MRS. EKPOANWAN ITAM v. MRS. NKOYO OROK OKON EFFIONG
(2013)LCN/6061(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of March, 2013
CA/C/68/2011
RATIO
“Prof. B. O. Nwabueze in his book titled “Nigerian Land Law” explains the meaning of LAND as “It does not just mean the ground and its subsoil, but includes also all structures and objects, like buildings and trees standing on it. …Immovable property or lands include land and everything attached to the earth or permanently fastened to anything which is attached to the earth and all chattels real.” Per NDUKWE-ANYANWU, J.C.A.
“Certiorari is a prerogative order available to the High Court in the exercise of its supervisory control over an inferior court, tribunal or body entrusted with the performance of a judicial or quasi-judicial function to ensure that it does not exceed its jurisdiction or commit irregularities, making its decision bad on the face of it. An order of certiorari or prohibition will lie against anybody or person having a legal duty to determine questions affecting the rights of subjects whenever the duty implies at least that that body or person should act fairly or in accordance with a statutory provision. An Order of Certiorari will thus issue to quash the decision of on inferior court where it is established that: (a) the inferior court has acted in excess of its jurisdiction. (b) there is a breach of the rules of natural justice. (c) there is an error of law on the face of the plaint filed in the inferior court containing the claim or charge. In State v Nwaoboshi (2003) 8 MJSC 170, (2003) 11 NWLR (pt.831) 305, the Supreme Court per Uwoifo JSC said: “It is elementary that certiorari is a prerogative writ of common law origin available to the High court in the exercise of its supervisory control over an inferior tribunal or Court to ensure that it does not exceed its jurisdiction or commit irregularities making its decision bad on its face: See R. v. District Officer/or Kutia People Ex parte Eti Atem (1961) All NLR 51 at 56 per Adeola CJF. The writ is issued in order that the issuing Court may bring the proceedings of the inferior tribunal or Court before it for inspection and if there is due cause disclosed, to quash them.” See also: Onuzulike v CSD Anambra State (1992) 3 NWLR (PT 232) 791″ Per OTISI, J.C.A.
“In Administrative Law, 4th edition by H.W.R. Wade, page 526 the learned author stated that: “Certiorari is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed – that is to say, it is declared completely invalid, so that no one need respect it. The underlying policy is that all inferior Courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the Crown in motion…” Per TUR, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
MRS. EKPOANWAN ITAM
(Administratrix of the Estate of Chief (Mrs.) Okoho Ephraim Duke) Appellant(s)
AND
MRS. NKOYO OROK OKON EFFIONG Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State sitting in Calabar delivered on 14th day of December, 2010 quashing the proceedings and judgment of the Customary Court of Calabar in suit No .CV/49/2001.
Briefly, the Appellant claimed that her mother and the Respondent’s mother in-law jointly owned the property No.28 Edem Odo Street, Calabar. The Appellant as plaintiff had sued the Respondent as defendant in the Customary Court asking the court to share the property between them in Suit No.CV/49/2001.
The Respondent however filed a suit No.HC/342/2009 in the High Court by way of writ of certiorari asking the court to quash the proceedings and judgment of the Customary Court obtained in 2001. The Respondent claimed that her mother in-law Madam Atim Inameti built the property single handedly and gave her sister Iquo Inameti one room. Upon her demise in 1986, the Son Mr. Orok Okon Effiong the husband to the Respondent inherited No.28 Edem Odo Street. The High Court quashed the judgment of the Customary Court hence this appeal.
The Appellant filed a notice and three grounds of appeal on 24th day of January, 2011. The Appellant filed his brief on 5th day of August, 2011 but deemed properly filed and served on 28th day of June, 2012. The Appellant articulated only one issue for determination as follows:
“Whether the learned trial Judge was right in quashing the proceedings and judgment of the Customary Court, Calabar in Suit No.CV/49/2001 for want of jurisdiction.”
