and the Issues formulated therefrom as in this case, then the appropriate mode would have been by way of a Motion on Notice. See Dauda vs. F.R.N. (2018) 10 NWLR (Pt.1626) 169; Adejumo vs. Olawaiye (2014) 12 NWLR (Pt.1421) 252 and the very recent case of N.C.C. vs. Motophone Ltd. (2019) 14 NWLR (1691) 1 at 24-25, paragraphs H-B.
In the last case above cited, Abba Aji, JSC who delivered the Lead Judgment of the Apex Court was confronted with what the learned Counsel to the 1st Respondent in that case raised as Preliminary Points to the competence of Grounds 1, 8 and 9 of Issue 1 and Grounds 5 and 6 of Issue 3 by reason that the Grounds raised Issues of mixed law and facts without the leave of the Court below first sought and obtained and the learned Counsel to the Appellant in his Reply Brief on the authorities of KLM Royal Dutch Airlines vs. Jamlat Aloma (2017) LPELR-42588 (SC); and Odunukwe vs. Ofomata
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(2010) 18 NWLR (Pt.1225) at 423 as well as Okorocha vs. PDP (2014) LPELR-22057 (SC); challenged the competence of the Preliminary Objection and urged the Supreme Court to discountenance the Notice of Preliminary Objection and relying on the dicta of Akaahs, JSC and Rhodes-Vivour, JSC in Adejumo vs. Olawaiye (supra), discountenanced the Preliminary Points or Objection on the Ground that the Respondent’s objection was incapable of completely debilitating and destroying the entire Appeal.
In the instant case, the Appellant has not filed a Reply Brief to urge us to discountenance the Preliminary Objection. In the light of the above, I would have been minded to discountenance the 2nd Respondents Preliminary Objection in limine as being incompetent but taking a cue from my Noble Lord Abba Aji, JSC in the N.C.C. vs. Motophone Ltd. (supra) case at page 25 paragraphs E-F; I shall in the interest of justice consider the Preliminary Objection for whatever it is worth.
Going by the State of our Law, it is now trite and needs no citing of authorities that Grounds of Appeal must relate to the rationes decidendi of the Court from which the Appeal
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arose which is the essence of Ground (b) upon which the 2nd Respondent’s Preliminary Objection is predicated. See the cases ofF.B.N. Plc vs. A-G, Federation (2018) 6 NWLR (pt.1350) 225; Nwankwo vs. E.D.C.S.U.A. (2007) 5 NWLR (Pt.1027) 377; NDIC vs. Okem Ent. Ltd. (2004) 10 NWLR (Pt.880) 107; and A.I. Ltd. vs. N.N.P.C. (2005) 1 NWLR (Pt.973) 563; where it was variously held that an Appeal is an invitation to a higher Court to review a decision of a Lower Court and that Grounds of Appeal are basically highlights of the error of law or fact or mixed law and fact committed by the Lower Court in the decision taken which is sought to be set aside on Appeal. Accordingly, a Ground of Appeal must be related to the decision of the Lower Court and the reason for such decision and must also contain complaints that the Appellant relies upon to succeed in setting aside the ratio decidendi of the Judgment, and not just the observations and passing remarks (Obiter dicta) of a Judgment in the course of writing his Judgment.
Upon a careful perusal of the Sole Ground of Appeal in the instant case, the learned Counsel to the Appellant’s complaint is that the
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learned trial Judge misdirected himself in law which misdirection occasioned miscarriage of justice when he held as copiously quoted from pages 64 to 65 of the Records/Judgment of the trial Court in dismissing the Applicant/Appellant’s Originating Motion for Prohibition of the Upper Area Court, Otukpo from hearing and determining Suit No.CV/17/2011 Prince Sam Obande vs. Hon. Sunday Ikpa.
In respect of Grounds (a) and (c) of the Preliminary Objection, the Sole Ground of Appeal challenges the rationes decidendi of the Lower Court and the findings predicated on them as can be gleaned from the said pages 64 to 66 of the Records/Judgment. It is pertinent to note that the Applicant/Appellant by the Originating Motion dated the 10th day of February, 2011 and filed on the 11th February, 2011 sought for orders granting leave to the Applicant/Appellant to apply for an Order of Prohibition, an Order of Prohibition prohibiting the Upper Area Court, Otukpo (the 1st Respondent herein) from hearing and/or determining Suit No.CV/17/2011: between the Applicant/Appellant and the 2nd Respondent and for such Order or other Order(s) as the Court below may deem fit to
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make in the circumstances of the case.
