ROBINSON NWANGWU v. EMENIKE UKACHUKWU & ANOR(2000)

ROBINSON NWANGWU v. EMENIKE UKACHUKWU & ANOR

(2000)LCN/0696(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of February, 2000

CA/E/46/97

JUSTICES

EUGENE CHUKWUEMEKA UBAEZONU Justice of The Court of Appeal of Nigeria

JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

Between

ROBINSON NWANGWU Appellant(s)

AND

EMENIKE UKACHUKWU
2. WILFRED OKEZIE Respondent(s)

RATIO

THE DOCTRINE OF STARE DECISIS

In Clement v. Iwuanyanwu (1989) 3 NWLR (Pt.107) 39 at 54, the Supreme Court has equally defined the second doctrine, stare decisis, to mean abiding by a former precedent where same points come again in litigation. The doctrine presupposes that the law has been solemnly declared and determined in the former case thereby, in hierarchical judicial arrangement, precluding judge of subordinate courts from changing what has been determined.
The use of precedent and stare decisis, being necessarily indispensable tools in the determination of what the law is, can hardly be over-emphasized. As the trial Judge himself noted, it is no gainsay that subordinate Courts are bound by decisions of the Supreme Courts. His duty where such decision has been shown to exist is to loyally apply the hierarchical decision of the Apex Court. Adherence to precedent is one of the strongest principles of judicial policy which provides for an orderly and reliable development of legal rules. See Aeroflat v. UBN (1986) 3 NWLR (Pt. 27) 188 at 199; A.G Ogun State v. Egenti (1986) 3 NWLR (Pt. 28) 265 at 272-273 Pascal & Ludwig Inc. v. Kirett (1975) 1 NMLR 74 at 78 and State v. Ilori & 2 Ors. (1983) 1 SCNLR 94, 2 SC 155. Layanju v. Araoye (1961) 1 SCNLR 416 Osumanu v. Seidu (1949) 12 WACA 437. PER MUHAMMAD, J.C.A.

WHETHER OR NOT THE HIGH COURT HAS ORIGINAL JURISDICTION IN RESPECT OF LAND MATTERS SUBJECT TO CUSTOMARY RIGHT OF OCCUPANCY

So it must be stated that, the Supreme Court in Sadikwu v. Dalori has provided the principle that the High Courts, irrespective of their geographic locations in this country, have no original jurisdiction in respect of matters on land which are subject of customary right of occupancy. This is the law inspite of the inadvertence of the apex Court to S.236 of the 1979 Constitution. It continues to be so till such a moment the Supreme Court says it is not by overruling itself. PER MUHAMMAD, J.C.A.

