PIUS OKOROAFOR & ORS V. E. O. IKEZU & ORS & ORS
(2012)LCN/5751(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of December, 2012
CA/PH/251/2003
RATIO
JURISDICTION: DEFINITION AND SCOPE
The jurisdiction of the Court is the power of the Court to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this power are imposed by the statute under which the Court is constituted and may be extended or restricted by similar means. Jurisdiction is therefore the bed rock or launching pad of any Court in its adjudicatory process. It has been settled through a long line of cases that the issue of jurisdiction is very fundamental as it goes to the competence of the Court or Tribunal. It is a threshold matter. Any action taken by a Court without the requisite jurisdiction will be a nullity however well conducted. A Court will inter alia have the necessary competence to hear and determine a matter if the same is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction. This is as enunciated by the Apex Court in the case of Madukolu vs. Nkemdilim (1962) 2 SCNLR 341 at 348, wherein it held that a Court is competent when:
1. It is properly constituted as regards numbers and qualification of 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.
3. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
The above three (3) conditions must co-exist for the Court to have competence to adjudicate as any defect in competence is fatal; for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the adjudication. See Skenconsult (Nig.) Ltd. vs. Ukey (1981) SC 6; Ishola vs. Ajiboye (1994) 6 NWLR (Pt.352) 506; Western Steel Works Ltd. vs. Iron & Steel Workers Union of Nigeria (1986) 3 NWLR (Pt.30) 617; Odofin vs. Agu (1992) 3 NWLR (Pt.229) 350; Okulate vs. Awosanya (2000) 2 NWLR (Pt.646) 530.PER UWANI MUSA ABBA AJI,(PJ),J.C.A
JURISDICTION: IS DETERMINED BY THE PLAINTIFF’S CLAIM
It is a fundamental principle that jurisdiction of a Court of Law is determined by the Plaintiff’s claim; that is to say, it is the claim before the Court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the Court, Where the action is commenced by way of writ of summons, it is the case as stated in the writ of summons and statement of claim that will be considered and not even the statement of defence. Where the action is commenced by originating summons, it is the questions, reliefs and supporting affidavit that determine the jurisdiction of the Court to hear and determine same. PER UWANI MUSA ABBA AJI,(PJ),J.C.A
JURISDICTION: JURISDICTION IN DECLARATION OF TITLES MATTERS ON LANDS THAT HAVE STATUTORY RIGHT OF OCCUPANCY
The question that may be asked is what is the effect of Legal Notice No. 3 of 1st March, 1998 vis-a-vis the facts and circumstances of this case? Going by the combined effect of the provisions of section 272 of the Constitution of Nigeria, 1999 and Section 39 of the Land Use Act, it is the State High Court that is vested with the jurisdiction to hear and determine matters of declaration of title to land which are subject of statutory right of occupancy which include but not limited to all lands in Urban areas. See Adisa vs. Onyinwola (2000) 6 SCNJ 290; Nnadike vs. Ejire (1994) 1 NWLR (PT 320) 295; Salati vs. Shedu (1986) 1 NWLR (PT 15) 198: and Sadikwu vs. Dalori (196) 4 SCNJ 209.
By Section 39 of the Land use Act, the High court shall have exclusive original jurisdiction in respect of proceedings. in respect of any land the subject of statutory right of occupancy granted by the Governor or deemed to be granted by him under the Act and for the purposes of this paragraph, proceeding include proceedings for 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 Act.
Also by Section 49 of the Act, 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 the Act and proceedings here include 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 the Section. It is clear from the above provisions of Section 41 of the Act, the Customary Court or n any other Court of equivalent jurisdiction in a state is vested with jurisdiction to hear and determine proceedings in respect of Customary Right of Occupancy granted by a Local Government or deemed to be so granted. Consequently, any land which does not fall within the area designated as Urban Area and or which the Governor has not granted Statutory Right of Occupancy may be adjudicated upon by a customary court in respect of a declaration for customary Right of Occupancy.PER UWANI MUSA ABBA AJI,(PJ),J.C.A
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
HARUNA S. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. PIUS OKOROAFOR
2. AMOS CHUKWU
3. E. I. ONYEBUEKE
4. HEZEKIAH CHUKWU Appellant(s)
AND
1. E. O. IKEZU & ORS (Chairman Customary Court Isuochi)
2. A.O.C. UWAOZUOKE (Member Customary Court Isuochi)
3. E. I. Onyebueke (Member Customary Court Isuochi)
4. NWOKE IZUNDU
5. NWANKWO IZUNDU
6. ONWUKAIKE IZUNDU
7. IROABUEKE MADUCHE
8. GODWIN OKOROCHA Respondent(s)
UWANI MUSA ABBA AJI,(PJ),J.C.A, (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Abia State sitting at Isuikwuato, presided over by Hon. Justice N. C. Ohi, delivered on the 15th day of January, 2011, where it dismissed the Appellant’s application for certiorari.
