ISAAC OLUWAGBEMI v. CHIEF THEOPHELUS AJAYI
(2007)LCN/2484(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2007
CA/I/15/04
RATIO
CONSTITUTIONAL LAW – THE SUPREMACY OF CONSTITUTION OF THE FEDERAL OF NIGERIA: WHETHER THE CONSTITUTION IS THE BASIC LAW OF NIGERIA
“Adediran & Anor v. Interland Transport Ltd (1991) 9 NWLR (pt 214) 155 at 179 G -H per Karibi Whyte, JSC, where the Supreme Court held as follows:- “The basic law of this country is the Constitution of the Federal Republic of Nigeria 1979 which came into force in October 1979, section 1 (1) makes the Constitution Supreme. and its provisions have binding force on all persons and authorities throughout the country” Similarly, in Kalu v. Odili (1992) 5 NWLR (pt.240) 130 at 188 (F) the Supreme Court again held per Karibi -Whyte, JSC interpreting the same section 1 (1) of the Constitution held inter alia. “It is both a fundamental and elementary principle of our law that the Constitution is the basic law of the land. It is the supreme law and its provisions have binding force on all authorities, institutions and persons throughout the country” PER ALFRED P. E. AWALA, J.C.A.
COURT – JURISDICTION: WHETHER A COURT WITHOUT JURISDICTION CAN MAKE ANY VALID ORDER
“The fundamental nature of jurisdiction of court and the effect of absence of it on proceeding before the court can adjudicate in a dispute (Civil or Criminal) can not be overemphasized. It is a threshold issue. Consequently without the necessary jurisdiction a court can not make any valid order. See Nwanye v. Anvichie (Supra)” PER ALFRED P. E. AWALA, J.C.A.
COURT – JURISDICTION: INSTANCES WHERE OBJECTION TO JURISDICTION OF COURT CAN BE RAISED
“I will chip in a word or two on the issue of jurisdiction. See Nwoye v. Anyichie (2005) 2 NWLR (pt.910) 633 (1) It is crucial to note when an objection to jurisdiction of the court can be raised. It is in any of the following situations: (a) On the face of the writ of summons where appropriate, as to the capacity in which the action was brought, or (b) On the basis of the statement of claim, or (c) On the basis of the evidence received, and (d) By motion supported by affidavit setting out the facts relied on. A.G Kwara State v. Olawale (1993) 1 NWLR (pt 272) 645 NDIC v. CBN (2002) 7 NWLR (Pt.766) 272 Arjav Ltd. v. Airline Management support Ltd. (2003) 7 NWLR (pt 820) 577.” PER ALFRED P. E. AWALA, J.C.A.
COURT – JURISDICTION: AT WHAT STAGE OF THE PROCEEDINGS CAN THE ISSUE OF JURISDICTION BE RAISED
“Finally it is also important to note, that the question of the absence of jurisdiction in a court to hear a case (objection) can be raised at any stage of the proceedings and even at the appeal stage as it happened in the instant case. It was raised for the first time at the second Appellate Court, the High Court of Osun State holden at Ilesa and its out come is the res of this appeal. See Tukur v. Government of Gongola State (1989) 4 NWLR (pt.117) 517.Sande v. Abdulai (1989) 4 NWLR (pt.116) 387.” PER ALFRED P. E. AWALA, J.C.A.
JUSTICES
MUSA DITTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ALFRED PEARSON EYEWUNMI AWALA Justice of The Court of Appeal of Nigeria
Between
ISAAC OLUWAGBEMI Appellant(s)
AND
CHIEF THEOPHELUS AJAYI
[For Idominasi Community] Respondent(s)
ALFRED P. E. AWALA, J.C.A. (Delivering the Leading Judgment): This is an appeal solely based on the issue of jurisdiction. It emanates from the decision of Olawoyin J. of the High Court of Justice of Osun State of Nigeria holden at Ilesa in Suit No. HIL/1A/01 whereby he dismissed an appeal filed by the Defendant/Appellant against the decision of L. O. Orojo Esq, a Magistrate Grade II, sitting as an Appellate court at Ilesa and whereat he, the Magistrate, dismissed an appeal filed by the Defendant/Appellant against the judgment of the lower trial court, an Ibokun Grade ‘C’ Customary Court holden at Ibokun in Obokun Local Government Area of Osun State of Nigeria.
