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ZAFI v. MANZO (2021)

ZAFI v. MANZO

(2021)LCN/15889(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, July 22, 2021

CA/J/461/2018

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

AYUBA ZAFI APPELANT(S)

And

IRIMIYA MANZO RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE COURT CAN ADOPT ISSUES OF PARTIES BEFORE IT

 I can adopt the issues of any of the parties or formulate my own issues. It is always safer and better to adopt the issues formulated by the parties except where the issues formulated does not adequately put in proper perspective the grounds of appeal.  See PDP vs Senator Ali Modu Sherrif (2017) 15 NWLR (pt. 1588) 219; NNPC & Anor vs Famfa Oil Limited (2012) LPELR-7812 (SC). PER TOBI, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

This is because the subject of jurisdiction is key as any proceeding or decision arrived at by any Court without jurisdiction amounts to a complete waste of time and resources of the Court as it is a nullity.  There is a cloud of decided authorities on this. I refer in this instance to the case of Chief Daniel Oloba vs Isaac Akereja (1988) LPELR-2583 (SC) where the apex Court buttresses this point in these words:
“The issue of the jurisdiction is very fundamental as it goes to the competence of the Court or tribunal. If a Court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the Court to embark on the hearing and determination of the suit, matter or claim. It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the appeal Courts. This issue can be raised by any of the parties or by the Court itself suo motu. When there are sufficient facts ex-facie on the record establishing a want of competence or jurisdiction in the Court it is the duty of the Judge or justices to raise the issue suo motu if the parties fail to draw the Court’s attention to it. See Odiase v. Agho (supra). There is no justice in exercising jurisdiction where there is none. It is injustice in exercising jurisdiction where there is none. It is injustice to the law, to the Court and to the parties so to do.”
 PER TOBI, J.C.A.

DEFINITION OF THE TERM “JURISDICTION”

Jurisdiction has been defined as the life wire of any judicial process as this is what gives the Court authority and power to look into the matter placed before it. The Court certainly may have judicial powers as entrenched in the Constitution but jurisdiction is a different cup of tea as jurisdiction is what confers powers on a Court to decide on the matter placed before it. In National Bank & Anor vs Shoyoye & Anor (1977) 1 ANLRP 168, the apex Court in defining jurisdiction held:
“What then is the meaning of jurisdiction? It is defined in Vol. 10 Halsbury Laws of England 4th Ed. Para. 715 page 323 as follows: “By jurisdiction is meant the authority which a Court has 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 authority are imposed by the statute, charter or commission under which the Court is constituted and may be extended or restricted by similar means. If no restriction is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to area over which the jurisdiction extends or it may partake of both these characteristic.”
See also Saraki vs FRN (2016) 1-2 S.C. (pt. v) 59.  PER TOBI, J.C.A.

DISTINCTION BETWEEN JUDICIAL POWERS AND JURISDICTION

The Supreme Court in several cases has made the distinction between judicial powers and jurisdiction. In ABACHA VS. FRN (2014) 6 NWLR (pt. 1402) 43; (2014) LPELR-22014 (SC) 82-83 per Galadima J.S.C. held: “Section 6(1) of the 1999 Constitution has vested the judicial powers in the Court to which the section relates. Judicial powers have been interpreted in BRONIK MOTORS & ANOR VS. WEMA BANK LTD (1983) 14 NSCC 26 at 253 to mean the power which every sovereign authority must of necessity possess to enable it settle and decide controversies between its subjects. Judicial power is co-extensive with the power of the state to make laws and execute them.  Jurisdiction in contrast to judicial power is the authority or legal weapon of which a Court must possess to decide matters that are litigated before it to take cognizance of matters presented in a formal way for its decision. See ENYADIKE VS. OMEHIA & 4 ORS (2010) 11 NWLR (pt. 1204) 92 at 112.”
The apex Court made this distinction clearly in Okwuosa vs Gomwalk & Ors (2017) SC (pt. II) 42 thus:  
“It is settled that where a Court has no jurisdiction, with respect to a matter before it, the juridical basis for the exercise of any power with respect to such matter is also absent. The reason is obvious. Power can only be exercised by a Court where it has jurisdiction to do so. See BRONIK MOTORS LTD v. WEMA BANK LTD (1983) 6 SC. 158. Power and jurisdiction are not the same. Whereas, jurisdiction is the right the Court has in law to hear and determine the dispute between the parties, power on the other hand, is the authority it has to take decisions and make binding orders with respect to the matter before it. See AJOMALE v. YADUAT (No.1) (1991) 5 SCNJ, 172 at 176. It is for this reason that the Constitution, Section 6 deals with judicial powers of Courts generally while the enabling and establishment provisions of the Constitution, dealing with each Court clearly set out the jurisdiction of each Court. For instance Section 251 pertains to the jurisdiction of the Federal High Court while Sections 240 and 233 respectively, pertain to the jurisdictions vested in the Court of Appeal and the Supreme Court .”
PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Hon. Justice K. N. Hamidu and Hon. Justice G. M. Mahmood of the High Court of Justice, Bauchi State sitting on appeal over the decision of the Principal District Court 1, Bauchi delivered on 19th March, 2018 in appeal no. BA/116A/2015. The Appellant here, Respondent in the lower Court was the Plaintiff in the Court of first instance being the Principal District Court 1 Bauchi, in this judgment referred to as the trial Court in Suit No.  PDCTB/59m/2009. He sued the Respondent/defendant in the trial Court for declaration of title to land, trespass, vacation of the land and damages. The trial Court entered judgment for the Plaintiff awarding N20,000.00 as damages and N10,000.00 as cost. The Respondent in this Court filed an appeal challenging the judgment of the trial Court at the lower Court which overturned the judgment of the trial Court mainly on the premise that the trial Court had no jurisdiction to entertain the matter in the first place.  The judgment at the lower Court favoured the Respondent in this appeal that is the Defendant in the trial Court. The Plaintiff at the trial Court being the loser in the lower Court decided to file this appeal to this Court. This now made him the Appellant and the Defendant became the Respondent.  The lower Court in pages 199 and 201 of the record in the judgment held as follows:
“Looking at the claim of the plaintiff now Respondent and relying on the authorities cited above, we hold that the principal district Court Judge has no jurisdiction to hear and determine Suit No: PDCTB/59M/2009, the first issue for determination we formulated above is determined in the negative and in favour of the Appellant….
We have earlier held that the learned trial district Judge had no jurisdiction to determine the suit now subject of this appeal. The implication of this is that the whole trial is an exercise in futility all the steps taken in the matter are null and void. See Mc Inc. LTD V. Duncan (2016) 4 NWLR (Part 1501) 193 at 207 to 208 Paras H-B.’’