From the facts of the case and the Grounds upon which the Application was predicated as can be found in the accompanying Statement in Support and Verifying Affidavit with the attached Exhibits to the Motion Paper; the Applicant/Appellant alleged inter alia:
1. That the Upper Area Court, Otukpo, (the 1st Respondent) lacks the jurisdictional competence to hear and determine Suit No.CV/17/2011 between the Applicant and the 2nd Respondent in the Lower Court.
2. That the land the subject matter of the dispute is situate at GRA Otukpo, Benue State, an area statutorily declared an Urban Area in Benue State pursuant to the Land Use Act of 1978 and that the said subject matter is covered by a Deemed Certificate of Occupancy issued by the Executive Governor of Benue State of Nigeria.
3. The 2nd Respondent’s Claim is as reflected in the Civil Summons, Motion on Notice No. 4M/2011, all exhibited to the Verifying Affidavit to the Motion.
4. That the Applicant’s answer to the claim of the 2nd Respondent against him is that the land subject matter of his claim is covered by the Idoma Local
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Administration Certificate of Occupancy dated 15th August, 1977 registered in Volume 1, page 21 of the Register at the land Registry, Otukpo earlier issued in his favour; which he exhibited to the Verifying Affidavit.
See pages 4 to 7, 15-24, 30 to 37 of the Record of Appeal. See also pages 42 to 55 of the Records.
It would be recalled that the 2nd Respondent through Ikwebe Michael Onwe, the Litigation Secretary in the Chambers of P.A. Omengala & Co. of No.5 Asa Road, Opposite the Court Premises, Otukpo, Benue State (the learned Counsel representing him) deposed to a Five (5) paragraphed Affidavit particularly in paragraph 4(i)-(v) thus:
(i) That the proceedings in the Lower Court was properly commenced and the subject matter of the case within the jurisdiction of that Court.
(ii) That the land the subject of dispute is covered by the Otukpo Local Government Council Certificate of Occupancy and thus within the jurisdiction of the Area Court to hear and determine.
(iii) That the Area of location of the land is generally regarded as GRA, Otukpo but is subject to the management and control of the Local Government and not the Benue
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State Government to deprive the Lower Court of jurisdiction.
(iv) That the Area the land is located is not subject to the urbanization Order of the Benue State as it relates to Otukpo as there is no existing definition of what comprises the Otukpo Urban Area.
(v) That it will be in the interest of justice to refuse the Application and allow the substantive Suit to be heard and determined by the Lower Court.
It is pertinent to note that Written Addresses were filed and exchanged by learned Counsel on both sides on the vexed questions as to whether the Upper Area Court had jurisdiction to determine a land Suit the subject matter which is covered by Certificate of Occupancy deemed to have been issued by the Governor of Benue State by virtue of the Land Use Designation of Urban Area Order, 1978 made pursuant to Section 3 of the Land Use Decree (Act), 1978; and after the adoption of the Written Addresses of the respective learned Counsel, the learned Trial Judge held as contained particularly in pages 65 to 66 of the Records/Judgment and subsequently dismissed the Application, the reasons for this decision which have been copiously quoted in the
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Sole Ground of Appeal from which the Sole Issue for determination is formulated.
Notwithstanding the inelegance of the Issue as formulated or couched by the learned Counsel to the Appellant it arises from the ratio decidendi/Judgment of the Lower Court and indeed the Sole Ground of Appeal since by implication the Judgment purports to confer jurisdiction on the Upper Area Court in respect of land situate at GRA, Otukpo which had long been designated an Urban Area by the 1978 Land Use Designation of Urban Area Order promulgated that year by virtue of Section 3 of the Land Use Act, 1978 and the Land Use Act (Validation of Certain Laws, ETC), Act, Cap. L6, Laws of the Federation of Nigeria, 2004. See also Sections 39, 41, and 46 of the Land Use Act Cap. L5, Laws of the Federation of Nigeria, 2004 as well as Section 315(5)(d), (6) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) (then Section 274(5)(d) of the 1979 Constitution).
In the light of the above, I am not oblivious of the decision of the Supreme Court per Rhodes-Vivour, JSC in Wassah & Ors. vs. Kara & Ors. (2015) Vol.239 LRCN page 38 at 59 AF; that it is long settled
29
that a Ground of Appeal and issues formulated there from, must arise from or relate to the Judgment against which the Appeal is filed and that the Ground of Appeal should be a direct challenge to the decision of the Lower Court and where this is not the case, the Grounds of Appeal should be struck out on the authorities of Kolawole vs. Alberto (1989) 1 NWLR (Pt.98) 382 and Alubankudi vs. A-G, Federation (2002) 17 NWLR (Pt.796) page 360; which I am in total agreement with. However, as I had also held elsewhere, the above cited authorities are not applicable to the facts of this case if a cursory look is taken at the Judgment of the Lower Court. The above authorities notwithstanding, I hold the view that the Sole Issue relates and is distilled from the Sole Ground of Appeal as I had earlier held. I therefore reiterate on the whole that the Preliminary Objection lacks merit and same is accordingly discountenanced and dismissed.