The Respondent’s brief was filed on 17th day of July, 2012 and in it he also articulated only one issue for determination as follows:
“Whether the learned High Court Judge was right when he found and held that the dispute between the parties in Suit NO.CV/49/2001 related to Urban Land in respect of which the trial Customary Court lacks jurisdiction thereby quashing the proceedings and judgment of the Customary Court”
Both issues are basically the same as both issues are challenging the jurisdiction of the Customary Court in hearing the subject matter in issue.
The learned counsel to the Appellant submitted that the learned trial Judge anchored his decision on Section 39(1) of the Land Use Act, 1978 which provides as follows:
“(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 purpose of this paragraph, proceedings include proceedings for a 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.”
Counsel submitted that the courts in several cases have stated that jurisdiction of a court is determined by the claim of the plaintiff. See Olorun Toba-Oju vs. Dopamu (2003) FWLR Pt.158 page 1268 per Amaizu, JCA where the Court held as follows:
“In other (sic) to determine whether in a given case, the subject matter of the action is within the jurisdiction of the court, one has to look only at the reliefs sought by the plaintiff in the case.”
Also Tanarewa (Nig.) Ltd. vs. Plastifarm Ltd. (2003) 14 NWLR Pt.840 page 355 per Salami, JCA (as he then was) held as follows:
“The determination of the issue of jurisdiction turns upon the claims endorsed on the writ of summons or particulars of claim where one exists or a statement of claim. It is from one or more of these processes filed by the plaintiff that his cause of action which is described as a bundle or aggregate of facts in the relationship between the parties which the Court will recognize as enabling the plaintiff to enforce the claim against the defendant.”
The Supreme Court also rested this issue in Olofu vs. Itodo (2011) All FWLR Pt.572 page 1637 thus:-
“In order to determine whether a Court before which a matter pends has the jurisdiction to entertain the same, the court has to look at the plaintiff’s statement of claim before it and not the defence put forward by the defendant to the action…”
See also Ogunsola vs. APP (2003) 9 NWLR Pt.826 page 462; DE LLUCH vs. S.B.N. (2003) 9 NWLR Pt. 842 page 1; Nwachukwu vs. Afuzee (2009) 4 NWLR Pt.1131 page 336; NNPC vs. SLB Consortium Ltd. (2009) All FWLR Pt.452 page 1036.
The plaintiffs claim in the Customary Court is as follows:
“1. The Court should share the property now in dispute between the sister late Madam, Atim Inameti and late Madam Ikwo Inameti.
2. An INJUNCTION restraining the defendant, their agent, workmen, and privy from further collecting rent or doing any manner of work connecting the house in dispute. Hence this Court action.”
Also in the particulars of claim the plaintiff claimed:
“My mother (Madam Ikwo Inameti) died sometimes in 1996, before her death she and her late sister Madam Atim Inameti had built a house situate at No.28 Edem Odo Street, Calabar. This house is a common property between both of them. I am the daughter of late Madam, Ikwo Inameti and I am one of the beneficiaries in the mentioned property which is the borne (sic) of contention now.”
Learned counsel submitted that what the plaintiff was claiming in the Customary Court was just for simply sharing the property in question. She was not contesting the ownership of the land upon which the property is built. In her evidence she testified that:
“I am coming to the Court in matters affecting the house at No.28 Edem Odo Street, Calabar. The land in which the house stands is under the clan known as Akwa Ikot Ekpe Efik in which I am the Clan Head. But I am not talking in relation to the land but the house…
I wish to state here that my mother Ikwo Inameti and her sister Atim Inameti jointly built the house and lived there as the two sisters loved themselves. When Atim lnameti died, she was buried by my mother Ikwo Inameti. And when Ikwo Inameti died in 1996, the Defendant had been collecting rent from the house, hence I am therefore soliciting the court to come and share the house among the two sisters, namely:
“1. Ikwo Inameti
2. Atim Inameti.”
See pages 27 and 29 of the record of appeal.
Counsel submitted that the claim was just for sharing and succession and clearly comes within the armbit of the Customary Court. The jurisdiction of the Customary Court is as prescribed in the Customary Courts Law Cap. C.21 Laws of Cross River State Federal Republic of Nigeria, 2004. Section 12(1) of the Law provides:
“The jurisdiction of Customary Courts in all causes and matters, criminal and civil, shall be as prescribed in the first schedule.”