The Respondent in the lower Court unhappy and dissatisfied with the judgment filed this appeal.  The appeal is predicated on the amended notice of appeal of 6 grounds. The grounds of the appeal without the particulars are as follows:
1. The learned justices erred in law when they held that the evidence of DW1 is not hearsay even though he is not a member of the Respondent family.
2. The learned justices erred in law when they held that the trial Court has no jurisdiction to entertain ancillary claim of N240, 000.00 general damages.
3. The learned justices erred in law when they allowed the grant of title in respect of a house and 15ft from the east, west, north and south of the house to the Respondent.
4. The learned justices erred in law when they held that the trial Court has no jurisdiction to entertain the Appellant’s claim, instead of striking out the ancillary claim of N240, 000.00 general damages.
5. The learned justices erred in law when they failed to make pronouncement on the issues raised before the Court wherein the Appellant abandoned excesses of his claim in excess of the monetary jurisdiction of the trial Court.
6. The learned justices erred in law when they held that the judgment of the trial Court in perverse and yet failed to evaluate the evidence of both the Appellant and the Respondent witnesses before the trial Court.

Both parties filed their respective briefs. The Appellant’s brief in this appeal filed on 5/10/2020 deemed on 6/10/2020 was settled by M. O. Nwoye Esq., his counsel. The Respondent’s counsel who settled the brief filed on 30/12/2020 is Oshorughwu F. Enoghene Esq.  In arguing the appeal, the Appellant’s counsel formulated 3 issues for determination viz:
1.  Whether the lower Court was right to hold that the evidence of DW1 is not hearsay when he is not a member of the Respondent’s family thus held that the judgment of the trial Court is perverse?
2. Whether the lower Court was right to declare that the trial Court has no jurisdiction to entertain the Appellant’s claim of N240,000.00 general damages when same is an ancillary claim?
3.  Whether the lower Court was right to have failed to make pronouncement on the issues presented before the Court without resolving same either way?

Learned counsel to the Appellant answered the first issue in the negative, he submits that DW1 not being a member of either the Appellant nor Respondent’s family has no competence to give credible evidence on behalf of the Appellant as to how the land was inherited by the Appellant and that in the circumstance DW2 evidence will amount to hearsay evidence which in law is not admissible. Learned counsel submitted further that the exception to hearsay evidence on traditional evidence will not avail the evidence of DW1. It is the firm submission of counsel that if the lower Court had properly evaluated the evidence before it, the Court would not have found it difficult to accept the evidence of the Appellant as more credible than that of the Respondent citing the cases of Oludamilola Vs. The State (2008) 26 WRN 57, State vs Oladotun (2011) 10 NWLR (pt. 1256) 542; Wachukwu vs Owunwanne (2011) vol. 25 WRN 1. Counsel urged this Court to resolve the issue in favour of the Appellant.

In urging the Court to resolve issue 2 in favour of the Appellant, learned counsel submitted that the claim of the Appellant was not contained in the record which was transmitted to the lower Court and therefore the Court speculated by taking a decision on a claim not before it which offends the principle of law that Courts’ decisions should not be based on speculation relying on Uwagboe V State (2008) Vol. 163 LRCN Pg 92 @ 98 R.11. Counsel also submitted that the claim of N240,000.00 for general damages is an ancillary claim and not the main claim which is for a declaration of title to land and as such the trial Court has jurisdiction since  the law is settled that where a Court has jurisdiction to entertain the main claim but lacks jurisdiction on the ancillary claim, a Court can exercise jurisdiction on the main  and  strike out the ancillary claim.