The Appellants as Applicants applied to the High Court for an Order of certiorari to remove the proceedings, including the judgment delivered by the Customary Court, Isuochi on 22/3/99 in Suits CC/10/23/98 and CC/10/41/98, Pius Okoroafor & 2 Ors vs. Nwoke Izundu & 4 Ors (Consolidated) into the High Court for the purpose of quashing the same. The grounds upon which the Appellants sought the afore stated reliefs were, inter alia as follows:
1. That Nwoke Izundu, Nwankwo Izundu, Onwukaike Izundu, Iroabueke Maduche and Godwin Okocha were sued by the Appellants in an action in the Customary Court, Isuochi, claiming inter-alia – a declaration that the Appellants are entitled to the grant of Customary Right of occupancy of the parcels of land known as Okpulo Onye Ume; Azuohoro; Ohia Ajala; Kpurukpu and Ikponto all situate at Umuaku Isuochi. They also claimed N10,000.00 (Ten Thousand Naira) damages as well as an order of perpetual injunction against the Defendants now Respondents.
2. The Defendants/Respondents; Nwoke Izundu, Nwankwo Izundu, Onwukaike Izundu, Iroabueke Maduche and Godwin Okocha sued the Applicants/Appellants in a cross action: CC/10/41/98 in the same Court claiming the same reliefs against the Applicants. The two suits were consolidated.
3. That hearing commenced on the consolidated suits on 21/7/98, six months after the coming into effect of the Abia State legal Notice No. 3 of 1998, cited as Designation of Urban Areas Order, 1998.
4. That the Customary Court had no jurisdiction to hear and determine the suits in view of the Abia State legal Notice No. 3 of 1998 because the piece or parcel of land, the subject matter of the suits are situate in Umuaku, an Urban Area within Isuochi Urban.
5. That the judgment delivered by the Customary Court on 22/3/1999 in suits Nos CC/10/23/98 and CC/10/41/98 (as consolidated) is judgment delivered without jurisdiction.
The application was initially filed against the 1st set of Respondents. On their application, the 2nd Set of Respondents were joined as parties.
After series of adjournments, the Applicants/Appellants argued their application which was unchallenged as the Respondents failed to file any counter affidavit or challenge the application.
In a considered ruling delivered on the 15th day of January, 2001, the learned trial judge refused the application for certiorari and dismissed the same.
The Appellants are dissatisfied with the Ruling of the trial Court and appealed to his Hon. Court upon a lone Ground of appeal to wit:
The learned trial Judge erred in law by holding that the Customary Court, Isuochi, has the jurisdiction to entertain Suit Nos. CC/10/23/98 and CC/10/41/98 when the claims in both suits were no longer triable by the said Court, by virtue of Designation of Urban Area Order 1998.
As is the practice in this Court, parties filed and exchanged briefs of argument. In the Appellant’s brief of argument settled by S. J. Effik, Esq. a lone issue was distilled for determination to wit:
Whether the Customary Court had jurisdiction to hear and determine, suits No. CC/10/23/98, CC/10/41/98, the land, subject matter of the suits having been designated urban land and consequently removed from the Customary Court’s jurisdiction.
No brief of argument was filed by the 1st set of Respondents. The 2nd set of Respondents’ brief of argument was settled by C. Ike Inegbu, Esq. Therein, Learned Counsel distilled two issues for the determination of the appeal as follows:
1. Whether the Appellants who were the Plaintiff’s in the Customary Court can properly challenge the jurisdiction of the Court to entertain the suit.
2. Whether the learned trial Judge was right when he held that the proceedings including the judgment by the Customary Court in Suit Nos. CC/10/23/98 and CC/10/41/98 was done within the jurisdiction of the Customary Court and therefore valid.
At the hearing of the appeal on the 17th October, 2012, learned Counsel for the Appellants, S. J. Effik, Esq adopted and relied on the Appellants brief of argument dated 11/6/2004 and filed on 16/6/2004 but deemed properly filed on the 20/10/2004 and also the Appellants’ reply brief dated 4/8/2010 but deemed properly filed on the 13/3/2012. He further relied on the case of Okonkwo vs. Okonkwo (2011) 1 WRN 1 at 23 and urged the Court to allow the appeal.