The claims of the Plaintiff/Respondent before the trial court read:
“(1) Declaration of title to a piece of farm land situate and being at Orisunbare/Oro Village, Osogbo road, Idominasi.
(2) Injunction restraining the Defendant, his wife, agents, servants or privies from further trespassing into the said farm land. The said farm land is bounded as follows:-
1st side bound by Orisunbare village on Idominasi community land. 2nd side is bounded by Oritu and Jeje family land. 3rd side is bounded by a stream and Ora river and 4th side is bounded by Ora village Idominasi community land”.
Before I embark on considering this appeal, it is pertinent to tell the story as it happened in the beginning, albeit briefly. It is as follows:
The Plaintiff/Respondent sued the Defendant/Appellant in a representative capacity before a Grade ‘C’ Customary Court as aforesaid for a declaration of title to a piece or parcel of farmland and for an injunction restraining the Defendant and his privy as aforesaid. The case was heard and in the end the trial courts found for the plaintiffs and entered judgment against the Defendant.
During the trial two other Defendants were joined on the application of the Defendant. The two joined Defendants gave evidence as DW2 and DW3 respectively, but they later faded out of the scene on appeal to the Appellate Magistrate Court, which dismissed the appeal. Dissatisfied, the Defendant further appealed to the High Court holden also at Ilesa which also dismissed his appeal.
On 24/4/2001 the Defendant jumped the Appellate Magistrate court, and filed an application at the Appellate High Court for a stay of execution, for leave to amend the Grounds of Appeal and for leave to argue an additional Grounds of Appeal not canvassed at the Appellate Magistrate court as a per schedule attached thereto as follows:-
“That the trial court lacks jurisdiction to entertain the Plaintiff’s claim when it failed to state the value of the land in dispute which, if stated would be more than N10,000.00 which is the maximum jurisdiction of the trial court”.
The application was moved and the same was granted by the appellate High Court on 26/4/01. Later, on 9/1/03, the appeal was heard. In the end the Appellate High Court also dismissed the appeal.
Dissatisfied, the Defendant now appeal to this court, with a Notice of Appeal dated 27/3/03 formulating two Grounds. As the two Grounds of Appeal are short, crucial and germane to the resolution of this appeal it is pertinent I reproduce them as hereunder with their particulars:-
Grounds of Appeal
“(1) The learned Judge sitting as Appellate Court erred in law to hold that provisions of Order 3 Rule 3 (3) Customary Court Rules 1978 no longer applied to issuance of summons, for the Plaintiff, to state the value of the land in dispute in view of the provision of section 41 of the Land Use Act Cap 202 Vol. XI Laws of the Federation of Nigeria 1990.
Particulars of Error
“(i) Order 3 Rule 3 (3) Customary Court’s Rules as contained in the 1978 Vol. II Laws of Oyo State 1978 as applicable in Osun State made it mandatory for a Plaintiff to state the value of land in the particulars of claim. This provision does not contravene section 41 of the Land Use Act.
(ii) Section 41 of the Land Use Act saves the provision of Order 3 Rule 3 (3) when it provides” “…and all laws including Rules of Court regulating practice and procedure of such courts shall have effect with such modification as would enable effect to be given to this action.
(iii) The Respondent in the present appeal failed to state the value of the land as required by the law”.
(2) The Learned Judge sitting as an Appellate Court erred in law to hold that the decision in Oyeniran v. Egbetola (1997) 5 SCNJ 94 does not provide for Plaintiff to state value of the land in particulars of the claim in the Customary Court.
Particulars of Errors
(i) Egbetola’s case (supra) did not overrule the provision of Order 3 Rule 3 (3) of the Customary Court Rules 1978 of Oyo State as applicable, in Osun State which is saved by the provision of section 41 of the Land Use Act of 1990.