Counsel concedes that although N240,000.00 was the claim of the Plaintiff, but the sum of N30,000.00 was awarded, further submitting that it is settled law that where a Court exercises its discretion judicially and judiciously, same cannot be distorted by the appellate Court, he cited All Progressive Grand Alliance V Umeh (2011) 32 WRN Pg. 2 @ Pg. 8 R. 8

Counsel finally submitted on this issue that the district Court law gives the Appellant the right to abandon the amount in excess of the monetary jurisdiction citing Order 2 Rule 5(1) of the District Court Rules of Bauchi State. Counsel urged this Court to resolve this issue in favour of the Appellant as he abandoned the sum of N100,000.00 before the lower Court hence the claim for damages will stand at N140,000.00 which the trial Court has monetary jurisdiction to entertain.

In addressing issue 3, counsel placing heavy reliance on NCC V Motophone Ltd & Anor (2019) LPELR-47401 (SC) submitted that the Court is duty bound to resolve all issues presented before it for consideration.  The failure of the lower Court to make any pronouncement on the issue of abandonment of excess monetary claim raised by the Appellant for the first time on appeal affect the issue of fair hearing to the parties. Counsel urged this Court to resolve this issue in favour of the Appellant and allow the appeal.

On his part, the Respondent through his counsel also formulated 3 issues for determination which are not radically different from those formulated by the Appellant. For completeness, I will reproduce the Respondent’s issue for determination viz:
(i)  Whether the Honourable lower Court Judge rightly held that the district Court judgment was perverse despite the Appellant’s purported contention that DW1 evidence is hearsay evidence since he is not a member of the Respondent’s family.
(ii)  Whether the lower Court Judge rightly held that the principal district Court had no jurisdiction ab initio to have entertained the Appellant’s claim of N240,000.00 as general damages?
(iii) Whether the Honourable Court carefully considered and appraised evidence on record before pronouncement on the issue in conflict?

In addressing issue 1, counsel answered same in the affirmative while submitting that the lower Court was right to hold that the judgment of the trial Court was perverse despite the contention of the Appellant that DW1 evidence was hearsay. It is further submitted that the lower Court concluded that since both parties led conclusive evidence of traditional history, the Court was not expected to delve into the credibility of the witnesses but rather to examine the act of ownership or possession of either party.

Counsel further submitted that the Appellant’s counsel misconceived the position of the law by arguing that since DW1 neither belongs to the family of the Appellant nor that of the Respondent, his evidence was hearsay contending that the evidence of DW1 did not amount to hearsay since it is to prove customary history of land. For this submission, counsel referred to the case of Oneojiko V Ezenanuo 1991 SCNJ 181, it is the further submission of counsel that the evidence of DW1 is admissible under Section 66 of the Evidence Act as an exception to hearsay evidence.

On the 2nd issue, counsel submitted that jurisdiction is the mantra of a Court to adjudicate or determine a dispute submitted by parties before the Court. It is counsel’s firm submission that the trial Court had no jurisdiction to entertain the matter before it as the monetary claim exceeded the amount the trial Court has jurisdiction to entertain. He cited Ajomale V Yaduat (No. 1) (1991) 5 CCNJ 172; Section 13(2)(a) of the District Court Law of Bauchi Elugbe v Omokhafe (2004) 18 NWLR (pt.905) 319, Ladoja V. Ajimobi (2016) 10 NWLR (pt. 1519) 87. It is further submitted that although the Appellant was at liberty to abandon his excess claim, no application was made to that effect before the trial Court and since that was not made then, it was impossible at the lower Court to do that as it is caught by the doctrine of estoppel. Counsel referred to Section 169 of the Evidence Act and the case of Mabamije v Otto (2016) @ 3 NWLR (pt. 1529) 171 @ 176. Counsel finally submitted on this point that jurisdiction is not a discretionary power of the Court to exercise.

On the final issue, counsel submitted that the lower Court carefully appraised the evidence on record and the claim of N240,000.00 was in excess of the power of the trial Court and that since the issue of abandonment was not raised timeously without leave, it is an afterthought. He wrapped up his argument by submitting that the lower Court properly analyzed the claim with the reliefs sought by the appellant together with the District Court law before arriving at a conclusion. In this regard, the Court pronounced on all issues before it. Counsel urged this Court to dismiss the appeal and uphold the judgment of the lower Court.