Paragraph 2 provides:
“Civil Causes and Matters:
1. ……………………………………………
2. …………………………………………….
3. Unlimited jurisdiction in causes and matters concerning the ownership, possession, occupation or alienation of land provided that where a claim for damages is joined such claim shall not exceed in amount that sum of one hundred Naira.
4. Causes and matters relating to the succession to property and administration of estates under customary law where the value of the property does not exceed one hundred Naira.
5. …………………………………………..”
Counsel submitted that the trial Judge was wrong when he applied Section 39(1) of the Land Use Act to reach his conclusion. The trial Judge was also wrong in holding that the Appellant’s claim was in respect of land. Counsel submitted that the reasoning of the trial Judge was, that, sharing of the property in dispute cannot be resolved without first resolving the question of who owns the property in issue. The issue of title is therefore inescapable. Counsel argues that one person can own a building whilst another owns the land the building is standing on. The Appellant’s case was that the building was jointly built and therefore owned by both women. That issue can be determined by the court without necessarily determining ownership of the land on which the house stands. This was the decision in the Customary Court in Suit No. CV/49/2001 .
Counsel therefore urged the court to resolve this lone issue in favour of the Appellant.
In reply, the learned counsel to the Respondent submitted that the plaintiffs claim should be looked at when determining whether the court has jurisdiction or not.
However, counsel argued that in the Customary Court, Rules of pleadings are lax. In the case of Ajagunjeun & Ors. vs. Oso of Yeku Village & Ors. (1977-78) 11 NSCC page 275 the Supreme Court held that:
“We pause here, to draw to (1) the fact that these proceedings were initiated and tried in a customary court and, (2) the observation of the learned Judge on appeal in the High Court…with which we entirely agree to the effect that customary courts being a survival of the former Native Courts, the High Court in dealing with proceedings from these courts (i.e. Customary Courts) is entitled and expected to go beyond the claim as framed on the Writ and ascertain from the entire evidence before that court what, precisely, are the nature and subject matter of the dispute between the parties to the action. This principle of law which by special treatment and/or consideration is to be accorded to Native Court proceedings is settled by long line of decisions in this country.
…It must be obvious that in the case of proceedings in a Native Court in which members of the legal profession as such have no audience great latitude must be given and a broad interpretation placed on the proceedings and judgment so that in a case of this kind it is necessary in my view, to look at the whole of the proceedings i.e. the evidence of the parties an judgment, in order to arrive at a correct conclusion as to what the case was about.”
See also Ikpang vs. Edoho (1977-78) 11 NSCC page 423 where the Supreme Court held:
“…that great latitude must be given to, and a broad interpretation placed upon Native Court cases and Customary Court cases, so that the entire proceedings, the evidence of the parties and the judgment must be examine in order to determine what the native courts or customary court case was all about. The whole conception and result of the proceedings will show what the parties were fighting for, the matters upon which issues were joined, even if technically framed in an appropriate language from the stand-point of legal technocrats, and the decision of the Native Court on those issues.”
Counsel also referred the court to the following cases to buttress his point – Onwuama vs. Eze Okoli (2002) FWLR (Pt.100) page 1213 at pp. 1226-1227, paragraphs “E-A”; Zaria vs. Maituwo (1966) NMLR 59; Ibero vs. Ume-Ohana (1993) 3 NWLR (Pt.227) 510; Chukwueke vs. Okonkwo (1999) 1 NWLR (Pt.587) 410; and Duru vs. Onwumelu (2001) FWLR (Pt.89) 1194; Ekpa vs. Utong (1991) 2 NSCC page 278 at 280.
The Respondent’s case is that her mother in-law Atim Inameti was given the land by Queen Duke’s family. She built No. 28 Edem Odo Street on her own and gave her sister Ikwo Inameti one room. The land the subject matter of this appeal is situate within Calabar city and therefore in the urban area. Counsel reiterated that the Appellant had claimed that what is in dispute is the building not the land. This argument by the Appellant is spurious as the Supreme Court held in Unilife Ltd. vs. Adeshingbin & Ors. (2001) 5 NSCQR page 406 that:
“No doubt even to the layman today land no longer means the ordinary ground and its subsoil, but surely includes buildings and trees growing thereon.”