RESOLUTION OF THE SOLE ISSUE:
Upon a careful consideration of the facts of this case and the submissions of learned Counsel for the respective Parties on the Sole Issue for determination, there is no doubt that the crux of
30
this matter is the jurisdiction of the Upper Area Court to entertain the Suit of the 2nd Respondent in respect of the subject matter which is land situated at GRA, Otukpo, Benue State.
In the case of Zakari vs. Nigerian Army (2015) 17 NWLR (Pt.1487) 77 at page 97 paragraphs A-E per Peter-Odili, JSC whose lead Judgment was re-echoed by M.D. Muhammad, JSC at pages 111-112 and C.C. Nweze, JSC at page 112-113 paragraphs H-E their Lordships of the Apex Court, re-emphasized the trite position of the law as was laid down in the celebrated case of Madukolu & Ors. vs. Nkemdilim (1962) 1 All NLR 587; per Bairamian F.J. that before a Court is competent to adjudicate on a matter the following conditions must be met namely:
(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; (underlining mine for emphasis) and
(3) the case comes before the Court initiated by due process of law, and upon
31
fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication.
Their Lordships of the Apex Court also re-stated the fundamental nature of jurisdiction in the adjudicatory process when they posited that jurisdiction is the blood that gives life to the survival of an action in a Court of law and that without jurisdiction, the action being like an animal drained of its blood, ceases to be alive. Bereft of any blood in it and indeed without life, any effort at resuscitating it remains a futile exercise. See Utih vs. Onoyivwe (1991) 7 NWLR (Pt.166) 166; Usman vs. Umaru (1992) 7 NWLR (Pt.254) 377 and the recent Supreme Court cases of Emejuru vs. Abraham (2019) 4 NWLR (Pt.1663) 541 at page 560 paragraphs B-C; page 567 paragraphs A-B, page 568 paragraph B, per Galumje, Peter-Odili, and Sanusi, JJSC.
In the instant case, the resolution of the Sole Issue will turn on the question whether the learned trial Judge erred in law in his holding that the Upper Area Court, Otukpo had the jurisdiction to
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entertain the Suit of the 2nd Respondent by virtue of the fact that Section 5 of the Land Use (Designation of Urban Areas) Order, 1996 which is cited in paragraph 6.01 of the 2nd Respondent’s Brief stipulates that:-
The Department charged with the responsibility for land matters in the State shall define the physical limit of the designated Urban Areas after appropriate survey. Such definition shall be conveyed in writing to the appropriate Local Government;
is inchoate in that the said Department Charged with the responsibility to so do, has not defined the physical limit of Otukpo Urban Area and that the Appellant did not tender any document to that effect.
It is gratifying to note that the learned Counsel to the 2nd Respondent had conceded that Otukpo is No.14 in the List of Designated Urban Areas Order of 1996 in the State. However, his contention is that the purported Order of 1996 is still inchoate and thus legally unenforceable to deprive Area Courts of jurisdiction over land comprised in Otukpo.
The above position was unfortunately endorsed by the learned trial Judge when he held at page 64 lines 23 and 24 to page 65
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lines 1-6 of the Records/Judgment of the Lower Court that:-
“I am also of the view that since the parties i.e. the Applicant and 2nd Respondent are relying on title documents issued by the Local Government and by Section 5 of the 1996 Order reproduced above, the failure of the Applicant to produce any document defining the physical limit of the designated Otukpo Urban Area, the Upper Area Court, will have jurisdiction to entertain and determine Suit No.CV/17/2011 hence I refuse to make an Order prohibiting the Upper Area Court, Otukpo from hearing and/or determining Suit No.CV/17/2011 which is pending before it.
In so holding, the learned Trial Judge had reasoned in agreement with the submissions of P.A. Omengala, Esq. the learned Counsel to the 2nd Respondent herein who had as he appears to have done herein urged that the Applicant/Appellant did not bring any instrument from the Ministry of Lands defining the scope of the Urbanization of Otukpo Urban Designated Area and who cited Egwunewu vs. Ejeagwu (2007) 6 NWLR (Pt.1031) page 431 at 453 paragraphs B-D and Oyeniran vs. Egbetola (1997) 5 SCNJ 94 at 102-103.