Both counsel have made submissions to the best of their ability representing the position of their clients. That is their duty. At the end of their duty mine begins. My duty is simple; it is to decide whether the lower Court was right in its decision bearing in mind the facts that were before it.  See Auwalu Tijjani vs Hajiya Yabi & Ors (2017) LPELR-44606 (CA); Adetoun Oladeji (Nig) Ltd vs Nigerian Breweries Plc (2007) 1 S.C. (pt. II) 183.  This Court cannot re-evaluate the evidence before the trial Court or even substitute my views with that of the lower Courts. See A. G. Ekiti & Ors vs Prince Michael Daramola & Ors (2003) NWLR (pt. 827) 104.  The attention now moves to this Court in deciding the case one way or the other. As mentioned above, this is the third stage or level of this case. The trial Court is the Principal District Court 1 of Bauchi State. In that Court, the claim of the Appellant was as follows:
a. An order declaring the title of the land to the plaintiff.
b. A declaration that the entry and cultivation of the farmland in dispute by the Defendant without the authority or consent of the plaintiff amount to trespass.
c. An order of the Court directing the defendant to immediately vacate the land in dispute.
d. The sum of N240,000.00 (Two Hundred and Forty Thousand Naira) only as general damages for trespass.
e. Cost of the action.
The Appellant won there. The Respondent appealed to the lower Court which is the High Court.  The lower Court upheld the appeal mainly on grounds of jurisdiction. The position of the lower Court was that the trial Court had no jurisdiction to entertain the matter in the first place mainly on the premise that the monetary claim was above the jurisdiction of the trial Court. The lower Court on that ground set aside the judgment of the trial Court as it is a nullity. The Appellant who lost at the lower Court is before this Court seeking for an order that the lower Court’s decision which was decided as an appellate Court be set aside and the decision of the trial Court be affirmed.  

In this appeal, the main issue for determination is the issue of jurisdiction since the main ground for overturning the decision of the trial Court is on the premise of jurisdiction. Though both counsel in the briefs of the parties addressed the issue of jurisdiction as the second issue of the three issues formulated for determination, I will address the issue of jurisdiction first as the law is trite that when the issue of jurisdiction is raised it should be addressed first. See Persons, names unknown vs Sahris Int Ltd (2019) LPELR-49006 (SC); Abdulsalam & Anor vs Salawu (2002) 13 NWLR (pt. 785) 505.  

Both counsel representing the parties formulated three issues for determination which in my opinion are not radically different in substance from each other. I have reproduced them above and therefore will not need to do that again. I can adopt the issues of any of the parties or formulate my own issues. It is always safer and better to adopt the issues formulated by the parties except where the issues formulated does not adequately put in proper perspective the grounds of appeal.  See PDP vs Senator Ali Modu Sherrif (2017) 15 NWLR (pt. 1588) 219; NNPC & Anor vs Famfa Oil Limited (2012) LPELR-7812 (SC).  I can adopt the issue as formulated by one of the parties or I can even mix the issues of the parties provided they will properly address the grievance of the parties arising from the judgment of the lower Court.  I will mix the issues from the parties so as to properly appropriate the issues before this Court. I do not think I will be breaking any law if I so do. For issues 1 and 2, I will adopt those of the Appellant and issue 3, I will adopt the Respondent’s.  For clarity, I will now reproduce the issue for determination in this appeal thus:  
1. Whether the lower Court was right to hold that the evidence of DW1 is not hearsay when he is not a member of the Respondent’s family thus held that the judgment of the trial Court is perverse?
2. Whether the lower Court was right to declare that the trial Court has no jurisdiction to entertain the Appellant’s claim of N240,000.00 general damages when same is an ancillary claim?  
3. Whether the Honourable Court carefully considered and appraised evidence on record before pronouncement on the issue in conflict?

I will in this judgment for reason stated above not follow the numerical order in addressing the issues. I will start with issue 2 which deals with jurisdiction. The lower Court in considering the appeal before it held that the trial Court had no jurisdiction to entertain the matter in the first place and as such the decision of the Court is a nullity. This seems to be the main ground for setting aside the judgment of the trial Court.  This position can be found on pages 199 and 201 of the record of appeal. I have quoted it above but it will not harm anyone if I quote it again for emphasis sake. This is what the lower Court decided:
“Looking at the claim of the plaintiff now Respondent and relying on the authorities cited above, we hold that the principal district Court Judge has no jurisdiction to hear and determine suit no: PDCTB/59M/2009, the first issue for determination we formulated above is determined in the negative and in favour of the Appellant….
We have earlier held that the learned trial district Judge had no jurisdiction to determine the suit now subject of this appeal. The implication of this is that the whole trial is an exercise in futility; all the steps taken in the matter are null and void. See Mc Inc. LTD V. Duncan (2016)4 NWLR (Part 1501)193 at 207 to 208 Paras H-B.’’

For a proper flow of the judgment, I will reproduce issue 2 again which reads thus:
Whether the lower Court was right to declare that the trial Court has no jurisdiction to entertain the Appellant’s claim of N240,000.00 general damages when same is an ancillary claim?