Counsel referred the court to the notorious maxim of quic quid plantatur solo, solo cedit and the cases of Orianwo vs. Oekere (2002) FWLR Pt.114 page 427; Agboola vs. UBA & Ors. (2011) 2-3 MJSC page 150; Adepate vs. Babatunde (2002) 4 NWLR Pt.754 page 99.
Counsel submitted that the parcel of land known as No.28 Edem Odo Street, Calabar comprises of the ordinary land, the subsoil, the thatch house and any other thing affixed thereon. For a court to have jurisdiction to entertain a suit, the subject matter must be within its jurisdiction. See FHC vs. Kalejaiye (2010) 44 NSCQR page 213; Adisa vs. Oyinlola (2000) 10 NWLR Pt.674 page 116; Ibodokun vs. Adaradole (2001) 12 NWLR Pt.727 page 268.
Where a court lacks jurisdiction to entertain a suit, the proceedings no matter how well conducted becomes a nullity. See Olofu vs. Ifodo (2010) 44 NSGQR page 558.
Where a court acted in excess of its jurisdiction, an application for judicial review of certiorari can be made to the High Court to bring the proceedings and judgment of the inferior court for the purpose of it being quashed, Nwaboshi vs. Milad Delta State (2003) 11 NWLR Pt.831 page 305.
Counsel urges the court to hold that the learned trial judge was right when he quashed the proceedings and judgment of the Customary Court in suit No.CV/49/2001. Counsel therefore urged the court to resolve this issue against the Appellant.
The first question that should be answered in this case is which law should apply in this dispute? We shall look again at the suit No.CV/49/2001 filed in the Customary Court. The claim is as follows:
“1. The Court should share the property now in dispute between the sister late Madam, Atim Inameti and late Madam Ikwo Inameti.
2. An INJUNCTION restraining the defendant, their agent, workmen, and privy from further collecting rent or doing any manner of work connecting the house in dispute. Hence this Court action.”
The property now in dispute is No.28 Edem Odo Street, Calabar. The claim is to share the property and an injunction to restrain the defendant. Does the Customary Court have jurisdiction to deal with these two subjects (1) sharing of property and (2) injunction restraining the defendant. Each one of this sub-head cannot be determined without first determining the title of the property in dispute and the court that has jurisdiction.
Courts are creatures of statutes and it is the statute that created a particular court that will also confer on it, its jurisdiction. Jurisdiction may be extended, not by the courts, but by the legislature.
Government of Kwara State vs. Gafar (1997) 7 NWLR Pt.511 page 51; Okulate vs. Anosanya (2000) 1 SC page 107; Messrs NV Scheef vs. The MV’s Araz (2000) 12 SC Pt.1 page 164.
The initial claim was instituted in the Customary Court of Calabar. The Customary Law Cap. C21 Laws of Cross River State, 2004. Section 12(1) provides:
“12(1) The jurisdiction of Customary Courts in all causes and matters, criminal and civil, shall be as prescribed in the first schedule.”
Paragraph 2 of the first schedule provides:
“Civil Causes and Matters:
1. ………………………….
2. ………………………….
3. Unlimited jurisdiction in causes and matters concerning the ownership, possession, occupation or alienation of land provided that where a claim for damages is joined such claim shall not exceed in amount that sum of one hundred Naira.
4. Causes and matters relating to the succession to property and administration of estates under customary law where the value of the property does not exceed one hundred Naira.
5. ……………………………………..”
The learned counsel to the Appellant in his brief submitted that the Appellant’s claim in the Customary Court fell squarely on paragraph 2 of the 1st Schedule. Counsel argued that the claim was, first for sharing the property and an injunction restraining the defendant.
