ZEDAKOJI & ANOR v. ALOHUTADE (2022)

ZEDAKOJI & ANOR v. ALOHUTADE

(2022)LCN/16664(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, January 06, 2022

CA/IB/258/2020

Before Our Lordships:

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Abdul-Azeez Waziri Justice of the Court of Appeal

Between

1. NUNAYON ZEDAKOJI 2. BENJAMIN ZEDAKOJI APPELANT(S)

And

ADENIYI ALOHUTADE RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

It is rudimentary law that the issue of jurisdiction is fundamental. The importance of jurisdiction in the adjudicatory process cannot be over-emphasised. Jurisdiction is a fundamental pre-requisite in the adjudication of any matter. It is the fons et origo, the threshold of judicial power and judicialism. It is the bloodline, lifeline, livewire and indeed the spinal cord of a Court of law: A-G OYO STATE vs. NLC (2003) 8 NWLR (PT 821) 1 at 26, ODEDO vs. INEC (2008) 17 NWLR (PT 1117) 544, OKOLO vs. UNION BANK (supra) and UTIH vs. ONOYIVWE (supra).

Where a Court does not have jurisdiction in a matter, its decision, no matter how brilliantly arrived at, and even if correct, is a nullity. See UNION BANK vs. BEAR MARINE LTD (2018) LPELR (43692) 1 at 24, FHA vs. OLAYEMI (2017) LPELR (43376) 1 at 81-82, A-G LAGOS vs. DOSUNMU (1989) LPELR (3154) 1 at 10 and OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 at 520. PER OGAKWU, J.C.A.

WHETHER OR NOT THE JURISDICTION IS CONFERRED ON A COURT BY THE CONSTITUTION

It is now settled law that jurisdiction is conferred on a Court by the Constitution or other statutory enactment establishing the Court. A Court cannot without an enabling law empowering it, exercise any jurisdiction. Put differently, it is the statute which creates the Court that defines its jurisdiction. The jurisdiction of the Court must be apparent on the face of the statute, it is not to be inferred or imagined, neither does it require a searchlight to discover. See BRAITHWAITE vs. GDM (1998) 7 NWLR (PT 557) 307 at 332, SHELIM vs. GOBANG (2009) 12 NWLR (PT 1156) 435 at 452, OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) 13 NWLR (PT 1157) 83 at 125, OBI vs. INEC (2007) 11 NWLR (PT 1046) 565 at 669 and LAWAL vs. EFCC (2020) LPELR (49590) 1 at 11-20. PER OGAKWU, J.C.A.

WHETHER OR NOT SUBMISSIONS FROM A LEARNED COUNSEL CAN TAKE THE PLACE OF EVIDENCE

It is hornbook law that the dexterous submissions from the sabre-rattling forensic arsenal of learned counsel cannot take the place of evidence which is lacking in a case: ISHOLA vs. AJIBOYE (1998) 1 NWLR (PT 532) 71 at 93, ARO vs. ARO (2000) 12 WRN 51 at 65 and BFI GROUP CORP vs. BPE (2012) 18 NWLR (1332) 209 at 244. This is how Tobi, JSC stated the legal position in KAZEEM vs. MOSAKU (2007) 17 NWLR (PT 1064) 523 at 535:
“Counsel qua advocate is the owner of the law in the sense of expertise while the facts of the case are owned by the party in the sense of possession, knowledge and intimacy. While the party cannot dabble into the domain of the law, which belongs to counsel, counsel cannot dabble into the domain of the facts, which belong to the party. Such is the clean and clear division of labour, though not in the strict use of the expression in the law of economics. As there are no facts upon which the submission of Counsel can be based, it should be rejected, and I reject it.” PER OGAKWU, J.C.A.