The lower Court in its 13-pages judgment had anchored its decision on the fact that the trial Court had no jurisdiction to entertain the matter in the first place and therefore the decision was a nullity and decided to set aside. In the circumstance, the appropriate place to start is to look at the provision of the law which states the jurisdiction of the lower Court. The jurisdiction of the trial Court in Bauchi State, that is the Principal District Court 1, is covered by Section 13 of the District Court Law (Laws of Bauchi State) Cap 189 of the Laws of Bauchi State.  It is important to reproduce Section 13 (1)(b)(d) & 2(a)(i) of the law. This is the Section that confers jurisdiction on the trial Court. The trial Court cannot afford to assume jurisdiction over a matter that is outside the jurisdiction as stated in the Section 13. I do not want to paraphrase the Section. I will quote it as it is the relevant portion that is. The Law provides thus:
13(1) Subject to the provisions of this law and of any other written law, a principal district Judge I and II, a senior district Judge I and II and a district Judge I and II shall have and exercise jurisdiction in civil causes and matters.
(b) In all personal suits, whether arising from contract or from tort or from both. Where the debt or damage claimed, whether as balance claimed or otherwise is not more than two hundred thousand (N200,000.00) naira in the case of a principal district Judge I, one hundred and eighty thousand (180,000.00) naira in the case of principal district Judge II, one hundred and fifty thousand (N150,000.00) naira in the case of a senior district Judge I, one hundred and thirty thousand (130,000.00) naira in the case of a senior district Judge II, one hundred thousand (100,000.00) naira in the case of a district Judge I, and eighty thousand (80,000.00) naira in the case of district Judge II.
(d) In all civil proceedings in respect of which jurisdiction has been conferred upon a district Court of the land tenure law where the amount claimed or the capital value of the land and the subject matter of the proceedings, as the case may be, does not exceed two hundred thousand (N200,000.00) naira in the case of a chief district Judge I, one hundred and eighty thousand (180,000.00) naira in the case of a chief district Judge II, one hundred and fifty thousand (N150,000.00) naira in the case of a senior district Judge I and one hundred and thirty thousand (130,000.00) naira in the case of a senior district Judge II.
2(a) Subject to the provisions of paragraph (d) of Sub-section (I) and of any other written law a principal district Judge I or II and a senior district Judge I or II, shall exercise original jurisdiction in any suit or matter which –
(i) raises any issue as to the title to land or to any interest in land.
By the provision of this law, the District Court can exercise jurisdiction in matters relating to the title or interest in land within the territorial jurisdiction of the District Court.  If the provision ended here, the Appellant would have had no problem at all. This provision is the general provision for jurisdiction. Unfortunately for the Appellant as far as the lower Court is concerned, the second part that limits the monetary jurisdiction of the Court is what has caused problem for the Appellant in the lower Court. The lower Court seems to interpret the section to mean that even if the subject matter, being land falls within the jurisdiction of the trial Court, the jurisdiction of the trial Court on land matters is tied to the monetary jurisdiction of the Court. The implication of this is that, while a district Court has jurisdiction to entertain matters relating to title and interest in land but the interest is restricted by the monetary claim. There are therefore two conditions that determine the jurisdiction of the trial Court. The first being the subject matter, which in this instance is the land and the other is the monetary claim which for the trial Court is the sum of N200,000.00. Where the subject matter falls within the jurisdiction of the Court but the amount claimed falls outside the jurisdiction of the Court, the Court should decline jurisdiction. What the Plaintiff should ordinarily do as permitted by the District Court Rules was to abandon the excess claim to bring the monetary claim within the jurisdiction of the Court. This is because the subject of jurisdiction is key as any proceeding or decision arrived at by any Court without jurisdiction amounts to a complete waste of time and resources of the Court as it is a nullity.  There is a cloud of decided authorities on this. I refer in this instance to the case of Chief Daniel Oloba vs Isaac Akereja (1988) LPELR-2583 (SC) where the apex Court buttresses this point in these words:
“The issue of the jurisdiction is very fundamental as it goes to the competence of the Court or tribunal. If a Court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the Court to embark on the hearing and determination of the suit, matter or claim. It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the appeal Courts. This issue can be raised by any of the parties or by the Court itself suo motu. When there are sufficient facts ex-facie on the record establishing a want of competence or jurisdiction in the Court it is the duty of the Judge or justices to raise the issue suo motu if the parties fail to draw the Court’s attention to it. See Odiase v. Agho (supra). There is no justice in exercising jurisdiction where there is none. It is injustice in exercising jurisdiction where there is none. It is injustice to the law, to the Court and to the parties so to do.”

To further show the importance of jurisdiction, the law allows a party to challenge jurisdiction even for the first time on appeal and indeed it is an exception to the rule that a party applying for extension of time must give good reasons for the delay. See NPA vs Aminu Ibrahim & Co.,(2018) 12 NWLR (pt. 1632) 62; Ben Anachebe Esq., vs Kingsley Ijeoma & Ors (2014) 6-7 SC (pt. 1) 1.  

Jurisdiction has been defined as the life wire of any judicial process as this is what gives the Court authority and power to look into the matter placed before it. The Court certainly may have judicial powers as entrenched in the Constitution but jurisdiction is a different cup of tea as jurisdiction is what confers powers on a Court to decide on the matter placed before it. In National Bank & Anor vs Shoyoye & Anor (1977) 1 ANLRP 168, the apex Court in defining jurisdiction held:
“What then is the meaning of jurisdiction? It is defined in Vol. 10 Halsbury Laws of England 4th Ed. Para. 715 page 323 as follows: “By jurisdiction is meant the authority which a Court has 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 authority are imposed by the statute, charter or commission under which the Court is constituted and may be extended or restricted by similar means. If no restriction is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to area over which the jurisdiction extends or it may partake of both these characteristic.”
See also Saraki vs FRN (2016) 1-2 S.C. (pt. v) 59.