His Lordship also upon perusal of
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all the processes filed and their respective documentary Exhibits annexed, further agreed with the learned Counsel to the 2nd Respondent that both THE LAND USE (DESIGNATION OF URBAN AREAS) ORDER, 1978 and that of 1996 are Laws made by the Benue State Government in exercise of the powers conferred by Section 3 of the Land Use Act, 1978; the only difference being in the fact that the 1996 Order is more elaborate and recognizes in Section 3, 4, 5 and 6 the Local Government which may have issued title documents prior to the commencement of the Order, whereas the others did not. See page 64 lines 1-20 of the Records/Judgment.
At page 65 of the Records/Judgment, the learned Trial Judge had also predicated his stance on the jurisdiction of the Upper Area Court to entertain the Suit the subject of this Appeal to Section 19(3) of the Area Court Law which confers the Court with the jurisdiction to try and determine Land Causes the subject matter of dispute situated in an area where the Area Courts have jurisdiction and on the authority of Gafar vs. Government of Kwara State (2007) 146 LRCN 744 at 764 EE-OO (SC); in holding that in the instant case, the
35
jurisdiction of the Area Court expressly prescribed by Section 19(3) of the Area Court Law cannot be taken away in the absence of clear words in the Statute.
Accordingly, he held finally that the Land Use Designation of Urban Areas Order be they of 1978, 1981 or 1996 did not expressly oust the jurisdiction of the Upper Area Court as it relates to land situate within its jurisdiction.
In spite of all the above, the learned Trial Judge asserted and rightly too, that the Land Use Designation of Urban Areas Order whether of 1981 or 1996, recognize all the designated areas that includes Otukpo as contained in the Schedule to the 1978 Order which is the Order upon which the Appellant placed reliance in his Application for the Prohibition of the Upper Area Court, Otukpo from entertaining the 2nd Respondent’s Suit in respect of the subject-matter.
Now, by the provisions of THE LAND USE DECREE (NO.6 OF 1978)”; the Military Administrator of Benue State of Nigeria, Group Captain Bayo Lawal in exercise of the powers conferred on him by Section 3 of the Act (then Land Use Decree, 1978) and the powers enabling him in that behalf promulgated THE
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LAND USE (DESIGNATION OF URBAN AREA) ORDER, 1978 which commencement date was the 24th day of November, 1978. By Section 2 of that Order:-
“2. All the Areas specified in the Schedule to this Order are hereby designated as Urban Areas for purposes of the Land Use Decree, 1978.
SCHEDULE:
(1) Adikpo (2) Aliade (3) Ankpa (4) Ayangba (5) Dekina (6) Eguma (7) Gboko (8) Idah (9) Katsina-Ala (10) Makurdi (11) Oguma (12) Oju (13) Okpoga (14) Otukpo (15) Ugbokolo (16) Vandeikya (17) Zaki-Biam.
The above Order was validated by virtue of the LAND USE ACT (VALIDATION OF CERTAIN LAWS, ETC,) ACT, 1979 No.94, of 28th September, 1979 which is now CAP. L6, LAWS OF THE FEDERATION OF NIGERIA, 2004, is replicated in Section 50 of the Land Use Act, Cap. L5, Laws of the Federation of Nigeria, 2004 and provides thus:-
“50. VALIDITY OF LAWS, ETC:
(1) Notwithstanding anything to the contrary in this Act or any other enactment, all laws and subsidiary legislation made at any time between the commencement of this Act and 30 September, 1979 by an Administrator (or former Governor), the Executive Council, a Commissioner or any other authority or any public
37
officer of a State shall be deemed to have been validly made and shall have effect as if they had been made under or pursuant to the Act and accordingly, shall hereafter continue to have effect according to their tenor and intendment as if they were regulations made under or pursuant to Section 46 of this Act.
(2) For the purposes of subsection (1) of this section:-
(a) All contracts and all executive and judicial acts, including acts pertaining to the establishment, membership and functions of any Land Use and Allocation Committee or of any other authority or to the appointment of any person, shall be deemed to have been validly entered into or done and shall hereafter continue to have effect as provided in the said subsection; and
(b) any instrument or other evidence relating to the allocation of any land, whether or not expressed to have been made under this Act, shall be deemed to have been validly issued or given under or pursuant to this Act and shall continue to have effect according to its tenor and intendment accordingly.