WHETHER OR NOT FINDINGS OF FACT WHICH HAVE NOT BEEN APPEALED AGAINST STANDS ADMITTED

It is trite law that findings of facts which have not been appealed against stand admitted and undisputed. They remain valid, subsisting and binding on all the parties. See COMMERCE ASSURANCE LTD vs. ALLI (1992) 3 NWLR (PT 232) 710, OLUKOGA vs. FATUNDE (1996) LPELR (2623) 1 at 8, ANYANWU vs. OGUNEWE (2014) LPELR (22184) 1 at 47, DABO vs. ABDULLAHI (2005) LPELR (903) 1 at 24 and FBN PLC vs. OZOKWERE (2013) LPELR (21897) 1 at 20. PER OGAKWU, J.C.A.

THE POSITION OF LAW ON WHEN A COURT IS SAID TO BE COMPETENT TO DETERMINE AN ISSUE BEFORE IT

In the case of Madukolu vs. Nkemdilim (1962) 1 All NLR5 87 at 595, which incidentally originated from the Native Court of Mbachete in the then Eastern Nigeria, jurisdiction is said to encompass the following:

‘Put briefly, a Court is competent when –
(1) it is properly constituted as regards numbers and qualifications of the 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; and
(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.
Any defect in competence is fatal, for the proceedings are a nullity however, well conducted and decided; the defect is intrinsic to the adjudication.’
It is therefore clear from the above statement of the law by this Court that jurisdiction is the life wire or blood that gives life to any adjudication in whatever system of law that comes into focus, be it customary law or English law. We should not forget that English law also includes the English Common Law which does not enjoy a higher legal status than our customary law. It follows therefore that since the concept of jurisdiction is of universal application and known to customary law when applied to Customary Courts, an error of jurisdiction by a Customary Court or Customary Court of Appeal which is a defect intrinsic to the adjudication, is an issue or question of customary law within the meaning of Sections 247 (1) and 224 (1) of the 1979 Constitution and therefore appealable as an issue of customary law up to the Supreme Court. To hold otherwise is to kill the development of that branch or system of adjudication in this country, as there would be no means of checking the excess or absence of jurisdiction in the relevant Courts and thereby encourage adjudication far in excess or absence of jurisdiction in the relevant Customary Courts, be it of first instance or appellate.”
I kowtow to this decision of the apex Court. Section 224 (1) of the 1979 Constitution which was applied and interpreted in the said case is in pari materia with Section 245 (1) of the 1999 Constitution, which is the applicable provision in this matter. It is predicated on the views so eloquently expressed by the apex Court in NWAIGWE vs. OKERE (supra) that I derived fortification to consider this appeal on the merits, since the concept of jurisdiction is of universal application. See OMUZAGA vs. OMUZAGA (2015) LPELR (24903) 1 at 17-21 (per Ogakwu, JCA) and OHIAERI vs. ORISAKWE (2018) LPELR (45019) 1 at 34-36 (per Awotoye, JCA). PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Respondent, as Plaintiff before the Ado-Odo Grade II Customary Court, Ado-Odo in Ado-Odo/Ota Local Government Area of Ogun State, instituted proceedings against the Appellants herein, as Defendants in SUIT NO. AD2/330/2018: ADENIYI ALOHUTADE vs. NUNAYON ZEDAKOJI & ANOR. The action is in respect of land situate at Podofe, Itire via Ado-Odo in Ado-Odo/Ota Local Government Area and which land is said to measure approximately three (3) acres and four (4) plots. The Respondent claimed declaration of title to the said land, trespass and perpetual injunction against the Appellants.

Upon being served with the originating process, the Appellants filed a Notice of Preliminary Objection on 6th November 2018, challenging the jurisdiction of the Ado-Odo Grade II Customary Court (hereinafter called the trial Court) to entertain a land matter. The Notice of Preliminary Objection is at page 50 of the Records. The trial Court heard the preliminary objection, dismissed the same and affirmed its jurisdiction to entertain the Respondent’s action. (See page 7 of the Records). This decision of the trial Court did not go down well with the Appellants; but their reaction was not to appeal against the said decision. No. Their reaction was by a letter their counsel wrote to the trial Court asserting that they still stood by their objection and that where they do not attend the trial Court; it will be because they are not submitting to the jurisdiction of the trial Court. The said letter is at page 51 of the Records. The Appellants made good their word as contained in the said letter and did not thereafter appear at the trial Court. The trial Court considered the letter from the Appellants’ counsel, re-asserted the affirmation of its jurisdiction to entertain the action and thereafter adjourned the matter for hearing. (See page 9 of the Records).