I must however hasten to make the point that there is a difference between jurisdiction and judicial power. This Court made this point in Aladesanmi & Ors vs Holden Properties (Nig) Ltd (2018) LPELR-49357 in these words:      

“The subject of jurisdiction is a serious one and indeed it is the life wire of any proceeding. A Court that adjudicates on a matter it has no jurisdiction would have wasted its time, that of the litigants, the Court staff and indeed material, human and financial resources. This is because, it is trite that any decision reached by a Court over a matter it has no jurisdiction will amount to nullity. It is as wasteful as a journey without destination or a journey into an endless or bottomless pit. See CHIEF OF AIR STAFF & ORS VS. IYEN (2005) 1 SC (pt. II) 123; UYAEMENAH NWORA & ORS VS NWEKE NWABUEZE NSCQR 46 2011 PAGE 409.
This is a journey of a beginning without an ending. No Court and indeed no human being should want to venture into such a journey which is not only tasking but fruitless. The question is, did the lower Court engage in such a journey? In answering that question, it will not be out of place to know what jurisdiction means and what confers jurisdiction on a Court. Jurisdiction is the power of a Court to adjudicate on a matter. This is what gives the Court power to welcome a litigant. This is the strength that a Court has to deal with matters brought before it. This is conferred mainly by statute. The matters that a Court can handle are what the jurisdiction of the Court is all about. Clearly, in Nigeria, it is not every Court that has jurisdiction to handle all cases, the statute can confer jurisdiction to handle all cases. The statute can confer jurisdiction on a Court. See A.G. LAGOS VS. DOSUNMU (1989) 6 SC (pt. 2) 1 … The judicial power of the Courts in Nigeria is conferred in Section 6 of the Constitution of the Federal Republic of Nigeria 1999. This is the power conferred on Courts to generally adjudicate on matters. This is power that rolls out the function of the Courts in Nigeria. This Section states the functions of the Courts in Nigeria as distinct from other arms of Government. Having been conferred with judicial powers, the Court will be conferred with jurisdiction to handle specific matters. In this circumstance permit me to say that, judicial power is broad and more general than jurisdiction which is more specific. For instance, Section 6 of the Constitution of Nigeria confers judicial power in Section 6(2) on the State High Court but jurisdiction of the State High Court is in Section 272 of the Constitution. The Supreme Court in several cases has made the distinction between judicial powers and jurisdiction. In ABACHA VS. FRN (2014) 6 NWLR (pt. 1402) 43; (2014) LPELR-22014 (SC) 82-83 per Galadima J.S.C. held: “Section 6(1) of the 1999 Constitution has vested the judicial powers in the Court to which the section relates. Judicial powers have been interpreted in BRONIK MOTORS & ANOR VS. WEMA BANK LTD (1983) 14 NSCC 26 at 253 to mean the power which every sovereign authority must of necessity possess to enable it settle and decide controversies between its subjects. Judicial power is co-extensive with the power of the state to make laws and execute them.  Jurisdiction in contrast to judicial power is the authority or legal weapon of which a Court must possess to decide matters that are litigated before it to take cognizance of matters presented in a formal way for its decision. See ENYADIKE VS. OMEHIA & 4 ORS (2010) 11 NWLR (pt. 1204) 92 at 112.”
The apex Court made this distinction clearly in Okwuosa vs Gomwalk & Ors (2017) SC (pt. II) 42 thus:  
“It is settled that where a Court has no jurisdiction, with respect to a matter before it, the juridical basis for the exercise of any power with respect to such matter is also absent. The reason is obvious. Power can only be exercised by a Court where it has jurisdiction to do so. See BRONIK MOTORS LTD v. WEMA BANK LTD (1983) 6 SC. 158. Power and jurisdiction are not the same. Whereas, jurisdiction is the right the Court has in law to hear and determine the dispute between the parties, power on the other hand, is the authority it has to take decisions and make binding orders with respect to the matter before it. See AJOMALE v. YADUAT (No.1) (1991) 5 SCNJ, 172 at 176. It is for this reason that the Constitution, Section 6 deals with judicial powers of Courts generally while the enabling and establishment provisions of the Constitution, dealing with each Court clearly set out the jurisdiction of each Court. For instance Section 251 pertains to the jurisdiction of the Federal High Court while Sections 240 and 233 respectively, pertain to the jurisdictions vested in the Court of Appeal and the Supreme Court .”

Jurisdiction is as important to a Court just as water is important to fish and breath is to human beings. Jurisdiction is like water to fish and breath to a human being. Without water, fish cannot survive just as human beings cannot survive without breath. The power of a Court without jurisdiction is like a toothless bulldog or a king without a kingdom. It is jurisdiction that activates the judicial powers of a Court. 

It is the law that confers jurisdiction on a Court, it cannot be conferred on a Court by the agreement of parties or by the Court by itself. See Braithwaite vs Skyebank Plc (2012) LPELR 15532 (SC); Adeyemi vs State (1991) 6 NWLR (pt. 195) 1; Dickson Ogunseinde Virya Farms vs Societe Generale Bank Plc (2018) 9 NWLR (pt.1624) 230.

After the law has conferred jurisdiction on a Court, the practical decision whether a Court has jurisdiction over a matter will be deduced from the statement of claim. In deciding whether a Court has jurisdiction over a matter, the relevant document is the statement of claim and not the statement of defence. This is a principle of law that I need not cite any case to buttress as it is trite principle of law.  