The LAND USE DESIGNATION OF URBAN AREA ORDER, 1978; was validated since 1978 and indeed Section 3 of the Land Use Decree, 1978 (now Land Use Act, 1978, Cap. L5, Laws of the Federation of Nigeria, 2004)
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under which the Order designating Otukpo as an Urban Area, was made by the Military Administrator of Benue State is titled DESIGNATION OF URBAN AREAS provides thus:-
“3. DESIGNATION OF URBAN AREAS:
Subject to such general conditions as may be specified in that behalf by the National Council of States, the Governor may for the purposes of this Act by Order published in the State Gazette designate the parts of the area of the territory of the State constituting land in an Urban Area.
By the combined effect of Sections 1 and 2 of the Land Use Designation of Urban Area Order, made pursuant to Section 3 of the Land Use Act, which Order was validated in 1979 by the Land Use Act (Validation of Certain Laws, etc) Act, of September, 1979, Otukpo had since 1978 become an Urban Area. By the Order of 1978 under which Otukpo became an Urban Area, the subject matter of this Suit now on Appeal which by the Civil Summons and Certificates of Occupancy Exhibited by the 2nd Respondent in his Motion for Interlocutory Injunction filed at the Upper Area Court, and
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those of the Appellant as annexed to his Verifying Affidavit, is Land lying/situate and being at G.R.A., Otukpo, Benue State covered by Otukpo Local Government Certificate of Occupancy No.1337 dated 27th October, 1997 and known as Plot No.32, Otukpo for the 2nd Respondent while that of the Appellant is Certificate of Occupancy granted him by the Idoma Local Administration in respect of land then situate in Asa Otukpo Town.
It is also pertinent to note that the Order designating Otukpo as an Urban Centre, only had two Sections and by Section 2 thereof Otukpo had been delineated an Urban Centre or Area and indeed needed no Section 5 of the purported Order of 1996 to delimit areas to be designated Urban Area after appropriate survey.
Section 46(1) of the Land Use Act, 1978 provides that the National Council of States may make regulations for purposes of carrying this Act into effect and particularly in regard to the subject matter mentioned in subsection (1)(a)-(e) which provides thus:
“46. POWER TO MAKE REGULATIONS:
(1) The National Council of States may make regulations for the purpose of carrying this Act into effect and particularly
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with regard to the following matters:-
(a) The transfer by assignment or otherwise howsoever of any Rights Occupancy, whether statutory or customary, including the conditions applicable to the transfer of such rights to persons who are not Nigerian;
(b) The terms and conditions upon which special contracts may be made under Section 8 of this Act;
(c) The grant of Certificates of Occupancy under Section 9 of this Act;
(d) The grant of temporary Rights of Occupancy;
(e) The method of assessment of compensation for the purposes of Section 29 of this Act.
(2) The Governor may, subject to subsection (1) of this Section, make regulations with regard to the following matters:-
(a) The method of application for any licence or permit and the terms and conditions under which licences may be granted;
(b) The procedure to be observed in revising rents;
(c) The fees to be paid for any matter or thing done under this Act;
(d) The forms to be used for any document or purpose. Without even being told, the Honourable Court below ought to have taken judicial notice that land situate in the GRA, Otukpo, is land in an
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Urban Area which only the High Court of the State has the exclusive jurisdiction to adjudicate upon such subject-matter rather than hide under the provisions of Section 19(3) of the Area Court Law of Benue State and the authority of Gafar vs. Govt. of Kwara State (2007) 146 LRCN 744 at 764 EE OO; where the Supreme Court rightly decided that the law is settled that Courts are creatures of Statutes based on the Constitution with their jurisdictions prescribed therein and that being the case, it is obvious that no Court assumes jurisdiction except it is statutorily prescribed since as has been held in the case of Zakari vs. Nigerian Army (2015) 17 NWLR (Pt.1487) 77 at 106 paragraphs B-C per Ngwuta, JSC:- “Where jurisdiction is not conferred on a Court, it cannot be acquired by or donated to a Court. Where a Court has no jurisdiction, it cannot acquire same by acquiescence of any party nor can a party by failure to exercise a right open to him donate jurisdiction to the Court.
Also as was variously held in PDP vs. Okorocha (2012) 15 NWLR (Pt.205) SC and African Newspapers of Nigeria Ltd. vs. F.R.N. (1985) 2 NWLR (Pt.6) 137; jurisdiction is a matter of
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substantive law and no litigant can confer jurisdiction on a Court where the Constitution or Statute or any provisions of the Common Law has proclaimed that the Court does not have jurisdiction. Not even in the interest of justice can a Court assume jurisdiction and a Court as in the present case cannot give itself jurisdiction by misconstruing a Statute where the learned Trial Judge was misled by the learned Counsel to the 2nd Respondent in misconstruing Section 19(3) of the Area Court Law.