M.D. MUHAMMAD, J.C.A.: (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of G.U. Ononiba J, of the Anambra High Court sitting at Nnewi. The ruling is dated 14th November, 1996.
At the Court below, the Respondents as plaintiffs had claimed as follows:-
1) A declaration that the plaintiffs are entitled as owners in possession to the customary right of occupancy in respect of the piece or parcel of land known as and called Ukpuno Ejiogu in Umuezedom, Ubahu Okija, within jurisdiction (sic) better described and more particularly delineated in the survey plan No. MEC/1838/84 filed with the statement of claim, annually valued at N10.00.
(2) The sum of N500 for trespass.
(3) Perpetual injunction restraining the Defendant, his agents and/or servants from further acts of trespass on the said land.
Pleadings were ordered, filed and exchanged. Thereafter, the Appellant as Defendant by his notice of motion contested the jurisdiction of the lower Court. He prayed the lower Court to strike out suit No.HN/52/83. The land, the subject matter of the suit, was situated in a rural area and therefore not within the jurisdiction of the Court.
In a considered ruling the Court-overruled Appellant’s objection to the exercise of its jurisdiction. Let me for case of reference reproduce extensively the ruling of the lower Court as reflected at p.26-31 of the record of Appeal. The ruling reads in part thus:
“…The present application to strike out the suit No. HN/52/83 is predicated on the recent decision of the Supreme Court in Sadikwu v. Dalori (1996) 4 SCNJ 209. The claim in Dalori’s case supra includes an order that the plaintiff is the lawful owner of a piece of land located in a rural area, which is a subject of customary certificate of occupancy. The jurisdiction of the High Court to entertain the case was challenged. Judgment was given for the plaintiff but on appeal to the Court of Appeal, the appeal was allowed. The Supreme Court considered the provision of S. 39 and 41 of the Land Use Act 1978 together with S.41(2) of the Land Tenure Law of Northern Nigeria applicable to Borno State and came to the conclusion that High Court in Borno State lacks jurisdiction to deal with land matters which are subject to customary right of occupancy. If all things were equal, there would have been no need for further argument as the supreme Court’s decision binds every Court in Nigeria. There is however an aspect of the matter that cannot be treated lightly. (Italics supplied for emphasis).
The trial Court in its ruling further examined the import of S.13 of the Anambra State High Court Edict No. 16 of 1987, S.66 of the Anambra State Customary Court Edict No.6 of 1984 and S.236 of the 1979 Constitution and concluded by dismissing the Appellant’s objection to the exercise of the Court’s jurisdiction.
The Appellant being dissatisfied filed the present appeal.
The Appellant’s two grounds of appeal are hereunder reproduced without their particulars:-
Ground One
That the trial Court erred in law when it dismissed the defendant/appellant’s application requesting the trial Court not to try suit No. HN/52/83 for lack of jurisdiction having regard to the recent decision in the case of Sadikwu v. Dolori (1996) 4 SCNJ 209.
Ground Two
That the trial Court misdirected itself on the law when it distinguished suit No. HN/52/83 from Sadikwu v. Dalori (supra).
Parties to this appeal filed and exchanged briefs. These were adopted as arguments for the appeal, Appellant appeared to have formulated four issues while Respondents on their part raised three issues for the determination of this appeal. An examination of the issues raised by the two reveals only one fundamental issue upon which the fate of the appeal rests viz: Having regard to the Supreme Court’s decision in Sadikwu v. Dalori is the lower Court’s ruling dated 14th November, 1996 correct in law?
Not surprisingly, Appellant in his brief argues that the lower Court’s ruling is manifestly wrong. Appellant contends that the clear and express wordings of S.39 and S.41 of the Land Use Act as interpreted in Dalori’s case leaves no room for the decision of the trial Court.