Hearing thereafter commenced at the trial Court and notwithstanding the hearing notices served on the Appellants they failed to attend the trial Court for the hearing of the matter. The Respondent testified in person and called two other witnesses. At the end of the trial, the trial Court held that the Respondent had proved his case and entered judgment for him accordingly. The judgment of the trial Court is at pages 19-22 of the Records. The Appellants were dissatisfied with the judgment of the trial Court and appealed against the same. The appeal was to the High Court of Ogun State as SUIT NO. HCT/IA/2019. However, upon the creation of the Customary Court of Appeal for Ogun State, the appeal was transferred to the Customary Court of Appeal of Ogun State and entered as APPEAL NO. OG/CCA/11/2020: NUNAYON ZEDAKOJI & ANOR. vs. ADENIYI ALOHUTADE.

The Customary Court of Appeal of Ogun State (hereinafter referred to as the lower Court) heard the appeal on the processes filed by the parties and in its judgment which was delivered on 25th February 2020, the lower Court dismissed the appeal. The Appellants were dissatisfied with the decision of the lower Court and appealed against the same to this Court. The judgment of the lower Court is at pages 127-140 of the Records, while the Notice of Appeal which was filed on 19th March 2020 is at pages 141-144 of the Records.

Upon the compilation and transmission of the Records of Appeal, the parties filed and exchanged briefs of argument. The Appellants’ brief of argument was filed on 23rd September 2020. The Appellants further filed a Reply Brief on 19th October 2020, and the Respondent’s brief of argument was filed on 30th September 2020. The Records of Appeal which was transmitted out of time on 25th August 2020 was deemed as properly compiled and transmitted on 8th November 2021, whereupon all the briefs filed by the parties were equally deemed as properly filed on the said 8th November 2021. At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.

The Appellants’ counsel in arguing the appeal stated that he would rely on the Appellants’ Reply Brief, notwithstanding the fact that it is a re-argument of the submissions made in the Appellants’ Brief. It does not seem to me to be good advocacy to insist on relying on a Reply Brief which is not in keeping with the purpose of a Reply Brief. The purpose of a Reply Brief is to reply to new points arising from the Respondent’s brief. It is not proper to use a reply brief to extend the scope of argument and submission in the Appellant’s brief, in order to, so to say, have a second bite at the cherry. See YANATY PETROCHEMICAL LTD vs. EFCC (2017) LPELR (43473) 1 at 27-28, ABDULLAHI vs. MILITARY ADMINISTRATOR (2009) LPELR (27) 1 at 13 and ECOBANK NIGERIA LTD vs. HONEYWELL FLOUR MILLS PLC (2018) LPELR (45124) 1 at 9-11. The repetition of the submissions already made in the appellant’s brief in the reply brief, will not improve the quality of the submissions or make them acceptable, if they were ordinarily unacceptable: FSB INTERNATIONAL BANK vs. IMANO NIG LTD (2000) 7 SCNJ 65 at 70, MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) LPELR (1916) 1 at 13 and IGWE vs. THE STATE (2021) LPELR (53499) 1 at 3-4.
In OLAFISOYE vs. FRN (2004) 1 SC (PT II) 27 or (2004) 4 NWLR (PT 864) 580 at 644, Tobi, JSC stated:
“The main purpose of a reply brief is to answer any new points arising from the respondent’s brief … A reply brief is filed when an issue of law or argument raised in the respondent’s brief calls for a reply … Where a reply is necessary, it should be limited to answering new points arising from the respondent’s brief. A new point is a fresh point, which was raised by the respondent in his brief. A reply brief cannot be used to strengthen the appellant’s brief by way of repeating arguments made in the appellant’s brief. A reply brief is not a recitation of the appellant’s brief.”
See also MOZIE vs. MBAMALU (2006) 15 NWLR (PT 1003) 460 at 469, OKONJI vs. NJOKANMA (1999) 12 SCNJ 259 at 277 and PROJECT VISION ACTUALIZERS LTD vs. ILUSHIN ESTATES LTD (2021) LPELR (55629) 1 at 27-28.
The Appellants’ counsel conceded that the Appellants’ Reply Brief is repetitive of the submissions in the Appellants’ Brief. This is not the essence, function or purpose of a reply brief. A reply brief is to refute the arguments in the Respondent’s brief which were not taken in the Appellant’s brief. Since the Appellants’ Reply Brief in this matter is essentially repetitive of the argument in the Appellants’ Brief, it will be feckless to review the submissions therein since it is not a proper reply brief. Consequently, I will discountenance the said Reply Brief and it would play no part in the resolution of this appeal. See OGUANUHU vs. CHIEGBOKA (2013) LPELR (19980) 1 at 17, ONWUDIWE vs. FRN (2006) LPELR (2715) 1, EROMOSELE vs. FRN (2018) LPELR (43851) 1 at 11, AKAYEPE vs. AKAYEPE (2009) LPELR (326) 1 at 18-19, AGBONENI vs. ALAKIU (2018) LPELR (44807) 1 at 14-15 and ONEMU vs. COMMISSIONER FOR AGRICULTURE & NATURAL RESOURCES, ASABA (2019) LPELR (47391) 1 at 5-7.