The 2nd set of Respondents’ brief of argument settled by C, Ike Inegbu, Esq. is dated 11/2/2008 and filed on the 25/2/2008 but deemed properly filed on the 9/6/2010. Learned Counsel adopted and relied on same and urged the Court to dismiss the appeal.
The 1st set of Respondents did not file any brief of argument, and this appeals is now being determined without their brief of argument pursuant to the order of Court granted the Appellants on the 13/3/2013. The 2nd Set of Respondent will simply be referred to as the Respondents.
I have considered the issues for determination filed by the respective counsel. The Appellants sole issue which is in pari-materia with the Respondent’s issue No. 2 is apt, considering the facts and circumstances of this case.
It is observed that Respondents’ issue No.1 which is whether the Appellants who were the Plaintiffs in the Customary Court can properly challenge the jurisdiction of the Court to entertain the suit, does not arise from the Appellants grounds of appeal. Any issue for determination must arise from the grounds of appeal filed by the Appellants. A Respondent who has not cross appealed has no business formulating issues for determination outside the grounds of appeal filed by the Appellants. In the instant case therefore, the Respondent’s Issue No.one for determination does not arise from the Appellant’s grounds of appeal. The result is that the issue and the argument canvassed thereunder must be and is hereby discountenanced. The Appellant’s reply thereto goes to no issue.
In arguing his sole issue, the Learned Counsel for the Appellants Effik Esq. dwelt on the definition of jurisdiction as defined in Halsburys Laws of England Vol. 10, 4th Edition paragraph 715 at page 327 and adopted and approved by the Supreme Court in the cases of Jacob Ndaeyo vs. Ogunnaya (1977) 1 SC 11 at 24; NBN Ltd and Anor vs. J. A. Shoyoye (1977) ANLR 168 and 175: Izenkwe vs. Nnadozie 14 WACA 361 at 363 and Adeyemi vs. Opeyori (1976) 6 ECSLR 387 at 395-396. He submitted that in determining whether a Court has jurisdiction to entertain a suit, the following basic factors must co-exist:
1. The subject matter of the case must be within the jurisdiction of the Court there must be no feature in the case which prevents this Court from exercising jurisdiction.
2. The case has come before the Court initiated by due process of law upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu vs. Nkemdilim (1962) 11 ANLR 587 at 595; Ndaeyo vs. Godwin Ogunnaya (1979) 11 SC 11 at 24.
Learned Counsel submitted that the issue of jurisdiction is so fundamental as it goes to the competence of the Court. That nothing shall be intended or deemed to be within the jurisdiction of a Customary Court being an inferior Court, but that which is so expressly conferred by statute, He relied on Oloba vs. Akereja (1988) 3 NWLR (PT 84) 508 at 510. Learned Counsel referred to the claims of the Plaintiffs at the Customary Court Isuochi and that of the Defendants who filed a counter claim with similar reliefs to submit that in determining jurisdiction of the Customary Court vis-a-vis this appeal, recourse will be had to the claims of the Plaintiffs before the Customary Court especially the principal relief sought so as to determine if the subject matter of the case is within the jurisdiction of the Court or if there is any feature in it preventing the Court from exercising jurisdiction over the matter.
Learned Counsel submitted that urban area is defined in Section 51 of the land use Act Cap 202 Laws of the Federation 1990 as:
“Such area of the state as may be designated as such by the Governor pursuant to Section 3 of the Land Use Act.”
He submitted that the Military Administrator of Abia State by a Public Notice published in Gazette No. 3 Vol. 3 Vol. 7 of 1st March, 1998 designated some portions of land in the state as Urban Areas for the purpose of the Land Use Act and that also designated in the said Gazette were portions of Land within Usuochi Urban including parcels of land situate in Umuaku which is the subject matter in the suits between the parties therein. Learned Counsel thus submitted that the finding of the learned trial Judge that the Land Use Act did not say once a land falls within an Urban Area, it is only the High Court that shall have jurisdiction to entertain any suit concerning that Land was erroneous including cases relied upon by the Learned trial Judge which according to the learned Counsel considered the jurisdiction of the High Court to hear and determine cases of Customary right of occupancy vis-a-vis Section 41(1) of the Land Use Act like the case of Morakinyo vs. Adesoroyere (1995) 7 NWLR (PT 409) 602 which is a decision totally distinguishable from the issue arising in the instant appeal, which is the jurisdiction of the Customary Court to determine a declaration of title to land in an Urban Area or subject of Statutory Right of Occupancy vis-a-vis Sections 39(1) and 41 of the Land Use Act.