Talking further as far as the jurisdiction of the High Court and Upper Area Court of Benue State are concerned, the provisions of Sections 39 and 41 of the Land Use Act, 1978 are very clear and unambiguous and for the sake of clarity it is necessary to reproduce them hereunder:-
“39. JURISDICTION OF HIGH COURTS:
(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 this paragraph, proceedings include proceedings for a
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declaration of title to a statutory Right of Occupancy.
(b) Proceedings to determine any question as to the persons entitled to compensation payable for improvements on land under this Act.
(2) All laws, including rules of Court, regulating the practice and procedure of the High Court shall apply in respect of proceedings to which this section relates and the laws shall have effect with such modifications as would enable effect to be given to the provisions of this section.
41. JURISDICTION OF AREA COURTS OR CUSTOMARY COURTS, ETC:
An Area Court or Customary Court or other Court of equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings in respect of a Customary Right of Occupancy granted by a Local Government under this Act; and for the purposes of this paragraph proceedings includes proceedings for a declaration of title to a Customary Right of Occupancy and all laws including rules of Court regulating practice and procedure of such Courts shall have effect with such modifications as would enable effect to be given to this section.
These provisions were given judicial imprimatur by Ayoola, JSC in the
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celebrated case of Adisa vs. Oyinwola & Ors. (2000) LPELR-186 (SC); inter alia:-
“The purpose which Sections 39 and 41 of the Act are designed to serve is clear. Section 39 excludes Area Courts and Customary Courts from exercising jurisdiction in respect of land the subject of a statutory right of occupancy. Unlike under the Land Tenure Law system, under the Act statutory right of occupancy can now only be granted by the Governor of a State. Section 41 redefines the jurisdiction of the Courts referred to therein so as to ensure that Courts, such as the Customary Courts in southern parts of the 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. When properly viewed, the two Sections do not limit the jurisdiction of the High Court. Contrary to the submission of Dr. Adedeji-Kayode, the Attorney-General of Osun State, that there is an absurdity in the notion that the Area Court and the Customary Court and the High Court would have concurrent jurisdiction, I fail to see an absurdity in a system which had operated without
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hitch in several parts of the south of the country before the introduction of the Act. It appears to me a sensible thing to do, to preserve the choice of forum which a litigant had always enjoyed to choose his forum in respect of non-urban land which may not necessarily be of little value and disputes about which may raise, sometimes, questions of considerable complexity. It is, in my opinion, expedient to deal with a passage in the judgment of Mohammed JSC which I have quoted earlier in this judgment. There, as I understand it, it was implied that the Act created a new tenure and therefore a new right which justified a mutually exclusive division of jurisdiction between the High Court, on the one hand, and the Courts mentioned in Section 41 of the Act, on the other. That appears to be a proposition in line with the principle in the old case of Barraclough v. Brown (1897) AC 615 in which the question raised was whether an action for a declaration of right would lie on a statute which gave a new right to recover certain expenses in a Court of summary jurisdiction from persons not otherwise liable. Holding such action not to lie, Lord Watson in a passage much
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often quoted said: “The right and the remedy are given uno flatu, and one cannot be dissociated from the other. By these words the legislature has, in my opinion, committed to the summary Court exclusive jurisdiction, not merely to assess the amount of expenses to be repaid to the undertaker, but to determine by whom the amount is payable, and has therefore by plain implication enacted that no other Court has any authority to entertain or decide these matters.
It also has to be noted that by the Land Use (Validation of Certain Laws, Etc) Act and Section 50 of the Land Use Act, 1978; the Land Use Act or any other enactment, all laws and Subsidiary Legislations made at any time between the commencement of the Act and 30th September, 1979 by the Military Administrator (or former Military Governor), the Executive Council, a Commissioner or any other authority or any public officer of a State shall be deemed to have been validly made and shall have effect as if they had been made under or pursuant to the Land Use Act and accordingly, shall hereafter continue to have effect according to their tenor and intendment as if they were regulations made under or
47
pursuant to Section 46 of the Act. Subsection (2) of the Section thereof makes any instrument or other evidence relating to the allocation of any land, whether or not expressed to have been made under this Act, shall be deemed to have been validly issued or given under or pursuant to this Act and shall continue to have effect according to its tenor and intendment accordingly. In the light of these provisions and Order cited earlier as well as the provisions of the parent Act (Land Use Act) the Right of Occupancy or Certificates of Occupancy granted the Appellant in 1977 was deemed granted by the Governor of the State and since the land is situated at the GRA, Otukpo Urban Area, it beggars the question whether the High Court of Benue State, Otukpo Judicial Division has exclusive jurisdiction. On another score, it would appear that the learned trial Judge deliberately shut his eyes to the expository Judgment of the Appellate jurisdiction of the High Court of Benue State where the fathers of the Court per Alu and Idoko, JJ, (as they then were), in that Appeal NO.OHC/35A/81: Francis Adole vs. Oko Okai from Otukpo Grade 1 Area Court which lead Judgment
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was delivered by Idoko, J, on the 25th June, 1981 and reported in the Benue State Law Reports (1981-1982) Volume 2 at pages 49-53. The issues now in contention in this Appeal were extensively considered and determined.