I am going this route to address the viability of the Appellant’s counsel submission that since the final decision of the Court awarded N30,000.00 which is an amount below the N200,000.00 monetary jurisdiction of the trial Court, the issue of lack of jurisdiction should be laid to rest. Learned counsel also submitted that the lower Court took a decision on jurisdiction when the claim was not before the Court. Finally, on this issue of jurisdiction, the Appellant’s counsel trying to persuade this Court to overturn the decision of the lower Court submitted that the Plaintiff, that is the Appellant before this Court abandoned the excess monetary claim. All these submissions are in recognition of the fact that the Appellant has identified the problem and trying so hard not to sink as this is a major issue that will determine whether the appeal will succeed or not.  

Let me address those issues as raised by the Appellant. This will take me to the rules of interpretation of statute. There are several rules of interpretation. I will not delve into all that suffice however to say that the first point of call in interpretation of statute is that, the purpose of the interpretation is to discover the intention of the law maker. The purpose of interpretation is for a Court to get as close as possible to the intention of the law maker. See Brig. General Marwa & Ors vs Admiral Nyako & Ors (2012) LPELR-7837. Whatever rule of interpretation is applied, the purpose is to give effect to the intention of the law maker and not for the Court to replace its mind with that of the law maker. 

In trying to find out the intention behind the enactment, the first rule is to look at the words used giving them their ordinary grammatical meaning as it is taking that one of the best ways a man can express himself is by what he says, as a man is meant to intended to mean what he says. This rule of interpretation is referred to as the literal rule of interpretation. This rule of interpretation does not allow a Court to apply the purposive rule of interpretation. This is so when the words used in the statute are clear unambiguous and precise. The apex Court in Alhaji Atiku Abubakar, GCON vs Alhaji Umaru Musa Yar’adua & Ors (2008) 19 NWLR (pt. 1120) 1 buttress this principle in these words:
“I should say that the purposive rule of interpretation will not avail a Judge where the intention of the lawmaker is clear, precise and unequivocal, so much so that, a person can say “Yes this is what the lawmaker has in his mind.” The purposive rule does not allow the Judge to destroy the intention of the lawmaker, in the language of Lord Denning, “the Judge must not alter the material at which it is woven, but he can and should iron out the creases.” The rule does not apply, and I so hold.”

On the point whether the Appellant abandoned the excess claim in the trial Court or the lower Court as submitted by counsel, the burden to show that rest on the Appellant. The law is trite to the effect that any person who alleges a fact has the burden to prove the fact he alleges. It is the Appellant that is alleging that he abandoned the excess claim. I agree that by the provision of Order 2 Rule (5)(1) of the District Court Rules of Bauchi State, the Appellant could abandon the excess of the claim so as to bring the claim within the jurisdiction of the Court. Counsel submitted that the Appellant abandoned the excess claim by N100,000.00 to bring it under the jurisdiction of the Court. The Respondent’s counsel on the other hand submitted that there is nothing in the record to show that the Appellant abandoned N100,000.00 of the N240,000.00 claim. In the light of the Respondent’s counsel joining issues with the Appellant, the Appellant has the duty to prove that fact. The reasonable thing to do is to look at the record of appeal. The record was transmitted to this Court on 22/11/2018 but deemed properly filed and served on 16/9/2019. The proceedings at the lower Court are covered in pages 86-101 of the record. I have gone through the records and I am unable to see anywhere that the Appellant applied to the Court abandoning the excess claim of the Appellant before the Court. Even if I did not check properly, another point while that argument will not fly is that, I am not aware of any law that gives the power to a Plaintiff in a matter to reduce his claim before the appellate Court without leave of Court.  In the absence of an evidence that the amount claimed by the Appellant was reduced in the trial Court, it stands to reason that the trial Court assumed jurisdiction over a claim for land in excess of N200,000.00.
The Appellant’s counsel tried another life line in submitting that the lower Court took the decision without seeing the claim made before the trial Court.  This cannot be correct as the notice of appeal from the trial Court found on page 7 of the record state the claim before the trial Court and the decision reached by the Court.

Two life lines gone and one more left like the popular TV program ‘who wants to be a millionaire’. The Appellant counsel submitted that since the trial Court awarded N30,000.00 as damages which is below the monetary jurisdiction of the trial Court, the trial Court was right in assuming jurisdiction. With due respect to counsel, this argument is a gross misconception of what jurisdiction means. I have discussed that above and so will not do that here again but suffice to say jurisdiction is not determined by the decision of Court. Whether a Court has jurisdiction is determined by the claim and not by the decision of the Court.  If a Court lacks jurisdiction, the Court should not touch the case at all talk less of making a decision that can bring the matter under the jurisdiction of the Court. I am really at a loss where this submission is coming from. The Appellant has lost the three life lines.