(ii) Oveniran v. Egbetola (supra) has been overruled by Adisa v. Oyinwola (2000) 6 SCNJ 290 thereby giving concurrent jurisdiction to both High Court and Customary Court on Land dispute in non-urban areas.
(iii) Onasanya v. Sopitan (1975) Uni Ife Law Report (pt 4) 482 and Motanmi v. Akintola (1973) 4 WSCA 27 specifically made it mandatory that Plaintiff should state value of the land, and the decisions have not been overruled.
(iv) That neither the Land Use Act nor cases of Egbetola and of Adisa overruled Onasanya v. Sopitan and Motanmi v. Akintola (both supra)
Relief Sought From The Court Of Appeal
Allowing the Defendant/Appellant’s appeal and order the striking out of the Plaintiff’s claim as not competent before Grade ‘C’ Customary Court, Ibokun.
As per the Rules of this court the parties’ Learned Counsel filed and exchanged their respective Briefs Of Argument that is to say, the Appellant’s and Respondent’s Briefs. No Reply Briefwas filed.
Appellant’s Counsel in his brief distilled two issues for determination while the Respondent’s one, as follows:-
“(A) Appellants’ Two Issues.
(1) Whether the Learned Judge, Honourable Justice F. O. Olawovin, sitting as an Appellate judge, was correct to hold that the provisions of Order 3 Rule 3 (3) Customary Court’s rules 1978 no longer applied having regards to the provisions of section 41 of the Land Use Act Cap 202 Vol. XI Laws of the Federation of Nigeria (Ground 1)
(2) Whether the decision in Oyeniran v. Egbetola (1975) 5 SCNJ 94 did not require the Plaintiff to state value of land in this particular class of Customary Court, that is Grade ‘C’ Customary Court, whose jurisdiction is limited to N10,000,00 (ten thousand Naira).”
(B) Respondent’s Sole Issue
“Whether the Ibukun Grade ‘C’ Customary Court which is the Court of first instance in this matter, has the jurisdiction to entertain this matter,”
I shall adopt the two issues couched by the Appellant with modification not only because he has the burden to prove to the satisfaction of this court his Grounds of Appeal but also in my view the two issues are more germane and apt and is in compliance with Order 6 rule 3, that is to say, more connected to the Grounds of Appeal. The same thing can not be said of the one issue formulated by the Respondent. See Hallam v. AG Plateau State (1996) 9 NWLR (Pt 471) 242. Court of Appeal (Jos Division)
Nevertheless, I still the hold the firm view that the two issues couched by the Respondent are prolix. They are no more than the following one (modification by me) to avoid prolixity: I take cover under our Apex Court’s decision in Labiyi v. Anretiola (1992) 2 NWLR (pt.258) 139 as the justice of the case demands which empowers this court to modify or even redraft inelegant issue(s), The remodified issue reads:
“Whether the Ibokun Grade C Customary Court which is the court of first instance had jurisdiction to determine a land matters in Rural Area of unlimited value or value more than N10,000.00 [emphasis mine].
I shall now proceed to consider the arguments of counsel for the parties but before I do so, it is crucial in my view to state from the on set that there is no issue of fact, involved in this appeal at all. It is one of law jurisdiction.
Arguing the modified issue the Appellant’s Learned Counsel at page 2 of his Brief, argued, referring to page 41 of the transcript record that the Learned Appellate High Court Judge quoting section 137 of the Land Use Act 1978 held as follows:-
“I quite agree with Respondent’s Counsel observation that this section has been interpreted in the case of Ogunsina v. Ogunleye (1994) 5 NWLR (pt 346) 626 as conferring unlimited jurisdiction on Customary Courts to entertain land matters in non-urban areas. It was further held in that case any state legislation which seems to limit the jurisdiction of Customary Courts in regards to value of the land to be adjudicated upon, is inconsistent with section of the Land Use Act 1978 and therefore void.”