The brief facts of that case were that the Respondent as Plaintiff in the Grade 1 Area Court, Otukpo sought for a declaration of title to Plot No.180 (Zone M) situated at Otukpo Town, the trial Court Judgment was in favour of the Plaintiff/Respondent who instituted the action in that Court. Aggrieved by the Judgment, the Defendant/Appellant appealed on Two (2) Grounds and the Court allowed the Appellant to argue the Second Ground only to wit:-
“2. The Area Court erred in law when it proceeded with the case to its determination when by virtue of Section 39(1)(a) of the Land Use Decree (now Land Use Act) 1979 it had no jurisdiction to try the case as the exclusive original jurisdiction in proceedings in respect of the land in dispute was a subject of a statutory right of occupancy in the Otukpo Urban Area deemed to be granted by the Governor of Benue State is vested in the High Court.
Upon listening to the argument of Eko, Esq.
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for the Appellant and after considering the purports of the Land Use (Designation of Urban Area) Order, 1978, the Land Use Act (Validation of Certain Laws, Etc) Act, 1979, the Benue State Land Use (Designation of Urban Area) (Amendment) Order, 1981 which repealed the 1978 Order was declared null and void. Their Lordships also at page 51 of the Reports further held:
“Perhaps the important aspect to the consideration of this matter in the act is the requirement that all subsidiary legislations or acts relating to allocation of land made by a military administrator or any of the other designated authority or public officer shall hereafter continue to have effect according to their tenor and intendment as if they were regulations or acts made under or pursuant to Section 46 of that Act. One thing stands out clearly from these provisions. It is this that all subsidiary legislations or other collateral acts made under other sections of the Land Use Act and, for our purposes, under Section 3 of the Land Use Act for example, are now lifted to or deemed to be made under or pursuant to Section 46 of the Act. Section 46 contains enabling provisions that vest power
50
of the making of some regulations in the defunct National Council of States. The consequence of lifting all existing regulations and other collateral acts made between 1978 when the Land Use Act came to being and the 30th September, 1979 when the Military Government faced out, to the plain of Section 46 of the Act would appear obviously to move them out of any subsequent act by repeal or such other negative acts which a State Government may resort to. That inference is inescapable if it becomes certain that State Governments are not the successor of the defunct National Council of States in matters under Section 46 of the Land Use Act. This leads us necessarily to consider the effect of Section 274(5) and (6) of the Constitution (now Section 315(5)(d) and (6) of the 1999 Constitution) which stipulates as follows:
(5) Nothing in this Constitution shall invalidate the following enactments, that is to say:-
(d) The Land Use Act; and the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or
51
repealed except in accordance with the provisions of Section 9(2) of this Constitution
(6) Without prejudice to subsection (5) of this Section, the enactments mentioned in the said subsection shall hereafter continue to have effect as Federal enactments and as if they related to matters included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution.
At page 52 lines 4-16 and page 53 of the said Judgment, their Lordships hold as follows:-
“It would appear that since matters on the Land Use Act are deemed to have come within legislation of the Federal Government passed in its Exclusive Legislative List capacity under the Constitution, where executive functions like the making of subsidiary legislation has been conferred on the defunct National Council of States and not on a State Executive functionary the Federal Executive Functionary will exercise such power. If our interpretation is correct then powers under Section 46 of the Land Use Act can only be exercised by the Federal Executive functionary. If that is so and all subsidiary legislations made before 30th September, 1979 have been brought under
52
Section 46 of the Act it does appear that it is only the Federal Executive functionary that can repeal or amend such subsidiary legislations more so, when the Land Use Act Validation Act, a Federal enactment, says that such previous subsidiary legislations shall continue to operate in their like tenor and intendments
Be that as it may, and from what we have said the Benue State Governor has no power to repeal the Designation of Urban Areas Order, 1978 under Section 3 of the Land Use Act because that Order is meant to continue in its like tenor and intendment and is deemed to be made under or pursuant to Section 46 of the Land Use Act. Otukpo, therefore, still remains an Urban Area and all the Certificates of Occupancy issued by the previous Local Government Area deemed to be issued by the Governor and the High Court has exclusive original jurisdiction over matters of such plots in Otukpo. Since the Area Court lacked jurisdiction whatsoever by dint of a statutory enactment to entertain the action, the submission to that effect is well taken and this Appeal is allowed.