Learned Counsel submitted that Statutory Right of Occupancy as defined under Section 51 the Act is a right of occupancy granted by the Governor pursuant to Section 5(1)(a) of the Act and a deemed Right of Occupancy under Section 34(2) of the Act. He also submitted that a Customary Right of Occupancy is granted by the Local Government in line with Section 6(1) of the Act and also a deemed Customary Right of Occupancy granted by the Local Government in accordance with Section 36(2) of the Act. He cited and relied on Adisa vs. Onyiwola (2000) 6 SCNJ 290 at 347; and Savannah Bank (Nig.) Ltd. vs. Ajilo (1989) 1 NWLR (Pt.97) 305.
Learned counsel thus submitted that a land in an Urban Area cannot be subject of Customary Right of Occupancy. It is his view that by Sections 272 of the 1999 Constitution and Section 39 of the Land Use Act, it is only the High Court that is vested with the jurisdiction to hear and determine matters of Statutory Right of Occupancy, that is land in Urban Areas and that Section 6(1) the Act assigned the duty of granting Customary Right of Occupancy in non-Urban Areas to Local Government. He further submitted that once the Governor exercises his powers under section 3 of the Act and declares an area as ‘Urban Area,, land in such areas are outside the area to be granted Customary Right of Occupancy or deemed right. He thus submitted that the Learned trial Judge was of the view that both the High Court and the Customary Court have concurrent jurisdiction to hear and determine a case in respect of declaration of title to land in Urban areas, which according to him is erroneous in view of the provisions of Section 39(1) and 41(1) of the Land Use Act. He submitted that since land in Urban areas are under the control and management of the Governor, such land cannot therefore become the subject of Customary Right of Occupancy or deemed Customary Right of Occupancy, He relied on the following cases: Adisa vs. Oyinwola (Supra) at 297; Olutunde vs. Adeyoyu (2000) FWLR (Pt.24) 1355 at 1361; and Lang vs. Mohammed (2000) FWLR (Pt. 28) 2152 at 2156. Learned Counsel thus submitted that under the circumstances of this case, it was not necessary for the Lower Court to consider whether or not the State High Court has jurisdiction over land subject of Customary Right of Occupancy as the issue has not arisen and any consideration thereof will amount to embarking on an academic exercise.
Learned Counsel therefore submitted that Section 39(1) of the Act vests original jurisdiction in the High Court in respect of Land the subject matter of Statutory Right of Occupancy and went further to exclude the jurisdiction of any other Court and since the jurisdiction of a Court is as conferred on it by Statute the Customary Court cannot foist on itself the jurisdiction which it has been excluded from under Section 39(1) of the Land Use Act. Learned Counsel submitted that the provisions of Section 39(1) of the Act are to be interpreted in their ordinary, natural grammatical and literal meaning, citing Obioye & Ors. vs. Sa’adu Yakubu & Ors. (1991) 5 NWLR (PT 190) 130 at 256 and that a plain, ordinary and literal interpretation of Section 41 of the Act will show that the jurisdiction exercisable by Customary Courts in Land matters is limited to disputes related to such land, the Right of Occupancy of which is a Customary Right of Occupancy, relying also on Salati vs. Shehu (1986) 1 NSCC 144.
Learned Counsel further submitted that while Section 39 of the Act clearly excludes Area Courts and Customary Courts from exercising jurisdiction in respect of land the subject of a Statutory Right of Occupancy, Section 41 of the Act has redefined the jurisdiction of the Customary Court, such that Customary Courts now have their jurisdiction limited to land subject of Customary Right of Occupancy. He submitted that the learned trial Judge failed to advert his mind to the decision of the Supreme Court in Sadikwu vs. Dalori (1996) 4 SCNJ 209 at 220 which was reaffirmed in Adisa vs. Oyinwola (2000) FWLR (PT.8).