Continuing counsel quote the provision of Order 3 Rule 3 (3) of the Customary Court Rules as follows:-
“(3) When making an application for summons in any land cause or Land matter, the applicant shall state the value of the land to enable such value to be stated in the summons”
Contending further, counsel argued that section 41 of the Land Use Act provides amongst others as follows:-
“….and all the 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.”, [emphasis by counsel]
Appellant’s Learned Counsel then opined that the later part of section 41 of the Land Use Act protects and keeps alive Order 3 Rule 3 (3) Customary Court Rules as rules of court regulating the practice and procedure of such courts, that is to say, Grade ‘C’ Customary Court, Ibokun to state the value of the land in the summons.
Contending further still, counsel submits, that the Learned Appellate Judge sitting as Appellate court has not averted his mind to the fact that both the High Court and the Customary Court now have concurrent jurisdiction to entertain land matters in non-urban area as per the judgment of the Supreme Court in Adisa at page 316 per Ayoola JSC thus:
“…section 41 redefines the jurisdiction of the courts referred to therein so as to ensure that courts, such as Customary Courts in southern part of the country which has been previously been exercising concurrent jurisdiction with the High court without distinction by classification of land, have their jurisdiction limited as stated therein when properly reviewed,’ the two sections do not limit the jurisdiction of the High Court.” [emphasis by counsel]
In other words, counsel submits that the High Court now has unlimited jurisdiction in dealing with land matters in non-urban area, The jurisdiction of Customary Court Grade however is limited to N10,000.00 (ten thousand Naira) as provided in the Customary Courts law as follows:-
CIVIL JURISDICTION OF GRADE “C’ CUSTOMARY COURT IS:-
“(1) Jurisdiction in land matters arising under the law to be administered by the court in accordance with paragraph (a) of section 16 where the value of the subject matter does not exceed ten thousand Naira (N10,000.00)”.
[emphasis by counsel]
Counsel then submits that the Customary Courts law provides for Grades “A”, “8” and “C”, In the case of Grade “A” it is unlimited in land matters (in rural areas). He then submits that the provision of Order 3 Rule 3 (3) of the Customary Court Rules does not conflict with the Federal Law that is section 41 of the Land Use Act and therefore it is not void. The Plaintiff/Respondent was duty bound therefore to state the value of the land as provided for by Order 3 Rule 3 (3) of the Customary Court Rules, under the Customary Court’s Law. Counsel submits the decision in Ogunsina v. Ogunleye (supra) did not overrule the provision of Order 3 Rule 3(3) of the Customary Court Rules.
Arguing further Appellant counsel submits that the Judge sitting as Appellate Court held at page 138 of the record:-
“It could be seen that from Egbetola’s case to Adisa’s case the jurisdiction of the Customary Court is still recognized.”
Appellant’s counsel argued that it is not the contention of the Appellant before the lower court that the customary court has no jurisdiction but that both the High Court and the Customary Court have jurisdiction to entertain land matters from non-urban areas as it is in the present case. If both the Customary Courts that is Grade ‘C’ Customary Court as in the present case and the High Court have jurisdiction, it stands to reason therefore, that the Plaintiff ought to have complied with Order 3 Rule 3 (3) Customary Court Rule, because the jurisdiction of Grade ‘C’ Customary Court is limited to N10,000.00 whereas the jurisdiction of the High Court is unlimited.
Contending further counsel opined that reading through Egbetola’s case it is clear it neither directly nor by any inference say that Order 3 Rule 3 (3) (supra) shall not apply. It dealt with the jurisdiction of the High Court in respect of land in non-urban areas. The case of Adisa has however overruled Egbetola and has laid to rest the doubt hitherto whether the High Court has jurisdiction to entertain land matters in non-urban areas. And it stands to reason therefore, opined learned Appellant counsel, that the Plaintiff in the instant cause or matter ought to complied with the said Order 3 Rule 3 (3) of the Customary court Rules by putting the value of the land in his summons.