The Appellants distilled three issues for determination, videlicet:
1. WHETHER THE LOWER COURT WAS RIGHT WHEN IT CONFERRED JURISDICTION ON THE TRIAL COURT OVER A LAND MATTER WHICH VALUE EXCEEDS FIVE HUNDRED THOUSAND NAIRA (N500,000.00) OR IN WHICH THE RENTAL VALUE EXCEEDS ONE HUNDRED THOUSAND NAIRA (N100,00.00).
2. WHETHER THE LOWER COURT WAS RIGHT WHEN IT CONFERRED JURISDICTION ON THE TRIAL COURT BY IMPORTING THE PROVISIONS OF SECTION 41 OF THE LAND USE ACT, 1978.
3. WHETHER THE LOWER COURT WAS RIGHT WHEN IT HELD THAT THE APPELLANTS DID NOT OBTAIN LEAVE OF COURT FROM THE TRIAL COURT BEFORE APPEALING TO THE CUSTOMARY COURT OF APPEAL CONTRARY TO ORDER 18 RULE 2 (1) OF THE CUSTOMARY COURT RULES OF OGUN STATE.

The Respondent equally formulated three issues for determination, scilicet:
1. Whether the Lower Court has jurisdiction to hear (and) determine the land matters that are within the jurisdiction of the Court.
2. Whether by the provision of Section 41 of the Land Use Act, 1978 the Customary Court of Ogun State has jurisdiction on land matters.
3. Whether the Honourable Lower Court held that the Appellant did not obtain leave of the Honourable lower Court on the records of the Court.

The Respondent in his brief of argument contended that the Appellants’ issue number three which is akin to the Respondent’s issue number three is misconceived as the lower Court never held that the Appellants required leave to appeal. Now, the Appellants’ issue number three is crafted from ground three of the Notice of Appeal. The said ground shorn of its particulars at page 142 of the Records reads as follows:
“The lower Court erred in law when it held that the Appellants did not obtain Leave of Court from the Customary Court Grade II before appealing to the Customary Court of Appeal contrary to Order 18 Rule 2 (1) of the Customary Court Rules of Ogun State.”

The above ground complains about the lower Court having held that the Appellants did not obtain leave of the trial Court before appealing to the lower Court contrary to the provisions of Order 18 Rule 2 (1) of the Customary Court Rules of Ogun State. But did the lower Court so hold? We turn to the Records of Appeal. The lower Court at page 136 of the Records reviewed the submissions of the Respondent’s counsel that the Appellants, not having appealed within fourteen (14) days of the ruling of the trial Court, affirming its jurisdiction, can only appeal against the said ruling with leave of the lower Court. In resolving this contention, the lower Court held as follows at page 136 of the Records:
“The position of the law is that the issue of jurisdiction can be raised at any stage of the proceedings, even on appeal for the first time.”