Learned counsel to the Appellants also argued that a person can own a house and not own the land on which the house is situate! This argument I must say does not hold water. What of the maxim quic quid plantatur solo solo cedit? What ever is affixed to the soil, belongs to the soil. It beats my imagination that one person can own a house and not the land it is sitting on. This argument is quite spurious to me. Prof. B. O. Nwabueze in his book titled “Nigerian Land Law” explains the meaning of LAND as
“It does not just mean the ground and its subsoil, but includes also all structures and objects, like buildings and trees standing on it. …Immovable property or lands include land and everything attached to the earth or permanently fastened to anything which is attached to the earth and all chattels real.”
This is the meaning of land. Can the Appellant rightly say that the claim of sharing the building does not affect the land it is standing on? I think not. The sharing of the building is also sharing of the land that the building is standing on. Without the land there can be no building. The claim for sharing cannot be determined without determining the ownership of the land.
This land/building the subject matter of this appeal is a land situated in Calabar Municipality. Does the Customary Court have jurisdiction over such land? The case of Ajagunjeun & Ors. vs. Oso of Yeku Village & Ors. (supra) has this to say:
“We pause here, to draw to (1) the fact that these proceedings were initiated and tried in a customary court and, (2) the observation of the learned Judge on appeal in the High Court… with which we entirely agree to the effect that customary courts being a survival of the former Native Courts, the High Court in dealing with proceedings from these courts (i.e. Customary Courts) is entitled and expected to go beyond the claim as framed on the Writ and ascertain from the entire evidence before that court what, precisely, are the nature and subject matter of the dispute between the parties to the action. This principle of law which by special treatment and/or consideration is to be accorded to Native Court proceedings is settled by long line of decisions in this country.
…It must be obvious that in the case of proceedings in a Native Court in which members of the legal profession as such have no audience great latitude must be given and a broad interpretation placed on the proceedings and judgment so that in a case of this kind it is necessary in my view, to look at the whole of the proceedings i.e. the evidence of the parties and judgment, in order to arrive at a correct conclusion as to what the case was about.”
The decision of the Supreme Court must be followed in the instant case. I will not only look at the claims of the plaintiff in the Customary Court but at the proceedings as well. Even though the plaintiff therein had urged the court to share the building for the parties, it is crystal clear that the claim borders on the ownership of the land on which the building is standing on.
Does the Customary Court have jurisdiction on land in urban areas like Calabar?
“By virtue of Section 39(1) of the 1978 Land Use Act, the High Court, which is defined to be the High of the a State under Section 51 of the Act, shall have exclusive original jurisdiction in respect of proceedings in respect of any land the subject of a statutory right of occupancy granted by the Governor or deemed to be granted by him under the Act, which is defined to include proceedings for a declaration of title to a statutory right of occupancy; and proceedings to determine any question as to the persons entitled to compensation payable for improvement on land under the said Act.”
Attorney-General, Rivers State vs. Ohochukwu (2004) 6 NWLR (Pt.869) 340 CA
Okafor vs. Okonkwo (2002) 17 NWLR (Pt.796) 262 CA
Nzegwu vs. Omata (1999) 1 NWLR (Pt.592) 537 at 539 CA.
Thus it is clear from the above that a customary court has no jurisdiction to adjudicate on land in urban areas. Amadi vs. Acho (2005) 12 NWLR Pt.939 page 386.
It is the High Court that has jurisdiction over any piece of land in the urban and non-urban areas anywhere in Nigeria.
Egwunewu vs. Egeagwo (2007) 6 NWLR Pt.1031 page 431.
It is settled that it is only the High Court of a State that has jurisdiction in lands in urban areas of which Calabar is one. It therefore means that the Customary Court that shared the property the subject matter of this appeal had no jurisdiction to do so.
Without jurisdiction to entertain any land dispute in urban area, the Customary Court therefore had no vires to entertain suit No. CV/49/2001 . The application by the Applicant in Suit No. HC/342/2009 seeking the prerogative order of certiorari to quash the proceedings and judgment in suit No. CV/49/2001 was in order.
The judgment of the High Court quashing the proceedings and judgment of the Customary Court was right. The lone issue articulated by the Appellant is therefore resolved against her. This appeal is unmeritorious and therefore dismissed. The judgment of the High Court quashing the judgment of the Customary Court in suit No.CV/49/2001 is affirmed.