In his reply brief, Appellant lustily argues that S.13 of the Anambra State High Court Law referred to cannot be the basis of the jurisdiction the lower Court sought to exercise. The Court, the Appellant further contends, cannot also assume jurisdiction under the guise of S.236 of the 1979 Constitution. Appellant relies on Sadikwu v. Dalori (supra), Salati v. Shehu (1986) 1 NWLR (Pt.15) 198; Visinoni & Co. Ltd & Anor v. National Bank Nigeria Ltd (1977) 5 FCA 60 to urge us to allow the appeal.
In Respondents view, S.41 of the Land Use Act 1979 stands in conflict with S.236 of the 1979 Constitution and must be so declared. Respondents further argue that the section did not expressly exclude State High Court from exercising jurisdiction in matters pertaining to land the subject of customary right of occupancy.
Lastly, Respondents argue that the Supreme Court did not either in Dalori’s case or in its recent decision in Oyeniran v. Egbetola (1997) 5 NWLR (Pt.504) 122: 5 SCNJ 94 consider the effect of legislations like S, 13 of the Anambra State High Court Edict No.16 of 1987 in arriving at the decision it did. The decisions, therefore, cannot be held to be applicable to the matter at hand. Respondents ask that the appeal he dismissed.
This appeal has again brought to the fore the important role which the twin doctrines of precedent and stare-decisis play in our legal system. By the first doctrine, where facts in a subsequent case are same, similar or close as facts in an earlier case that has been decided upon judicial pronouncements in the earlier case subsequently utilized to govern and determine the decision in the subsequent case.
In Clement v. Iwuanyanwu (1989) 3 NWLR (Pt.107) 39 at 54, the Supreme Court has equally defined the second doctrine, stare decisis, to mean abiding by a former precedent where same points come again in litigation. The doctrine presupposes that the law has been solemnly declared and determined in the former case thereby, in hierarchical judicial arrangement, precluding judge of subordinate courts from changing what has been determined.
The use of precedent and stare decisis, being necessarily indispensable tools in the determination of what the law is, can hardly be over-emphasized. As the trial Judge himself noted, it is no gainsay that subordinate Courts are bound by decisions of the Supreme Courts. His duty where such decision has been shown to exist is to loyally apply the hierarchical decision of the Apex Court. Adherence to precedent is one of the strongest principles of judicial policy which provides for an orderly and reliable development of legal rules. See Aeroflat v. UBN (1986) 3 NWLR (Pt. 27) 188 at 199; A.G Ogun State v. Egenti (1986) 3 NWLR (Pt. 28) 265 at 272-273 Pascal & Ludwig Inc. v. Kirett (1975) 1 NMLR 74 at 78 and State v. Ilori & 2 Ors. (1983) 1 SCNLR 94, 2 SC 155. Layanju v. Araoye (1961) 1 SCNLR 416 Osumanu v. Seidu (1949) 12 WACA 437.
It must unhesitatingly be stated that, the decision in Sadikwu v. Dalori will avail the appellant if answers to all the questions posed by this appeal are provided by the Apex court in the case relied upon.
That facts of the case in Sadikwu v. Dalori are as contained in the ruling of the lower Court the relevant portion of which was reproduced supra. In Dalori’s case what hitherto in Salati v. Shehu was the obiter dictum of the Apex court per Karibi-Whyte, having been adopted and applied, became and has continued to be the binding legal principle applicable to such facts as those giving rise to the present appeal. See Oyeniran v. Egbetola (1997) 5 NWLR (Pt.504) 122 at 130 and 132 Karibi-Whyte’s dictum is as follows:-
S.39(1) specifically relates to proceedings in respect of any land subject of a statutory right of occupancy granted by the Military Governor or deemed granted”. On the other hand, S.41 confers jurisdiction on area Court or customary Court or Courts of equivalent jurisdiction in respect of customary right of occupancy granted by a local government under this Act. There is no ambiguity in the two sections that the exclusive original jurisdiction in respect of land held under statutory right of occupancy is vested in the High Court of the State, whereas jurisdiction in respect of customary right of occupancy is vested in the Area customary Courts. The exercise of these jurisdiction will seem to me mutually exclusive. There is no doubt therefore that one cannot exercise the jurisdiction of the other.