I have looked at the combined provision of Section 13 (1)(b) (d) & (2)(a)(i) of the District Court Law of Bauchi State, the mandatory word ‘shall’ was used to determine the jurisdiction of the Court.  The apex Court has severally held that the word shall carries a mandatory meaning when used in a statute which does not allow room for discretion and maneuver. See Tabik Investment Ltd & Anor vs G. T. B. Plc (2011) 6-7 SC (pt. III) 40. The implication therefore is that the trial Court has jurisdiction over land matter where the claim is not above N200,000.00.  The claim before the trial Court was over N200,000.00 that is N240,000.00. With all the three life lines gone is that any reason why this appeal will be allowed. There is one more life line for the Appellant.

The Appellant counsel submitted that the claim for damages is an ancillary claim so the Court could assume jurisdiction over the main relief for title and strike out the relief for damages. This argument seems to be very interesting but I do not think it will fly with me. As to what will amount to ancillary claim, this Court in Nabore Properties Limited vs Peace-Cover Nigeria Limited & Ors (2015) ALL FWLR (pt. 770) 1319 stated thus:
“The law is that a Court cannot adjudicate on ancillary reliefs where it has no jurisdiction to entertain the main claim especially where the determination of the ancillary claim must necessarily involve consideration of the main claim. See Tukur v. Govt. of Gongola State (1989) 4 NWLR (pt. 117) 517; Mudashiru v. Persons Unknown (2004) LPELR-7412(CA). Black’s Law Dictionary defines “Ancillary claim” thus: “The Term “ancillary” denotes any claim that reasonably may be said to be collateral to, dependent upon, or otherwise auxiliary to a claim asserted within federal jurisdiction in action. See Hartley Pen Co v. Lindy Pen Co., D.C. Cal., 16 F.R.D. 141, 154. Claim is “ancillary” when it bears a logical relationship to the aggregate core of operative facts which constitutes main claim over which the Court had independent basis of federal jurisdiction. Nishimatsu Const. Co., Ltd v. Houston Nat. Bank, C.A. Tex., 515F.2d 1200.1205.”  From Wikipedia on Ask. Com, “Ancillary relief means subordinate or subsidiary or a legal proceeding that is not the primary dispute but which aids the judgment rendered in or the outcome of the main action.”
I concede that when there is a main relief and an ancillary relief, the ancillary relief should not deprive the Court of jurisdiction if it has jurisdiction on the main relief.  The Court can strike out the ancillary relief. It is also true that damages can be ancillary reliefs in a cause of action for declaration of title to land, as the ancillary relief is to protect the main relief to give it life, the point must however be made that the trial Court did not strike out the relief for damages and in fact granted that relief although in sum less than what was claimed. In my opinion, it is too late in the day for the Appellant to converse that issue now more so without leave.
The more serious reason in my view why this last life line cannot serve the Appellant is because the damages sought here is not just an ancillary relief but rather the law that confers jurisdiction on the trial Court has defined the jurisdiction of the Court to include the monetary claim.  All life lines gone, there is nothing the Appellant can hold unto any more.

The claim before the trial Court for which it exercised jurisdiction is for declaration of title to land, trespass and vacating the land and the sum of N240,000.00 as general damages for trespass and cost of action. The claim is for N240,000.00 which is N40,000.00 above the limit of the Court. Section 13(2)(a)(i) confers jurisdiction on the Principal District Court 1 on land matter but the provision is made subject to Section 13(1)(d) of the law which makes reference to Subsection (1)(b). These subsections limit what is a general provision in Subsection 2(a)(i). It is clear from all intent and purpose that the monetary limit placed on the Court cannot be seen as an ancillary relief as submitted by the counsel to the Appellant. The jurisdiction of the Court is tied to the monetary claim and therefore it cannot be said to be an ancillary claim. It is as major a claim as the claim for title. This is more so that it is an important factor in determining the jurisdiction of the Court. The combine reading of Section 13 (1)(b)(d) and (2)(a)(i) of the District Court Law of Bauchi State shows clearly that the monetary claim made by the Appellant in the trial Court  is beyond its jurisdiction. In the circumstance, I resolve this issue in favour of the Respondent against the Appellant.

Having resolved this issue in favour of the Respondent, I see no reason to resolve the other issues which will amount to an academic exercise. It therefore only remains to state the obvious, which is that I agree with the finding and decision of the lower Court that the trial Court had no jurisdiction to entertain the case in the first place. The proceeding and the decision of the trial Court having been done without jurisdiction is therefore a nullity. In the circumstance, I see no reason to set aside the judgment of the lower Court.  This appeal lacks merit and it is hereby dismissed. The decision of the lower Court, the High Court of Justice, Bauchi sitting in its appellate jurisdiction delivered on 19/3/2018 by Hon. Justice H. N. Kunaza and G. M. Mahmood is hereby affirmed.
Parties are to bear their own cost.
I so hold.

RAPHAEL CHIKWE AGBO, J.C.A.: I was privileged to read in draft the lead judgment of my learned brother Tobi, JCA and I completely agree with both the reasoning and conclusions. I have nothing meaningful to add.

BOLOUKUROMO MOSES UGO, J.C.A.: I read in draft the lead judgment of my learned brother EBIOWEI TOBI, J.C.A., and I am in complete agreement with his reasoning and conclusion. I also dismiss the appeal and abide His Lordship’s orders as to costs.

Appearances:

E. Z. Bola (Miss) For Appellant(s)

F. O. Inoghene Esq. For Respondent(s)