Learned Counsel further submitted that the land in dispute in this case was designated Urban Land by the Governor of Abia State on the 16th April, 1998, vide Gazette No.3 Vol. 7 dated 4th June, 1998, six months before the institution of the suit at the Customary Court Isuochi. He submitted that the reliefs sought in the Customary Court by the parties in the consolidated suits were for a declaration of Customary Right of Occupancy over the land in dispute which had been designated as land in Urban Area. He referred to the following cases: Chukujekwu vs. Olalere (1992) 2 NWLR (PT 222) 86 at 88; Nnadika vs. Ejire (1994) 1 NWLR (PT 320) 295 at 297; Adeniran vs. Alao (1992) 2 NWLR (PT 223) 350 at 354; tang vs. Mohammed (2000) FWLR (PT 28 2152 at 2155; Salati vs. Shehu (Supra) and Adegoke vs. Adesina (2000) FWLR (PT 29) 2427 at 2430, to further submit that a determination of whether a piece of land is subject to grant of either Statutory Right of Occupancy or Customary Right of Occupancy does not depend on the tenural con or character of the land concerned but its geographical location as demarcated or designated by the Governor or any other body or person on his behalf. The Court was urged to resolve this issue in favour of the Appellants.
In his response, the Learned Counsel for the 2nd Set of Respondents, Inegbu, Esq. submitted that the Land Use Act vested on the High Court and the Customary Court jurisdiction in respect of Land matters as provided in Sections 39(1)(a) and 41 of the Land Use Act and submitted that the jurisdiction of the Court to entertain suit relating to land is the right of occupancy involved. He referred to Morakinyo vs. Adesoroyero (1995) 7 NWLR (PT 409) 602 to submit that in determining whether a Court has jurisdiction in land matters, the jurisdiction of the Court is not based on whether the Land in dispute is in an Urban Area, rather the criteria is on the source or root of title. He submitted that in determining what the root of title is or which Court has jurisdiction to entertain the suit, the Court has to look at the writ of summons and the statement of claim which are the determinants of the Courts jurisdiction. The following cases were relied upon: Adeyemi Vs. Opeyon (1976) 9 – 10 SC 31; Akereja vs. Oloba (1986) 2 NWLR (Pt.22) 257; Oladejo vs. Adeyemi (2000) 3 NWLR (PT 720) 25: Anason Ibeto Int. Ltd vs. Vimex Imp-Exp (2001) 10 NWLR (Pt.720) 227; A.G. Federation vs. A.G. Abia State (2001) 11 NWLR (Pt.725) 689 at 729. He submitted that in the instant case, the Court is only required to look at the Appellants’ claim in the Customary Court to determine whether or not the Court has jurisdiction to entertain the Suit. He referred also to Odugbo vs. Abu (2001) 14 NWI-R (Pt.732) 45.
Learned counsel referred to the Appellants claim at the Customary Court and the Counter claim and submitted that they are both for declaration to the grant of customary Right of Occupancy in respect of the lands in dispute. He submitted that the Appellants were claiming the land the subject matter of the suit at the Customary Court on the basis of using or occupying same in accordance with Customary Law. His view is that the Customary Court was a proper Court in which to bring the said action and that the Court had jurisdiction to entertain the Suit. Learned Counsel submitted further that the jurisdiction of Area Courts and Customary Courts under Section 41 of the Land Use Act is not limited to dispute arising from land the subject of Customary Right of Occupancy granted by the Local Government alone but covers proceedings in respect of Customary Right of Occupancy deemed to be granted under section 36(2) of the Act. He referred to Adisa vs. Oyinwola (2006) 10 NWLR (PT 674) 116 at 164.
Learned counsel submitted further that section 5(1) of the Land use Act 1978 defined Customary Right of Occupancy not solely in terms of grant but as a right of a person or Community lawfully using or occupancy land in accordance with Customary Law which includes a Customary Right of Occupancy granted by a Local Government under the Act. It is his view that Customary Right of Occupancy does not exclusively mean a Customary Right of Occupancy granted by a Local Government under the Act, but also the right of a person or Community lawfully using or occupying land in accordance with Customary Law. What this means according to the Respondent is that where the claim of the Plaintiff rely on customary Right of occupancy or that they use or occupy the land in accordance with Customary Law, then the Customary court will have jurisdiction to entertain the suit. It is also his view that from the claim and the evidence led at the trial, it is clear that the case of parties, that is the subject matter of the suit is Customary Land and the Customary Court had jurisdiction to entertain the suit.
On what jurisdiction of a Court means, Learned Counsel referred to the following cases: Shell Petroleum Dev. Co. Nig. Ltd vs. Isaiah (2001) 11 NWLR (PT 723) 168; Action Congress vs. INEC (2007) 18 NWLR (PT.1065) 42 and Ajao vs. Alao (1986) 5 NWLR (PT 45) 802. He urged the Court to dismiss this appeal and affirm the judgment of the Lower Court.