Arguing further, counsel argued what the learned Appellant Judge had to say about Onasanya v. Sopitan & Malomu v. Akintola was that the cases
“were decided ever before section 41 of the Land Use Act 1978 was promulgated hence the decisions in those cases will not be relevant here”
Counsel opined that section 41 of the Land Use Act did not make those decisions irrelevant because the later part of section 41 of the Land Use Act provides “…and all laws including the rules of court regulating practice and procedure of such courts shall have effect with such modifications as would enable effect to be given tot his section”
[emphasis by counsel]
Counsel submits if section 41 of the Land Use Act was properly construed by the Learned Appellate Judge of the lower court, he would have realized that the decisions in Onasanya v. Sopitan (1975) 5 Uni Ife Rep. (Pt.4) 482 and Malomo v. Akintola (1973) 4 WSCA 27 are relevant to the instant case. For example the Western State Court of Appeal (WSCA) in Onasanya v. Sopitan held:
“The value of the land becomes important in deciding the jurisdiction of the court. according to the second schedule to Customary Court Law, part II paragraph 4 a Grade ‘B’ Customary Court has jurisdiction in land matters in which the value of the subject matter does not exceed two hundred pound…and since only the rental value is stated on the particular claim, it is impossible to say that it is a case within the jurisdiction of Grade ‘B’ Customary Court where it was files.” [emphasis by counsel]
In conclusion the WSCA held:
That they had no reason to deviate from their decision in Malomo v. Akintola case [supra] where they held:
“…the omission to state the value of the land in the writ was fatal to the action and the case should have been struck out”. [emphasis by counsel]
Finally the Learned Appellants’ Counsel urged it on us to allow the appeal and strike out the Plaintiffs claim for failing to comply with Order 3 Rule 3 (3) Customary Court Rule 1978 as the trial court lacked jurisdiction to have entertained the matter.
Arguing in reply, the learned counsel for the Plaintiff/Respondent submits as follows:-
a. That the decision of the Appellate High Court that the Customary Court, by virtue of the provision of section 41 of the Land Use Act, now has an unlimited jurisdiction to entertain matters relating to land in rural areas or land which are covered by customary right of occupancy and irrespective of the value of the land that in arriving at this decision. Counsel opined, that the Learned Appellate Judge relied on Ogunsina v. Ogunleye (1994) 5 NWLR (pt.346) 626.
b. It is mandatory as provided for by Order 3 Rule 3 (3) of the customary court rules for a Plaintiff instituting a land case before a Customary Court to state the value of the land in the summons. That the Appellant counsel submits that propositions (a) and (b) above relied on the cases of Onasanva v Sopitan (1975) 4 Uni Ife Law Report (pt 4) 482 and Malomo v. Akintola (1973) 4 WSCA 27.
c. That the contention further by the Appellant’s counsel that the Learned Appellate judge erroneously held that the case of Oyeniran v. Egbetola (1997) 5 NWLR (pt.504) 122, states that Order 3 Rule 3 (3) of the Customary Court Rules no longer applies, and that the case of Adisa v. Oyinwola (2000) NWLR (pt 674) 116 has overruled Egbetola (supra) are erroneous.
d. That the true position of the law now, Respondent’s counsel submits, is that in investigating whether a Customary Court has jurisdiction to entertain a Land matter in rural areas which ownership of the land is in issue, the right direction to look at is the provision of the Land Use Act, Cap 202 section 41 and no more. The section enacts as follows:
“…41 An Area Court or Customary Court or other courts 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 purpose 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 modification as would enable effect to be given to this section”. [emphasis by counsel]
e. Respondent’s Counsel opined that it is clear from reading the above provision, that the Customary Court now has an unlimited jurisdiction to entertain matters, to use the words of section 41 reproduced above:
“in respect of proceedings in respect of a Customary Right of Occupancy granted by a Local Government under the Act, and for the purposes of this paragraph, proceedings include proceedings for a declaration of title to customary Right of Occupancy. [emphasis by Counsel]
f. That the cases of Onasanya v. Sopitan (supra) and Malomo v. Akintola (supra) are now irrelevant. Counsel opined that the purpose of stating the value of the land according to Onasanya is as follows:-
“The value of the land becomes important in deciding the jurisdiction, According to the second schedule to the Customary Courts law. Part 11 paragraph (4) a Grade ‘B’ Customary Court has jurisdiction in land matters in which the value of the subject matter does not exceed two hundred pound … and since only the rental value is stated on the particular claim, it is impossible to say that it is a case within the jurisdiction of Grade ‘B’ Customary Court where it was filed”. [emphasis by Counsel]
Respondent’s Counsel opined further that those cases are now irrelevant because irrespective of the value of the land, the Customary Court now has jurisdiction to entertain and hear matters or causes in respect of land to which section 41 is applicable.