It then conclusively held as follows at page 137 of the Records:
“Based on the authorities therefore and having regard to the nature of the complaint against the proceedings and judgment of the lower Court, I do not agree with the respondents’ counsel that the appellants have lost their right to raise the issue of jurisdiction in this appeal. I hold that the issue of jurisdiction which is the fulcrum of this appeal, is properly before us.”

It is effulgent from the above periscope that the lower Court never held that the Appellants required leave to appeal and that they did not obtain leave of the trial Court before appealing which is the linchpin of the complaint in ground 3 of the grounds of appeal and the issue distilled therefrom.

It is abecedarian law that grounds of appeal must arise from the decision appealed against. The grounds of appeal are not crafted in nubibus. As already stated, the lower Court did not hold that the Appellants required leave to appeal and that they did not obtain leave of the trial Court before appealing. Where a ground of appeal is not rooted in the decision appealed against, the ground of appeal is incompetent and ought to be discountenanced by the Court. The ground of appeal and the issue distilled therefrom are liable to be struck out: MERCANTILE BANK OF NIG PLC vs. NWOBODO (2005) 10-11 SCM 168, OBA vs. EGBERONGBE (1999) LPELR (2146) 1 at 5-6 and OKAFOR vs. ABUMOFUANI (2016) LPELR (40299) 1 at 15. Ground three (3) of the grounds of appeal which does not arise from the decision of the lower Court and the issue number three nominated therefrom are therefore struck out.

The respective issue number three formulated by the parties having been struck out, the surviving issues are issue numbers one and two. The said issues deal with the jurisdiction of the trial Court to entertain the action. Having trenchantly considered the said surviving issues, it seems to me that there is a need to reformulate the issues in order to give the issues precision and clarity, so as to conduce to the utmost pellucidity by bringing out the pith of the contention in the interest of accuracy and brevity. See UNITY BANK PLC vs. BOUARI (2008) ALL FWLR (PT 416) 1825 at 1846-1847 and MUSA SHA (JNR) vs. DA RAP KWAN (2000) 5 SCNJ 101 at 127. In this wise, a sole issue will suffice; accordingly, the coalescent distensible issue on the basis of which I will consider the submissions of learned counsel and resolve this appeal is:
“Whether the trial Court had jurisdiction to entertain the Respondent’s action.”

SUBMISSIONS OF THE APPELLANTS’ COUNSEL
It is the Appellants’ contention that every Court derives its authority from the statute creating it and that the trial Court derives its authority from the Customary Courts (Amendment) Law of Ogun State, 2017, and therefore it should operate within the provisions of the law creating it. It was submitted that by the First Schedule to the Customary Courts (Amendment) Law of Ogun State, 2017, which sets out the civil jurisdiction of Customary Courts, the trial Court, a Customary Court Grade II, does not have jurisdiction in land matters where the value of the land exceeds N500,000.00 or where the annual rental value exceeds N100,000.00.

It was opined that the value of the disputed land is about N8.8million and that the trial Court erred in assuming jurisdiction when the Respondent failed to comply with Order 3 Rule 3 (3) of the Customary Courts Rules, which provides that the value of the land should be stated in an application for summons. It was further stated that by Order 3 Rule 1 of the Customary Courts Rules, a civil cause or matter is to be instituted in the lowest Court which has jurisdiction to entertain the particular cause or matter.