(italics supplied for emphasis),
In the case at hand, it is not in doubt that the land in dispute is subject of customary right of occupancy coming fully and clearly within the purview of S. 41 of the Land Use Act. In applying the principle adopted in Sadikwu’s case, the Court below was manifestly wrong to have held that it could assume jurisdiction. Jurisdiction pertaining to land matters the subject of customary right of occupancy by virtue of S.41 of the Land Use Act as interpreted by the Apex Court in this country can only be exercised by the Area Customary Courts or Courts of equivalent jurisdiction. This category has been held to exclude the High Court of a State by virtue of S. 41 of the Land Use Act.
The ruling of the Court below went beyond its consideration of s.41 of the Land Use Act. The Court further considered the provisions of S.13 of the Anambra State High Court Law as provided for by Edict No.16 of 1987, S. 66 of the Customary Court Edict No. 6 of 1984 and S.236 of the 1979 Constitution. S.13 of the Anambra State High Court Law, Edict No. 16 of 1987 provides as follows:-
No jurisdiction conferred upon magistrates Court, by any written law shall in any way restrict or affect the jurisdiction of the Court but judges of the court shall have, in all cases and matters, civil and criminal, an original jurisdiction concurrent with the jurisdiction of the magistrate courts”. S.66 of the Anambra State Edict No. 6 of 1984 provides:-
“The jurisdiction of a customary Court under this Edict to try criminal and civil causes or matter not being cases based on customary law does not affect the original jurisdiction of the magistrates court or High court to try such cases, and jurisdiction to try such cases shall be exercised concurrently by the customary Court, magistrates Courts and High Court, except as may be provided by any written law”.
(Italics supplied for emphasis).
The finding of the Court below in its application of the two sections reproduced above is outlined at page 29-30 of the print record. A combined reading of the two sections clearly vests concurrent jurisdiction in the High Court, magistrate court and Customary court in land matters in rural areas of Anambra State, the provision of S. 41 of the Land Use Act and the interpretation given on same by the Supreme court in Salati and Dalori supra not withstanding.
It is particularly glaring that S.13 of Anambra State Edict No. 16 of 1987 does stand in conflict with S.41 of the Land Use Act. S. 41 of the Act provides as follows:
41 … An area Court or customary Court or other Court of equivalent 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 include proceedings for a declaration of title to a customary right of occupancy and all laws including rules of Court regulating practice und procedure of such Courts shall have effect with modifications as would enable effect to be given to this section.
(Italics supplied)
The Land Use Act, extra-ordinary a statute as it is, has been adjudged a federal enactment. It has remained so the fact of its entrenchment in the 1979 Constitution not withstanding. See Lemboye v. Ogunsiji (1990) 6 NWLR (Pt.155) 210 and Nkwocha v. Governor of Anambra State (1984) 1 SCNLR 634.
The Anambra State High Court Law is a State Law and by virtue of S.274(4)(b) of the 1979 Constitution an existing legislation. Any state legislation which seeks to confer jurisdiction on the State High Court as does the Anambra State High Court Law would be in conflict with the provision of S.41 of the Land Use Act. The legislation rather than give effect to S.41 of the Act, would extend the section. By the doctrine of covering the field, S.41 of the Land Use Act will be made to prevail over the provision of such a state legislation. See Salati v. Shehu (supra); A.G. Ogun State v. A.G. Federation (1982) 3 NCLR 166 at 179; and A.G. Ogun State v. Alhaja Aberuagba & Ors. (1985) 1 NWLR (Pt.3) 395.
In the light of the foregoing, the assumption of jurisdiction by the Court below cannot be justified by reference to the two state legislations, which the court sought to invoke.
It is instructive to state that the Supreme Court did not consider the provision of S.236(1) of the Constitution vis-a-vis S.41 of the Land Use Act in arriving at the decision in Sadikwu v. Dalori. The section provides-