g. Counsel concluded that it is now depends, like a child depends on its mother, on the cases like Oyeniran v, Egbetola and Adisa v. Oyinwola. How do they evolved in solving the issue of jurisdiction involved here? Respondents’ counsel contends that the case of Adisa has done it all, it has overruled the case of Oveniran v. Egbetola. That the Appellant Counsel himself conceded that fact. Respondent’s Counsel posed another pertinent question. To what extent did Adisa reverse Egbetola? He answered the question himself, that the extent is obvious, from the judgment itself. It is that Adisa held that the Customary Court has an inclusive jurisdiction in respect of land that is the subject of a Customary Right Of Occupancy. In other words, the Supreme Court in Adisa held that both the High Court of a State and the Customary Court in a rural area of a state have concurrent and unlimited jurisdiction in respect of a declaration of Customary Right of Occupancy.
h. Contending further, Learned Respondent’s Counsel submits again by way of emphasis, that the decision in Adisa has put it beyond doubt that the Customary Court now has unlimited jurisdiction to entertain any land matter in rural areas of a state without distinction.
In conclusion, the Respondent’s Learned Counsel therefore urges it on us to dismiss the appeal because the Ibokun Grade ‘C’ Customary Court had jurisdiction to hear the matter.
Now I have endeavoured to summarize the arguments of Learned Counsels for the parties fully to see at a glance where the pendulum of the imaginary scale of justice tilts. See Mogaji v. Odofin (1978) 4 SC 91 and Kate Enterprise (Nig) Ltd’ v. Daewoo (Nig) Ltd (1985) NWLR (pt.1). Even a casual perusal of the arguments of counsel for the parties as I have set them out in a nut shell above reveals clearly and manifestly that the pendulum is on the side of the Respondent. It is not so much because there is a “triconcurrent” judgments (permit my new English coinage) in favour of the Plaintiff/Respondent from the trial court to the first Appellate (the Magistrate Court) to the Second Appellate Court (the High Court) but more so because of the principle of stare decisis which is sacrosanct in our judicial jurisprudence And it is that the decision of the Supreme Court is authoritatively binding on all. Courts in the land including this court.
Uwaifo JSC, in his own contribution in Adisa put the law as follows at page 217 of the Report:-
“Happily section 41 of the Land Use Act is plain enough not to cause any constitutional difficulties. It provides:-
“41: 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 customary right of occupancy. This provision has achieved certain goals. First, it declines to give jurisdiction to those courts in respect of urban I and but rather implies that they have no such jurisdiction. Secondly, it does not attempt to take away or detract from the unlimited jurisdiction conferred on the state High Court under section 2 36 (1) of the Constitution by refraining to use the word “exclusive” in the jurisdiction it granted to those courts. Thirdly, customary or similar courts in the Southern Nigeria whose jurisdiction in land matters in most cases depended on the value of the land, and in some cases had no such jurisdiction at all, now have jurisdiction in land matters, although only in rural areas, irrespective of the value of the land” [emphasis mine]
The Supreme Court’s holding in Adisa bines this court. For the avoidance of doubt I reproduce part of it again hereunder also by Uwaifo JSC thus:-
“Third, Customary courts or similar courts in the southern Nigeria whose jurisdiction in land matters in most cases depended on the value of the land and in some cases had no such jurisdiction at all, now have jurisdiction in land matters, although only in rural areas, irrespective of the value of the land” Per Uwaifo, JSC [emphasis mine]
In ending this judgment, I must refer to Adediran & Anor v. Interland Transport Ltd (1991) 9 NWLR (pt 214) 155 at 179 G -H per Karibi Whyte, JSC, where the Supreme Court held as follows:-
“The basic law of this country is the Constitution of the Federal Republic of Nigeria 1979 which came into force in October 1979, section 1 (1) makes the Constitution Supreme. and its provisions have binding force on all persons and authorities throughout the country” [emphasis mine]
Similarly, in Kalu v. Odili (1992) 5 NWLR (pt.240) 130 at 188 (F) the Supreme Court again held per Karibi -Whyte, JSC interpreting the same section 1 (1) of the Constitution held inter alia.