It was submitted that jurisdiction is a fundamental prerequisite to the adjudication of any matter which can be raised at any stage of the proceedings, even on appeal. Proceedings conducted without jurisdiction, it was stated, are a nullity. The cases of FGN vs. OSHIOMOLE (2004) 3 NWLR (PT 806) 305 at 309-310, OGUNDE vs. GATEWAY TRANSIT LTD (2010) 8 NWLR (PT 1196) 207 at 211, AKEGBEJO vs. ATAGA (1998) 1 NWLR (PT 534) 459 at 461, OKOLO vs. UNION BANK (2004) 3 NWLR (PT 859) 87 at 93, UTIH vs. ONOYIVWE (1991) 1 NWLR (PT 166) 166 at 172 and EZE vs. A-G RIVERS STATE (2002) 1 MJSC 87 at 93 were referred to.

Still in argument, the Appellants submit that the Customary Courts Law of Ogun State as amended, is not inconsistent with Section 41 of the Land Use Act and therefore cannot be void, as the said Section 41 of the Land Use Act gives full effect to the Laws creating Customary or Area Courts of various States in Nigeria. It was conclusively submitted that a Court’s jurisdiction is confined, limited to and circumscribed by the statutes creating it and that a Court must not give itself jurisdiction by misconstruing the statute that created it vide EGHAREVBA vs. ERIBO (2010) 9 NWLR (PT 1199) 411 at 419.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The conspectus of the Respondent’s argument is that the Appellants in their preliminary objection to the jurisdiction of the trial Court did not state the sum of N8.8million as the value of the land and that the submission of this amount in the Appellants’ brief is not supported by the Records. It was posited that the Records of Appeal binds both the Court and the parties. The cases of LSWC vs. SAKAMORI CONSTRUCTION (NIG) LTD (2012) ALL FWLR (PT 632) 1745 at 1768-1769, OGUNTAYO vs. ADELAJA (2009) ALL FWLR (PT 495) 1626 or (2009) 15 NWLR (PT 1163) 150 and NWORA vs. NWABUNZE (2012) ALL FWLR (PT 613) 1824 at 1838 were relied upon.

The further submission of the Respondent is that by Section 41 of the Land Use Act, the trial Court is clothed with jurisdiction to adjudicate on land matters, based on the provisions of the First Schedule to the Customary Courts (Amendment) Law of Ogun State and that every Court is guided by the statute that created it. The case of LEKWOT vs. JUDICIAL TRIBUNAL (1997) 8 NWLR (PT 515) 22 was called in aid.

RESOLUTION
It is rudimentary law that the issue of jurisdiction is fundamental. The importance of jurisdiction in the adjudicatory process cannot be over-emphasised. Jurisdiction is a fundamental pre-requisite in the adjudication of any matter. It is the fons et origo, the threshold of judicial power and judicialism. It is the bloodline, lifeline, livewire and indeed the spinal cord of a Court of law: A-G OYO STATE vs. NLC (2003) 8 NWLR (PT 821) 1 at 26, ODEDO vs. INEC (2008) 17 NWLR (PT 1117) 544, OKOLO vs. UNION BANK (supra) and UTIH vs. ONOYIVWE (supra).

Where a Court does not have jurisdiction in a matter, its decision, no matter how brilliantly arrived at, and even if correct, is a nullity. See UNION BANK vs. BEAR MARINE LTD (2018) LPELR (43692) 1 at 24, FHA vs. OLAYEMI (2017) LPELR (43376) 1 at 81-82, A-G LAGOS vs. DOSUNMU (1989) LPELR (3154) 1 at 10 and OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 at 520.

It is now settled law that jurisdiction is conferred on a Court by the Constitution or other statutory enactment establishing the Court. A Court cannot without an enabling law empowering it, exercise any jurisdiction. Put differently, it is the statute which creates the Court that defines its jurisdiction. The jurisdiction of the Court must be apparent on the face of the statute, it is not to be inferred or imagined, neither does it require a searchlight to discover. See BRAITHWAITE vs. GDM (1998) 7 NWLR (PT 557) 307 at 332, SHELIM vs. GOBANG (2009) 12 NWLR (PT 1156) 435 at 452, OLORUNTOBA-OJU vs. ABDUL-RAHEEM (2009) 13 NWLR (PT 1157) 83 at 125, OBI vs. INEC (2007) 11 NWLR (PT 1046) 565 at 669 and LAWAL vs. EFCC (2020) LPELR (49590) 1 at 11-20.