“236(1) subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a state shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person”.
Serious doubts can rightly be entertained as to whether the Court had provided a legal principle which, by the doctrine of stare decisis, the court below was bound to apply to the facts upon which the present appeal has been built.
This Court in at least two previous occasions had to be immensely agitated by the import of S.236(1) of the 1979 Constitution and the effect of non-consideration of same by the Supreme Court in Salati v. Shehu; Sadikwu v. Dalori and Oyeniran v. Egbetola supra) See Ebiteh v. Obiki (1992) 5 NWLR (Pt.243) 599 and Nelson v. Ebanga (1998) 8 NWLR 701.
I am not aware of any subsequent Supreme Court’s decision wherein the issue was addressed.
In the instant case, Respondents have argued both at the Court below and in their brief for the purposes of this appeal, that by virtue of S.236(1) of the 1979 constitution the High Court of Anambra State has jurisdiction to entertain suits in matters relating to land the subject of customary right of occupancy. To accede to Respondents’ submission has become almost legally irresistible.
The temptation to uphold Respondents’ submission further soars, if one considers the interpretation given to S.236 of the 1979 Constitution both by this Court and the Supreme Court itself. The State High Courts by these decisions have been vested with unfettered and unlimited jurisdiction.
See Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 542 and Savannah Bank of Nig. Ltd. v. Pan Atlantic Shipping & Trans. Ltd. (1987) 1NWLR (Pt.49) 212 at 230.
The decisions in Sadikwu v. Dalori (supra) and subsequently, Oyeniran v. Egbetola clearly place a restriction on the unlimited nature of the jurisdiction of State High Courts as provided by S.236 of the 1979 Constitution.
My learned brother Ubaezonu, J.C.A in his characteristically forthright but highly informed manner in Nelson V. Ebanga (supra) opined that the decision in Sadikwu v. Dalori (supra) was given per incuriam S.236 of the 1979 Constitution.
I feel tempted to come this far with him.
Supreme Court decisions in Tsamiya v. Bauchi Native Authority (1957) NRNLR 72 at 83, and Atolagbe v. Awuni (1997) 9 NWLR (Pt.522) 536, 7 SCNJ, restrain me from going that far.
I wish to recall for the purpose of this appeal, the dictum of Jibowu, F.C.J in Tsamiya v. Bauchi Native Authority (supra). It is thus:-
“In the judgments in Fagoji’s case we observe that the learned Chief Justice and members of the Court… refused to follow the decision of the West African Court of Appeal in Ghishiwagana v. Borno Native Authority 14 WACA 587 because they considered that the decision was reached per incuriam…There is no precedent of their refusing to follow a previous decision of the West African Court of Appeal on the subject matter of the inquiry because they consider that decision had been reached per incuriam.
With respect to the learned Chief Justice and other members of the court, it must be pointed out that it is not for an inferior court to say that a decision of the higher court was reached per incuriam; that is a privilege of the Higher court if, after reconsidering its former decision; it is satisfied that the previous decision had been reached per incuriam”.
So it must be stated that, the Supreme Court in Sadikwu v. Dalori has provided the principle that the High Courts, irrespective of their geographic locations in this country, have no original jurisdiction in respect of matters on land which are subject of customary right of occupancy. This is the law inspite of the inadvertence of the apex Court to S.236 of the 1979 Constitution. It continues to be so till such a moment the Supreme Court says it is not by overruling itself. It is from this target that one determines, the fate of the appeal. Hard and painful as it is to swallow, it must he stated that the court below was in error, having regard to Dalori’s case, to have held that it had original jurisdiction in land matters the subject of customary right of occupancy.
Resultantly, the two grounds of appeal succeed. I resolve the issues raised in the appeal in favour of the Appellant. The ruling of the Court below is set aside.
I assess cost at N2,000.00 in favour of Appellant.