I make no orders as to costs. Parties to bear their own costs.
JOSEPH TINE TUR, J.C.A.: Having read the lead judgment of my Lord Uzo I. Ndukwe-Anyanwu, JCA, I am in total agreement that the Customary Court lacked the jurisdiction to entertain the subject matter in dispute and that the Court below acted within the ambit of the law to have quashed the proceedings by way of certiorari.
In Administrative Law, 4th edition by H.W.R. Wade, page 526 the learned author stated that:
“Certiorari is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed – that is to say, it is declared completely invalid, so that no one need respect it.
The underlying policy is that all inferior Courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the Crown in motion…”
Customary Courts in Cross River State are creatures of Law, namely, the Customary Courts Law Cap.C.21 Laws of Cross River State. Section 3 reads as follows:
“3. The Commission may, by warrant under his hand, establish such District Courts as he shall think fit which shall be Courts of record and exercise original jurisdiction in accordance with this Law, within such territorial limits as may be defined by the warrant, over causes and matters in which all the parties belong to a class of persons who have ordinarily been subject to the jurisdiction of customary tribunals, and reside or are within the areas of jurisdiction of such District Courts.”
Customary Courts established under the Law (supra) act by warrant and exercise original jurisdiction in accordance with the Law (supra) and within such territorial limits as may be defined by the warrant, over causes and matters in which all the parties belong to a class of persons who have ordinarily been subject to the jurisdiction of customary tribunals, and reside or are within the areas of jurisdiction of such Courts. Therefore, in the exercise of original jurisdiction customary Courts have to take into consideration the limits of their territorial jurisdiction, the location of the cause or matter and whether the parties are ordinarily subject to their jurisdiction, etc. See Section 11(a)(b) and (c) of the Law (supra). In land causes and matter Section 13(3) of the Law (supra) provides that:
(3) All land causes and matters shall be tried and determined by a Customary Court having jurisdiction over the area within which the land which is the subject matter of the dispute is situated:
Provided that where a customary Court has jurisdiction in any cause or matter concerning land, and the land the subject matter of the proceedings is situated partly within the area of the jurisdiction of two or more customary Courts, the Chief Judge shall determine in which customary Court the cause or matter shall be heard and thereupon, such Court shall have the same jurisdiction over the land in question as it has over land lying wholly within its jurisdiction and many take such course with regard to the cause or matter which it considers justice requires.”
The jurisdiction of a Customary Court over land thus extends to a “cause” or “matter” as defined in Part 1 Section 2 of the Law which reads thus:
“2. Interpretation:
‘In this law
“Cause” includes any action, suit or other original proceedings between a plaintiff and a defendant and any criminal proceedings;
xxxxxxxxxxxxxxxxxxxx
“Land cause” or “land matter” means a cause or matter relating to the ownership, occupation, possession or alienation of land;
xxxxxxxxxxxxxxxxxxxx
“Matters” includes any proceedings in a Court not in a “cause.”The subject matter in dispute according to the Respondent’s evidence in the Customary Court was in respect of “…matters affecting the house at No.28 Edem Odo Street, Calabar. The land in which the house stands is under the clan known as Akwa Ikot Ekpe Efik in which I am the Clan Head. But I am not talking in relation to the land but the house. A letter from Etubom Esu Bassey Duke is hereby tendered. The defendant claimed knowledge of it. It is accepted by the Court as exhibit, “A” by this I am the owner of the house and land by birth, but I am today contesting on the ownership of the house and land by birth, but I am today contesting on the ownership of the house.” See page 27 lines 16-21 of the printed record.
The evidence of the Respondent in the Customary Court was therefore very clear that he was claiming ownership and possession of the land and the house in dispute, namely, No.28 Edem Odo Street, Calabar.
Section 15(a) and (b) of the Law (supra) provides what law the Customary Court shall apply to be:
“(a) The customary law prevailing in the area of the jurisdiction of the Court or binding between the parties, so far as it is not repugnant to natural justice, equity and good conscience or incompatible either directly or by necessary implication with any written law for the time being in force in the State;
(b) The provisions of any written law (including in that expression subsidiary legislation) which the Court may be authorized to enforce by an order under Section 14.”