It is observed that throughout the length and breadth of the Respondents, argument, no reference was made to the Abia State legal Notice No. 3 of 1998 cited as Designation of Urban Areas order, 1988 which forms the basis and foundation of this appeal.
I have carefully considered the submissions of Learned Counsel for the Appellants and that of the Respondents including authorities cited by the learned counsel. The issue in contention is the jurisdiction of the Customary Court to hear and determine suit Nos. CC/10/23/98 and CC/10/41/98, the land the subject matter having been designated urban land and consequently removed from the jurisdiction of the Customary Court.
The jurisdiction of the Court is the power of the Court to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this power are imposed by the statute under which the Court is constituted and may be extended or restricted by similar means. Jurisdiction is therefore the bed rock or launching pad of any Court in its adjudicatory process. It has been settled through a long line of cases that the issue of jurisdiction is very fundamental as it goes to the competence of the Court or Tribunal. It is a threshold matter. Any action taken by a Court without the requisite jurisdiction will be a nullity however well conducted. A Court will inter alia have the necessary competence to hear and determine a matter if the same is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction. This is as enunciated by the Apex Court in the case of Madukolu vs. Nkemdilim (1962) 2 SCNLR 341 at 348, wherein it held that a Court is competent when:
1. It is properly constituted as regards numbers and qualification of 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.
3. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
The above three (3) conditions must co-exist for the Court to have competence to adjudicate as any defect in competence is fatal; for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the adjudication. See Skenconsult (Nig.) Ltd. vs. Ukey (1981) SC 6; Ishola vs. Ajiboye (1994) 6 NWLR (Pt.352) 506; Western Steel Works Ltd. vs. Iron & Steel Workers Union of Nigeria (1986) 3 NWLR (Pt.30) 617; Odofin vs. Agu (1992) 3 NWLR (Pt.229) 350; Okulate vs. Awosanya (2000) 2 NWLR (Pt.646) 530.
It is a fundamental principle that jurisdiction of a Court of Law is determined by the Plaintiff’s claim; that is to say, it is the claim before the Court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the Court, Where the action is commenced by way of writ of summons, it is the case as stated in the writ of summons and statement of claim that will be considered and not even the statement of defence. Where the action is commenced by originating summons, it is the questions, reliefs and supporting affidavit that determine the jurisdiction of the Court to hear and determine same. In the instant case, the suit was commenced before the Customary Court Isuochi and the claims before that Court were as follows:
(a) A declaration of this Honourable Court that the Plaintiffs as the principle members of Umukororude kindred are the persons entitled to the grant of Customary Right of Occupancy and use of those pieces or parcels of Land known and called as follows:
(a) Okpulu Onyeume; (b) Azu Ohoro; (c) Ahia Ajala; (d) Kpurukpu, and (e) Ikpontu.
All situate and lying at Obagu, Umuaku Isuochi within the jurisdiction of this Hon. Court.
(b) N10,000.00 (Ten Thousand Naira) only being damages for trespass on the said pieces or parcels of land at various dates from 1990 through 1998 by the Defendants.
(c) Perpetual injunction permanently restraining the Defendants, their servants or agents from further trespass into the pieces or parcels of land.
The Defendants in the Customary Court now Appellants also filed a counter claim with similar facts. (See page 15 of the record of appeal). The claim before the Customary Court was filed on the 4th May, 1998 and the counter claim filed 14th July, 1998. See pages 13 and 15 respectively. Both Suits were consolidated and considered judgment delivered on the 23rd March, 1999.
The Appellants as Applicants went to the High Court by way of motion on notice for an order of certiorari to remove the proceedings including the judgment delivered by the Customary Court Isuochi on 22 March, 1999 in the consolidated suits for the purpose of being quashed. The grounds upon which the application was brought include inter alia that:
1. That hearing commenced in the consolidated Suits on 21/7/98, Six months after the coming into effect of the Abia State Legal Notice No. 3 of 1998 cited as Designation of Urban Areas Order, 1988.
2. That the 1st set of Respondents have no jurisdiction to hear and determine the Suits in view of the Abia State Legal Notice No. 3 of 1998 because the pieces or parcels of land, the subject matter of the Suits are situate in Umuaku an Urban Area within Isuochi Urban.
3. That the judgment delivered by the 1st set of Respondents on the 22nd March 1999 in Suit Nos. CC/10/23/98 and CC/10/41/98 (as consolidated) is judgment delivered without jurisdiction.
In its ruling, the High court refused the application on the ground that the Customary had jurisdiction to demine the suits before it.