The decision of Otukpo Grade 1 Area Court is set aside and declared a
53
nullity. There shall be no cost to and from either party to this Appeal.
A copy of this Judgment each should be sent to the Attorney-General and Solicitor-General of Benue State.
I adopt completely the reasoning of the learned judicial Icons and hold that in line with the above decision and excerpts of the Judgment of their Lordships as copiously quoted by the learned Counsel to the Appellant at pages 3 to 11 of the Appellant’s Brief of Argument, the decision of the Unreported Case No. CCA/11A/2004: IKYADO IJOHO VS. NYINOF IJOHO dated the 29th November, 2006 is of no value as the provisions of Order 5 of the Land Use (Designation of Urban Area) Order, 1996 and the authority of OYENIRAN VS. EGBETOLA (1997) 5 SCNJ 91 AT 103 are not applicable to the facts and circumstances of this case since the Designation of Urban Area Order, 1978 is still applicable by virtue of Sections 46 of the Land Use Act, 1978 and 315(5)(d) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and any purported amendments or repeal without compliance with Section 9(2) of the Constitution (supra) is null and void and of no effect whatsoever
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since the Certificate of Occupancy issued to the Appellant is deemed to be issued by the Governor and by the Order above cited the land in dispute situate at GRA, Otukpo, for all purposes is in an Urban Area and within the exclusive original jurisdiction of the High Court of Benue State of Nigeria and not within the jurisdiction of the Upper Area Court, Otukpo. See Sections 39 and 41 of the Land Use Act, 1978. Besides, OYENIRAN VS. EGBETOLAS case (supra) had long been overruled by ADISA VS. OYINWOLA (supra). In the same vein, the case of NZE CLEMENT I. EGWUNEWU VS. AMBROSE N. EJEAGWU (2007) 6 NWLR (Pt.1031) 431 at 452, paragraphs B-D was cited out of context in that the GRA, Otukpo falls within the Urban Area by virtue of 1978 Order Designating Otukpo as an Urban Area. The learned trial Judge was therefore wrong to have relied on Section 5 of 1996 Order to hold as he did that the designation of the Otukpo as an Urban Centre is inchoate because of lack of delimitation of physical limit of the Designated Urban Area after appropriate survey.
I am also in complete agreement with the learned Counsel to the Appellant that the Constitution of the Federal
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Republic of Nigeria, 1999 (as amended), in the First Schedule, Part 1 thereof, lists Otukpo as one of the 774 Local Governments in the Federation of Nigeria apart from Section 3(3) of the First Schedule to the Benue State Local Government Law, 2007 coupled with the Certificates of Occupancy issued in respect of the land in dispute as can be gleaned from pages 17 to 27 of the Record of Appeal which are incontestable evidence that the disputed land is located in Otukpo Urban Area and which evidence the Court ought to have taken judicial notice of without any further proof by the Appellant.
On the whole, the Appellant’s Appeal is meritorious and hereby succeeds. The Judgment of M.A. Abounu, J., of the Otukpo High Court delivered on the 11th October, 2011 dismissing the Appellant’s Originating Motion for the Prohibition of the Upper Area Court, Otukpo from hearing and determining the 2nd Plaintiff/Respondent’s Suit, is hereby set aside and in its stead, the Application granted and ordered as prayed.
Cost of N50, 000.00 is awarded in favour of the Appellant against the 2nd Respondent.
ONYEKACHI AJA OTISI, J.C.A.: I was privileged to
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read in advance a copy of the lead Judgment just delivered by my Learned Brother, Ignatius Igwe Agube, JCA, in which this appeal was allowed. The appeal has merit. I adopt as mine the resolution of the issues arising for determination. I also allow the appeal and abide by the orders made in the lead Judgment, including the order as to costs.
JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother, Agube, JCA. I agree with the reasoning and conclusion therein which I adopt as mine in holding that the appeal has merit and I therefore allow It. I abide by the consequential orders made In the lead judgment.
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Appearances:
A.A. Sule, Esq. with him, E.J. Okwori, Esq., W.E. Awodi, Esq. and E.N. Okwanya, Esq. For Appellant(s)
Jonathan Akeme, Esq., with him, R.C. Owualah, Esq. (Holding the brief of P.A. Omengala, Esq.) – for 2nd Respondent For Respondent(s)