Now, the trial Court is a creature of the Customary Courts Law of Ogun State. It is not confuted that the Respondent’s action at the lower Court was in respect of a land matter. The Customary Courts (Amendment) Law of Ogun State, 2017 confers jurisdiction on the trial Court in land matters. Equally, it is not confuted that the disputed land in this matter is situate in a non-urban area. It is in this wise that the lower Court held as follows at page 138 of the Records:
“The land in dispute is situate in a non-urban area. By virtue of Section 41 of Land Use Act 1978, the subject-matter of the suit falls withing [sic] the territorial jurisdiction of a customary Court.”

Contrary to the submission of the Appellants, the lower Court did not hold that the Customary Courts Law of Ogun State is inconsistent with Section 41 of the Land Use Act. The lower Court merely held that since the disputed land was in a non-urban area, that it was within the territorial jurisdiction of a Customary Court.

But was the trial Court such a Customary Court with jurisdiction to adjudicate upon the matter in the diacritical circumstances of this case?
We turn to the First Schedule to the Customary Courts (Amendment) Law which sets out the civil jurisdiction of the trial Court in land matters as follows:
“Causes or matters in which the value of the land does not exceed Five Hundred Thousand (N500,000.00) Naira or in which the rental value does not exceed One Hundred Thousand (N100,000.00) Naira per annum.”
So clearly, the trial Court has jurisdiction in land matters; but the extent of its jurisdiction is limited to causes or matters in which the value of the land does not exceed N500,000.00 or the rental value does not exceed N100,000.00.

In the circumstances of this matter, is the disputed land within the limits of the jurisdiction of the trial Court? Order 3 Rule 3 (3) of the Customary Courts Rules requires a party when making an application for summons in a land matter to state the value of the land. The Respondent did not comply with this provision, so the value of the land was not before the trial Court for purposes of ascertaining whether the land was within the limits of its jurisdiction. The Appellants in their submission have put the value of the land at N8.8million. This is the submission of the learned counsel as the Appellants boycotted the proceedings at the trial Court so they did not adduce any evidence, neither did they cross-examine the Respondent and his witnesses as to the value of the land.

It is hornbook law that the dexterous submissions from the sabre-rattling forensic arsenal of learned counsel cannot take the place of evidence which is lacking in a case: ISHOLA vs. AJIBOYE (1998) 1 NWLR (PT 532) 71 at 93, ARO vs. ARO (2000) 12 WRN 51 at 65 and BFI GROUP CORP vs. BPE (2012) 18 NWLR (1332) 209 at 244. This is how Tobi, JSC stated the legal position in KAZEEM vs. MOSAKU (2007) 17 NWLR (PT 1064) 523 at 535:
“Counsel qua advocate is the owner of the law in the sense of expertise while the facts of the case are owned by the party in the sense of possession, knowledge and intimacy. While the party cannot dabble into the domain of the law, which belongs to counsel, counsel cannot dabble into the domain of the facts, which belong to the party. Such is the clean and clear division of labour, though not in the strict use of the expression in the law of economics. As there are no facts upon which the submission of Counsel can be based, it should be rejected, and I reject it.”