In determining the jurisdiction of the Customary Court Isuochi vis-a vis this appeal, recourse must be had to the claims of the Plaintiffs before the Customary Court especially the principal relief sought so as to determine if the subject matter of the case is within the jurisdiction of the Customary Court or if there is any feature in it preventing the Customary Court from exercising jurisdiction over the matter.
According to the Appellants, the hearing of the consolidated suits commenced on the 21/7/1998, six months after coming into effect of the Abia State Legal Notice No. 3 of 1998, cited as Designation of Urban Areas Order, 1998.
The expression ‘urban Area’ is defined in section 51 of the Land use Act, Laws of the Federation 1990 as such area of the state as may be designated as such by the Governor pursuant to Section 3 of the Act. Section 3 of the Act empowers the Governor of a State to designate parts of the area of the territory of the State constituting land in an Urban Area by an order published in the state Gazette. In the exercise of this power, the Military Administrator of Abia State by a public Notice published in Gazette No. 3 Vol. 7 on 1st March, 1998 designated some portions of Land in the State as Urban Areas for the purpose of the land Use Act. Designated also in the said Gazette were portions of Land situate in Umuaku and which is the subject matter in the suits between the parties. See Exhibit ‘A’. Gazette No. 3 of 1998.
The question that may be asked is what is the effect of Legal Notice No. 3 of 1st March, 1998 vis-a-vis the facts and circumstances of this case? Going by the combined effect of the provisions of section 272 of the Constitution of Nigeria, 1999 and Section 39 of the Land Use Act, it is the State High Court that is vested with the jurisdiction to hear and determine matters of declaration of title to land which are subject of statutory right of occupancy which include but not limited to all lands in Urban areas. See Adisa vs. Onyinwola (2000) 6 SCNJ 290; Nnadike vs. Ejire (1994) 1 NWLR (PT 320) 295; Salati vs. Shedu (1986) 1 NWLR (PT 15) 198: and Sadikwu vs. Dalori (196) 4 SCNJ 209.
By Section 39 of the Land use Act, the High court shall have exclusive original jurisdiction in respect of proceedings. in respect of any land the subject of statutory right of occupancy granted by the Governor or deemed to be granted by him under the Act and for the purposes of this paragraph, proceeding include proceedings for 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 Act.
Also by Section 49 of the Act, 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 the Act and proceedings here include 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 the Section. It is clear from the above provisions of Section 41 of the Act, the Customary Court or n any other Court of equivalent jurisdiction in a state is vested with jurisdiction to hear and determine proceedings in respect of Customary Right of Occupancy granted by a Local Government or deemed to be so granted. Consequently, any land which does not fall within the area designated as Urban Area and or which the Governor has not granted Statutory Right of Occupancy may be adjudicated upon by a customary court in respect of a declaration for customary Right of Occupancy.
In the circumstances, the relevant Law applicable in respect of a cause of action is the Law in force at the time the cause of action arose. Whereas the Law relating to jurisdiction of a Court is the prevailing Law when the action was instituted or heard. The Law in both situations may not co-exist. In the instant case, the action was instituted on the 4th day of May, 1998 at the Customary Court Isuochi and the Respondents filed their counter claim on the 14/7/1998. The Abia State Legal Notice No. 3 of 1998 came into force on the 1st day of March, 1998. It is clear that the Legal Notices No. 3 of 1998 came into effect on the 1st March, 1998 before the institution of the suit at the Customary Court Isuochi which hitherto to had jurisdiction to entertain the suit. Land in Urban Area is subject of Statutory Right of Occupancy and it is only the High Court that grant a statutory Right of occupancy. See Anaedobe vs. Ofidile (2001) 5 NWLR (PT 706) 365. From a clear examination of the provisions of the Land Use Act, the conclusion that follows is that the Appellant’s right can only be ventilated in an action before the High Court of Abia State as the only Court vested with the jurisdiction at that material time to determine the rights of the parties in respect of land in an Urban Area subject to a Statutory Right of Occupancy. This is so because, the Abia State Legal Notice No. 3 of 1998 determines the jurisdiction of the Court in respect of lands in Urban Areas. In other words, jurisdiction under the Land Use Act is determined by identifying the location of the Land, whether it is in an Urban or Non Urban Area. See Okonkwo vs. Okonkwo (2011) 1 WRN 1 at 23.