Can the Customary Court apply the customary law prevailing in the area of the jurisdiction of that Court to determine the reliefs sought by the Respondent in respect of No.28 Edem Odo Street, Calabar? I do not think so.
Section 41 of the Land Use Act, 1978 reads thus:
“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 purpose of this paragraph proceedings includes proceedings for a declaration of title to a customary right of occupancy and all law 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.”
The jurisdiction of Customary Courts in a State is limited to proceedings in respect of a customary right of occupancy granted by a Local Government under the Act (supra). And for the purpose of the Act, “proceedings” includes proceedings for a declaration of title to a “customary right of occupancy.” This term “means the right of a person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a Local Government under this Act.” See Section 51(1) of the Act (supra). The term “Local Government” means the appropriate Local Government or any other body having or exercising the powers of a Local Government as provided by law in respect of the area where the land in question is situated.”
The sum total of what I am saying is that the jurisdiction of a customary Court to entertain causes and matters in relation to any land in dispute is to be determined by where the land is situate. In this case the house is situate at No.28 Edem Odo Street, Calabar Cross River State. Is this house subject of a grant by a Local Government or the Cross River State Government? Firstly, in my humble view it does not lie within the mouth of learned Counsel to the respondent to change gear and argue on appeal as he has done that the respondent is claiming only the house but not the land. The house is not on the seas or in the air. The house is comfortably built on land. The two are inseparable. The question is whether the Customary Court had jurisdiction to entertain the “land cause ” or “land matter” in dispute?
In Dweye & ors. vs. Iyomahan & ors. (1983) NSCC 393 the subject matter in dispute was by the writ of summons and pleadings “that piece or parcel of farmland known as ‘Gelegele Land’ in Benin West Division within the Benin Judicial Division…” The question on appeal was whether the land was not part of the area of Bendel State which constituted the “urban area” designated under Bendel State Legal Notice No.22 of 1978. Chief Rotimi-Williams SAN’s argument that it is the situs that determines the question was accepted by the Supreme Court per Uwais, JSC (as he then was) at pages 395-396 as follows:
“Chief Williams, learned Counsel for the respondents submitted in reply that the decision of the Federal Court of Appeal did not deprive the appellants of their occupational rights on the land in dispute. He argued in the respondents’ brief and rightly in my view, that the question whether land is a subject of a statutory right of occupancy or customary right of occupancy does not depend upon the character of the tenure but rather on the location of the land. If the land is located in an area designated “urban area” by the appropriate authority under section 3 of the Land use Decree, then rights in land within such area could be statutory right of occupancy. He contended that the appellants were therefore wrong when they assumed that the land in dispute is necessarily the subject of customary right of occupancy.”
In my judgment there is the presumption that No.28 Edem Odo Street, Calabar is covered by a statutory but not a customary right of occupancy, hence, the Customary Court had no jurisdiction to entertain the cause or matter now subject of this appeal.
Accordingly, I also hold that certiorari was rightly employed by the Respondent to quash the judgment of the Customary Court by the Court below. I dismiss this appeal and abide by the orders of my Lord.
ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading, in draft, the Judgment just delivered by my learned Brother, Ndukwe-Anyanwu JCA. The issues raised for determination have been exhaustively resolved, and I completely agree with the conclusions reached.
The subject matter in dispute in this appeal is property situate at No 28 Edem Odo Street, Calabar. The Appellant as plaintiff had sued the defendant of the Customary Court seeking a partition of the property between them. The Respondent approached the High Court by way of certiorari seeking to quash the proceedings and judgment of the Customary Court. The trial court quashed the Proceedings and judgment of the Customary Court for want of jurisdiction, hence this appeal. The issues as formulated by both parties border on the jurisdiction of the Customary Court in hearing the matter.
Certiorari is a prerogative order available to the High Court in the exercise of its supervisory control over an inferior court, tribunal or body entrusted with the performance of a judicial or quasi-judicial function to ensure that it does not exceed its jurisdiction or commit irregularities, making its decision bad on the face of it. An order of certiorari or prohibition will lie against anybody or person having a legal duty to determine questions affecting the rights of subjects whenever the duty implies at least that that body or person should act fairly or in accordance with a statutory provision.