“It is both a fundamental and elementary principle of our law that the Constitution is the basic law of the land. It is the supreme law and its provisions have binding force on all authorities, institutions and persons throughout the country” [emphasis mine]
I must say myself that the Law Reports are replete with plethora of authorities in the similar vain in the 1999 Constitution, which is our current grundnorm. What is Grundnorm? It is the basic law or model or standard accepted (voluntarily or involuntarily) by the society as the right behaviour superior to every other law, see Black-law Dictionary 8th edition.
What am I saying in a nutshell? It is that the trial court, the Ibokun Grade C Customary Court had jurisdiction to entertain the cause or matter filed by the Respondents thereat. I am done.
But before I end this judgment, I will chip in a word or two on the issue of jurisdiction. See Nwoye v. Anyichie (2005) 2 NWLR (pt.910) 633
(1) It is crucial to note when an objection to jurisdiction of the court can be raised. It is in any of the following situations:
(a) On the face of the writ of summons where appropriate, as to the capacity in which the action was brought, or
(b) On the basis of the statement of claim, or
(c) On the basis of the evidence received, and
(d) By motion supported by affidavit setting out the facts relied on.
A.G Kwara State v. Olawale (1993) 1 NWLR (pt 272) 645
NDIC v. CBN (2002) 7 NWLR (Pt.766) 272
Arjav Ltd. v. Airline Management support Ltd. (2003) 7 NWLR (pt 820) 577.
(2) The fundamental nature of jurisdiction of court and the effect of absence of it on proceeding before the court can adjudicate in a dispute (Civil or Criminal) can not be overemphasized. It is a threshold issue. Consequently without the necessary jurisdiction. a court can not make any valid order.
See Nwanye v. Anvichie (Supra)
Lagos State v. Dosunmu (1989) 3 NWLR (pt.111) 552
(3) Finally it is also important to note, that the question of the absence of jurisdiction in a court to hear a case (objection) can be raised at any stage of the proceedings and even at the appeal stage as it happened in the instant case. It was raised for the first time at the second Appellate Court, the High Court of Osun State holden at Ilesa and its out come is the res of this appeal.
See Tukur v. Government of Gongola State (1989) 4 NWLR (pt.117) 517.
Sande v. Abdulai (1989) 4 NWLR (pt.116) 387.
In the final analysis, I dismiss this appeal as lacking in merit. I award N4,000.00 as cost of this appeal against the Appellant and in favour of the Respondent.
MUSA DATTIJO MUHAMMAD, J.C.A.: Appellate Courts are very slow and hesitant in interfering with concurrent findings of lower courts. It is for this and the fuller reasons advanced by my learned brother Awala JCA that I also agree to affirm the decision of the lower court. The appeal which lacks merit, as it has failed to discredit the concurrent findings of the courts below, is accordingly hereby dismissed with cost as put in the lead judgment.
AMINA A. AUGIE, J.C.A.: I have read the lead Judgment just delivered by my learned brother, Awala, JCA, and I agree with his reasoning and conclusion. The Judgment of the trial Customary Court cannot be faulted. It was affirmed by the Ilesa Magistrate Grade II Court, then by the Ilesa High Court and I see no reason to reverse the trend. It is an established principle that unless it becomes absolutely desirable to do so, the concurrent decisions of lower Courts are hardly disturbed by the Appeal Court – see Usman v. Usman (2003) 11 NWLR (pt.830) 109, Agu v. Nnadi (2002) 18 NWLR (pt. 798) 103 SC, Nziwu v. Onuorah (2002) 4 NWLR (pt.756) 22 SC. I therefore dismiss the appeal, and I abide by the consequential orders in the lead Judgment, including costs.
Appearances
Adeyeye Adelekun, Esq. and M. B. Ganiyu Esq.For Appellant
AND
O. A. Adebiyi Esq.For Respondent