In the instant case, the Learned trial Judge failed to advert his mind to the case of Sadikwu vs. Dalori (1996) 4 SCNJ 209 at 220 which decision was reaffirmed in Adisa vs. Oyinwola (2000) FWLR (PT 18) 1349 on the power conferred on the Governor of State to designate any land under his management and control by virtue of Section 2 of the Land Use Act as an Urban Area. Where that is done the jurisdiction in respect of proceedings affecting such land became invested in the High Court since the certificate granted or deemed granted is a Statutory Right of Occupancy under the Act. The fact that the claims before the Customary Court Isuochi were for declaration to Customary Right of Occupancy, the land the subject of Customary Right of Occupancy has been designated by the Abia State Governor as Urban Area which is generally under the management and control of the Military Governor and subject of Statutory Right of Occupancy.
The jurisdiction exercisable by Customary Court in land matters is limited to disputes related to such land, the Right of Occupancy of which is a Customary Right of Occupancy. In other words, the jurisdiction applies only to matters affecting land, the Right of Occupancy over which is granted by a Local Government. Accordingly, Customary Courts do not have jurisdiction to determine any dispute pertaining to determination of any dispute pertaining to land in designated Urban Areas. See Zangina vs. Comm. Of Works Borno State (2001) 9 NWLR (Pt.718) 460; Salati vs. Shehu (1986) 1 NWLR (PT 15) 198 at 211. I now therefore resolve this sole issue in favour of the Appellants. For the above reasons, I hold that the Customary Court has no jurisdiction to determine the Suits leading to this appeal. It is the State High Court that has the jurisdiction. The appeal succeeds and it is hereby allowed. The decision of the High Court dismissing the application of certiorari to quash the proceedings including the judgment of the Customary Court delivered on the 15th day of January 2001 is hereby set aside.
I make no order as to costs.
MOJEED A. OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother UWANI MUSA ABBA AJI, JCA. I agree with the reasoning and conclusion and abide with the consequential orders.
This appeal concerns the effect of the Abia State Legal Notice No. 3 of 1998 which came into effect on the 1st day of March 1998 on the subject matter of the suit – Land, which was hitherto designated a Non-Urban Area. The Plaintiff’s Appellant’s suit instituted on the 4th day of May 1998 at the Customary Court Isuochi was caught up by the Legal Notice because as at the date of the institution of the plaintiff’s action in the Customary Court, the land, the subject matter of the suit has been reclassified as land in Urban Area, became subject of Statutory Right of Occupancy and any suit thereon would have lied in the High Court of Abia State.
For this reason, I agree with the lead judgment that the trial that took place in the Customary Court was taken without jurisdiction and it is a nullity. This is because the question of jurisdiction of court is a radical and crucial question of competence, if a court has no jurisdiction to hear and determine a case, the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be because a defect in competence is not intrinsic, but extrinsic to the entire process of adjudication.
Jurisdiction of court is therefore considered to be the nerve centre of adjudication, the blood that gives life to an action in court of law in the very same way that blood gives life to the human being.
See: Daplanlong vs. Dariye (2007) 8 NWLR (Pt. 1036) 332 SC.
For these and the fuller reasons contained in the lead judgment of my learned brother, I also allow the appeal.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Uwani Musa Abba Aji, JCA (Presiding) had obliged me a copy of the judgment just delivered, which I read in advance.
My learned brother has admirably dealt with the pertinent issue that arose for determination in this appeal. My learned brother had determined that:
“In the circumstances, the relevant law applicable in respect of a cause of action is the law in force at the time the cause of action arose. Whereas the law relating to jurisdiction of a court is the prevailing law when the action was instituted or heard.”
See page 18 lines 6-9 of the judgment
I agree entirely with my learned brother and also agree that, since the Respondents’ action at the lower court was instituted on the 04/5/1998 at the Customary Court, Isuochi, while the Abia State Legal Notice No. 3 of 1998 came into force on the 1st day of March, 1998, the Legal Notice No. 3 of 1998 is the applicable law governing the jurisdiction of the Customary Court over the subject matter. In that respect at the time the Customary Court Isuochi assumed jurisdiction over the land, such jurisdiction no longer inhered to it, having been by implication ousted by the Abia State Legal Notice No. 3 of 1998.
It is for the above stated reason and the fuller reasons given by my learned brother in the lead judgment, that I agreed that the appeal has merit.
It succeeds and is accordingly allowed by me. I abide by the consequential orders made thereon, including the order on costs.
Appearances
S. J. Efik, Esq.For Appellant
AND
No appearance for the 1st of Respondents
I. C. Inegbo, Esq, with C. U. Nwanosike, Esq. for the 2nd set of RespondentsFor Respondent