An Order of Certiorari will thus issue to quash the decision of on inferior court where it is established that:
(a) the inferior court has acted in excess of its jurisdiction.
(b) there is a breach of the rules of natural justice.
(c) there is an error of law on the face of the plaint filed in the inferior court containing the claim or charge.
In State v Nwaoboshi (2003) 8 MJSC 170, (2003) 11 NWLR (pt.831) 305, the Supreme Court per Uwoifo JSC said:
“It is elementary that certiorari is a prerogative writ of common law origin available to the High court in the exercise of its supervisory control over an inferior tribunal or Court to ensure that it does not exceed its jurisdiction or commit irregularities making its decision bad on its face: See R. v. District Officer/or Kutia People Ex parte Eti Atem (1961) All NLR 51 at 56 per Adeola CJF. The writ is issued in order that the issuing Court may bring the proceedings of the inferior tribunal or Court before it for inspection and if there is due cause disclosed, to quash them.”
See also: Onuzulike v CSD Anambra State (1992) 3 NWLR (PT 232) 791
Jurisdiction is the life blood of any adjudication. Jurisdiction is very fundamental and always a threshold issue. It is the foundation upon which every litigation is laid. The jurisdiction of the court is determined by the plaintiff’s claim as disclosed in the writ of summons; and/or the statement of claim, where it has been filed. See: NV Scheep v. MV “Arz” (2000) 15 NWLR (PT 681) 668; For a court of law or tribunal to have jurisdiction to hear and determine any matter before it, it must satisfy these conditions or have the following ingredients:
(a) it must be properly constituted as to the number or qualification of its membership;
(b) any condition precedent to its exercise of jurisdiction must have been fulfilled;
(c) the subject matter of the case must be within its jurisdiction; and
d) the case or matter must have been brought to the court by the due process the law.
See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
A Customary Court can only exercise jurisdiction if the subject matter submitted for its adjudication is within its jurisdiction. If the Customary Court goes ahead to hear and determine a matter, over which it has no jurisdiction, its proceedings and decision are liable to be quashed. Jurisdiction being the authority a Court has to entertain any matter, if a court acts without jurisdiction, its decision is a nullity and liable to be set aside. See: Madukolu v. Nkemdilim (supra); Ike v. Nzekwe (1975) 2 SC. 1; Mustapha v. Governor of Lagos State (1987) 5 SCNJ. 14: Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 715.
The claim submitted before the Customary Court for adjudication, in this case, was situate in Calabar, an undisputable urban area. Section 39 (1) (a) of the Land Use Act, 1978 is relevant, and provides as follows:
39. (1) The High Court shall have exclusive original jurisdiction in respect of the following proceedings:-
(a) proceedings in respect of any land the subject of a statutory right of occupancy granted by the Military Governor or deemed to be granted by him under this Decree; and for the purposes of this paragraph proceedings include proceedings for a declaration of title to a statutory right of occupancy.
These provisions have been interpreted in Adisa V. Oyinwola (2000) 6 SCNJ 290 at 316, where the Supreme Court, per Ayoola JSC plainly said:
“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.”
In his concurring Judgment, Iguh JSC said of pages 349-350:
“It is beyond doubt from the plain and unambiguous provisions of section 39(1) of the Land Use Act that they vest original and exclusive jurisdiction in the clearest possible terms on the State High Courts in respect, inter alia, of all causes or matters relating to land the subject of a statutory right of occupancy granted by the State Governor or deemed to have been granted by him under that Act.”
The Customary Court therefore had no jurisdiction to entertain a matter pertaining to land situate in an urban area.
For these reasons and for the fuller reasons given in the lead Judgment, I agree with my learned Brother that this appeal is unmeritorious; and hereby affirm the Judgment of the lower court.
I abide by of the Orders made in the lead Judgment.
Appearances
E. Ayi Esq. for the Appellant Holding brief for B. E. OlusegunFor Appellant
AND
K. O. KaluFor Respondent