UBAEZONU, J.C.A.: This appeal once again raises the furore generated by the twin cases of Sadikwu v. Dalori (1996) 5 NWLR (Pt.447) 151, and Oyeniran v. Egbetola (1997) 5 NWLR (Pt.504) 122 as regards the original jurisdiction of the High Court of a State with respect to lands subject to customary right of occupancy under the land Use Act 1978, Both cases were decisions of the Supreme Court of this country. It would be an act of judicial impertinence for this Court or, indeed, any Court of this land to refuse to follow the decisions no matter how one may feel about them.
In my judgment in Nelson v. Ebanga (1998) 8 NWLR (Pt.563) 701. I expressed my views in respect of the above two decisions. I have no reason to shy away from those views and will express them again, and perhaps, more pungently if the occasion demands. See also the views of Ogundare, J.C.A (as he then was) in Oyeniran v. Egbetola (supra), and Ejiwunmi, J.C.A. (as he then was) in Ebiteh v. Obiki (1992) 5 NWLR (Pt.243) 599. More importantly, see the forthright contributions of Salami, J.C.A. in Nelson v. Ebanga (supra).
The issue for consideration in this and in similar appeals is simple and straight-forward. Section 236(1) of the 1979 Constitution of Nigeria gave the High Court of a State ‘unlimited Jurisdiction to hear and determine any civil proceedings’.
That unlimited jurisdiction can only be limited, restricted or whittled down by a law supreme to (if any) or perhaps equal to the Constitution. The taking away of the unlimited jurisdiction of the State High Court must be express or by necessary implication of the law that seeks to limit the said jurisdiction.
Before the promulgation of the Land Use Act 1978 the High Courts of the State had exercised original jurisdiction in respect of lands in non-urban area, Section 41 of the Land Use Act 1978 did not take away that jurisdiction. It should be appreciated that section 41 of the Act is differently worded from section 39, which gave the High Court EXCLUSIVE jurisdiction over lands in urban area. Not only did section 41 not give Area Court or Customary Court exclusive jurisdiction in respect of land subject to customary right of occupancy but it also gave jurisdiction to other Court of equivalent jurisdiction in a state. This Court of equivalent jurisdiction in the state has been judicially interpreted by this Court to include the High Court of the State – See Oyeniran v. Egbetola (supra) per Ogundare, J.C.A. (as he then was). In Nelson v. Ebanga (supra) Salami, J.C.A. in his characteristics courage and forthrightness had this to say at page 730:-
“My scanning of both sections of the enactment reveals that while section 39(1) vests exclusive jurisdiction in a State High Court in respect or proceedings relating to statutory right of occupancy two Courts are contemplated by section 41 in respect of proceedings concerning customary right of occupancy. In other words, Area or Customary Courts are not vested with exclusive jurisdiction in mailers pertaining to customary right of occupancy. There is another Court within the contemplation of the enactment which is referred to as “or other court of equivalent jurisdiction”.
The phrase or other Court of equivalent jurisdiction does not embrace an interior court of equivalent jurisdiction because, apart from some Eastern States, there is no other Court with jurisdiction to entertain question of title to land in other parts of the Federation. The Magistrate’s Courts in the erstwhile Northern and the North are divested of jurisdiction to entertain matters concerning title to or interest in land. In the circumstance, the people in those groups of states would be without remedy for their rights which would defeat the well known principle of law that is, where there is right there is remedy, encapsuled in the Latin maxim of ‘ubi jus ibi remedium’, if a solution is not found to the cul de sac into which we would be led; if exclusive jurisdiction is conferred on Area or Customary Court or other inferior courts. It appears that State High Court provide a way out.
Section 39, however, gave exclusive jurisdiction to the State High Courts in the determination of issue relating to statutory right of occupancy. It does appear that the legislature in writing other Court of equivalent jurisdiction into section 41 had in mind the jurisdiction of State High Court to entertain matters in relation to customary right of occupancy. The High Court, in my respectful view, therefore has unrestricted jurisdiction to entertain proceedings relating to customary right of occupancy with Area of Customary Court. (italics supplied).
In this contribution, I adopt everything I said in Nelson v. Ebanga (supra), I do not need to say more. The legal profession in this country awaits such a time that it will be opportune for the Supreme Court, the apex Court, to have a hard look on its decisions in Sadikwu v. Dolari (supra) and Oyenniran v. Egbetola (supra), and put the two decisions side by side with it many earlier decisions where it affirmed the original jurisdiction of the High Court of a State in respect of lands subject to customary right of occupancy. I may, by way of ex-abundante coutela, mention a few of such cases.
They include:
(1) Ogunola v. Eiyekole (1990)4 NWLR (Pt.146) 632 in which a declaration of customary right of occupancy made by the Ogun State High Court was affirmed by the Supreme Court.
(2) Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192 the Supreme Court affirmed a similar declaration made by the High Court of Oyo State.
(3) Ekretsu v. Oyobebere (1992) 9 NWLR (Pt.266) 438 similar declaration made by Bendel State High Court was affirmed by the Supreme Court.
Before I conclude this judgment, let me say a word on the principle of stare decisis. It is the binding force of precedent. It means in simple terms that an inferior Court is bound and must follow the decision of a superior court in matters where the facts of one case are similar to those being considered by the inferior Court or where the principle of law to be applied in the two cases are the same. The principle makes for clarity and consistency in a judicial system. As I have said earlier, it is judicial impertinence for an inferior Court to say that it is not bound or that it will not follow a decision of the superior court. Stare decisis is however not a legal catechism. If an inferior Court is of the strong view that there is something wrong with a decision of the superior Court, it may make its observations in a very polite language but in the end, it must bow to the superior Court. A lot depends on how the inferior Court makes its observations. When a lower Court is faced with conflicting decisions of a higher Court, what does the lower court do?. It must follow one of the decisions of the higher Court and necessarily refuse to follow the other. Would such a Court be accused of a breach of the principle of stare decisis because it has refused to follow that other decision?. There is a school of thought that, the inferior Court should follow the latter decision. Suppose the latter decision was given per incuriam the earlier decision, what does the inferior Court? These are some of the intriguing legal questions in our jurisprudence, which call for clarification from our apex Court.
In the final analysis and subject to my above observations, I hold the view, as I held in Nelson v. Ebanga (supra), that in view of the decisions of the Supreme Court in Sadikwu v, Dolari (supra) and Oyeniran v. Egbetola (supra). I am bound to agree and I do hereby agree with my brother Muhammad, J.C.A. that this appeal must succeed and is hereby allowed. The ruling of the lower court is set aside. I abide by the order of costs as is made in the lead judgment.

FABIYI, J.C.A.: I had a preview of the lead judgment just handed out by my learned brother, M.D. Muhammad, J.C.A. I agree with the conclusion reached that the learned trial Judge wrongly assumed jurisdiction to try the matter. No doubt, the ruling of the Trial Judge must be set aside. I wish to make a little contribution in relation to the doctrine of stare decisis. The decisions of the Supreme Court our apex court in Salati v. Shehu; Sadikwu v. Dalori and Oyeniran v. Egbetola cited in the lead judgment are very clear in their purport. The resume of the decisions is that High Courts have no original jurisdiction in respect of matters relating to land which are subject to customary right of occupancy. Section 41 of the Land Use Act was considered. The issue is no longer a moot point.
This court in Ebiteh v. Obiki and Nelson v. Ebanga both cited in the lead judgment reluctantly followed the position of tile Supreme Court in Salati, Sadikwu and Oyeniran cases, Ubaezonu, J.C.A in Nelson’s case followed the Supreme Court decisions with his hands tied. He postulated that, the decisions in Sadikwu v. Dalori was given per incuriam S. 236 of the 1979 Constitution. I feel hesitant to be at one with him. I am not in a position to say such a thing. I abide by the advice of Jibowu, F.C.J. in Tsamiya v. Bauchi Native Authority cited in the lead jdugmetn at page 83. his Lordship pronounced as follows:-
“With respect to the Learned Chief Justice and other members of the Court, it must be pointed out that it is not for an inferior court to say that a decision of the higher Court was reached per incuriam; that is a privilege of the higher Court if, after reconsidering its former decision, it is satisfied that the previous decision had been reached per incuriam.
The doctrine of stare decisis has gone through the test of time. It has passed the test of time to say the least. The time honoured doctrine is to the effect that, the state of the law on an issue that has been pronounced upon by a superior Court must be followed by the lower Courts. There is sense in same as confusion in the stale of the law is avoided. The doctrine has become part of our jurisprudence thus far. And so shall it continue to be.
Trial Court Judge who always attempt to dance round in a bid to circumvent the decision of our apex Court in Dalori case for no just cause should beware. With the humane and unassuming posture of those who constitute our apex Court, one may be tempted to say that they cannot hurt a fly. But I dare say that, for a flagrant transgression of the doctrine of stare decisis by a Trial Judge, they may ‘sting like a bee’. I refer to Prince J.S. Atolagbe & anor. v. Alhaji Ahmadu Aswani and 2 Ors. (1997) 9 NWLR (Pt.522) 536, 7 SCNJ 1 at pp 20, 21, 24 and 35, Herein, the Trial Judge said he was not bound by the decision of the Court of Appeal but preferred that of the Supreme Court in a case which appeared not to be on all fours. He had it raw and I need to quote the strictures dished out for education.
The C.J.N. Uwais, M.I. at page 20 lines 25, 29 had this to say on the conduct of the Trial Judge:-
“With regard to the Learned Trial Judge’s refusal to follow the decision of the Court of Appeal in Gambari’s case (supra) in preference to the decision of this Court in Bakare’s case (supra). I am of the view that the learned trial Judge’s insubordination calls for deprecation”.
Wali, J.S.C, at page 21 lines 38-39 without any reservation said:-
“The action of the Judge is not only wrong but amounts to arrogance and judicial irresponsibility which must be deprecated”.
U, Mohammed, J.S.C. at page 24 lines 13-17 in a more ruthless fashion said:-
I agree entirely that Orilonishe, J. by refusing to abide by the decisions of a superior Court had committed an abominable act contrary to the ethics of this appointment. Such a behaviour should not be condoned. Even if he disagrees with the decision of the Court of Appeal, under the doctrine of stare decisis, he is bound to follow it.
Onu, J.S.C. at page 35 lines 22-24 said:-
‘”The Learned Trial Judge was therefore guilty of judicial impertinence and insubordination to say he was not bound”.
Adio, J.S.C. of blessed memory, agreed with the lead judgment delivered by the C.J.N. I must state it that the Trial Judge had a saving grace in the fact that Ogundare and Ogwuegbu, J.S.C dissented.
I have tried to show that the doctrine of stare decisis is good. It is worthwhile to strictly abide by it. It should not be taken lightly. It should not he dealt with by trial courts with levity or reckless abandon.
Now on a lighter mood, I want to briefly touch the Economist’s stand-point on ‘division of labour’ to buttress my last point. In an Organization which craves for adequate positive result, each worker has his commensurate schedule of duty for due performance. I strongly feel that this idea crossed the mind of the maker of the Land Use Act, 1978, more especially section 39 and 41 of same. By Section 39(1) High Courts have exclusive jurisdiction over proceedings in respect of any land subject of a statutory right of occupancy. Section 41 confers jurisdiction on Area Courts or Customary Courts in respect of Customary right of occupancy granted by a Local Government. Area Courts or Customary Courts and grass root courts have to do the spadework in rural areas. Appeals on their judgments will then go before the High Courts. I do not think that Trial Courts should lose their sleep over this sound arrangement. It is more dignifying to take a case on appeal than at first instance. And so, the rational over the furore generated as regard S.236 of the 1979 Constitution is fairly strange to me. One day, we shall have the last word on the issue I hope.
For the above reasons and the conclusion of my learned brother, I also allow the appeal. I endorse the order relating to costs as contained in the lead judgment.
Appeal allowed.