There are no facts and no evidence on which the valuation of N8.8million by learned counsel can be based. It is accordingly rejected. But then, it is the duty of the Respondent under Order 3 Rule 3 (3) of the Customary Courts Rules to state the value of the land. He did not comply. What is the implication of this? The lower Court addressed this at pages 138-139 of the Records and held that it was an irregularity which did not rob the trial Court of jurisdiction to entertain the action. Hear the lower Court:
“The seemingly relevant issue canvassed on behalf of the appellants is in respect of the failure of the plaintiff/respondent to endorse on his claim before the Court, the value of the land in dispute. In other words, non-compliance with Order 3 Rule 3 (3) of the Customary Court Rules. What is the effect of this non-compliance? This to me is the crux of the matter in this appeal. The appellants’ counsel cited several authorities on the effect of jurisdiction or lack of it on adjudication. I had referred to the submissions of Mr. Rashidi, learned counsel for the appellants earlier in this judgment. However, counsel did not cite any direct authority on the question posed above, i.e. whether the non-compliance with Order 3 Rule 3 (3) of Customary Courts Rules in the commencement of the suit culminating in this appeal is fatal to the case of the respondent before the lower Court. The position of the law is that where the non-compliance does not affect the jurisdiction of the Court, or the substance of the matter to the extent that the merits of the case are ruined, the Court would take the non-compliance as an irregularity. See Zakari vs. Nigerian Army & Anor. (2015) LPELR-24721(SC). The land in dispute is situate in a non-urban area. By virtue of Section 41 of Land Use Act 1978, the subject-matter of the suit falls withing [sic] the territorial jurisdiction of a customary Court. Prima facie therefore, the lower Court has jurisdiction to entertain the claims, in the absence of evidence to the contrary. It is my humble opinion that the non-compliance with Order 3 Rule 3 (3) of the Customary Courts Rules in this case does not rob the lower Court of jurisdiction to entertain the suit.”

Was the lower Court correct in its finding above? The answer is blowing in the wind as the Appellants did not appeal against this finding. It is trite law that findings of facts which have not been appealed against stand admitted and undisputed. They remain valid, subsisting and binding on all the parties. See COMMERCE ASSURANCE LTD vs. ALLI (1992) 3 NWLR (PT 232) 710, OLUKOGA vs. FATUNDE (1996) LPELR (2623) 1 at 8, ANYANWU vs. OGUNEWE (2014) LPELR (22184) 1 at 47, DABO vs. ABDULLAHI (2005) LPELR (903) 1 at 24 and FBN PLC vs. OZOKWERE (2013) LPELR (21897) 1 at 20. The concomitance is that since this finding has not been challenged, this Court cannot interrogate whether it is fatal that the Respondent did not comply with the stipulations of Order 3 Rule 3 (3) of the Customary Courts Rules. The necessary implication therefore, and as held by the lower Court, is that there is no evidence that the value of the disputed land was beyond the limit of the extent of the jurisdiction of the trial Court. The decision of the lower Court at page 138 of the Records that prima facie, the lower Court has jurisdiction to entertain the claims in the absence of evidence to the contrary can therefore not be faulted.

As I begin to windup this judgment, let me state that, even though it was not raised by the parties, I actually mulled over the competence of this appeal, given the fact that it is not in respect of a question of customary law. Section 245 (1) of the 1999 Constitution stipulates as follows:
“245 – (1) An appeal shall lie from decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly”
I am not aware of any Act of the National Assembly which has legislated for such other matters where an appeal shall lie from the decision of the Customary Court of Appeal to the Court of Appeal. So the present-day reality is that as stipulated in Section 245 (1) of the Constitution, appeals lie to this Court from decisions of the Customary Court of Appeal with respect to any question of customary law. Is the Appellants’ appeal with respect to any question of customary law?
By the provisions of Section 245 (1) of the 1999 Constitution, the grounds of appeal on the basis of which this Court can exercise the jurisdiction conferred on it by the Constitution to entertain an appeal from the decision of the Customary Court of Appeal, must be with respect to any question of customary law.

The Appellants’ grounds of appeal at pages 141-142 of the Records are not with respect to any question of customary law. The grounds of appeal deal with the crucial and radical question of jurisdiction of the trial Court to adjudicate. In the circumstances, is this appeal which interrogates the issue of jurisdiction competent? The apex Court had taken the position that this Court will not have jurisdiction to entertain such an appeal that raises the question of competence and jurisdiction, since it is not a question of customary law. See PAM vs. GWOM (2000) LPELR (2896) 1 at 23-24 and HIRNOR vs. YONGO (2003) 9 NWLR (PT 824) 77. It does however appear that the apex Court has revisited its stance on appeals from a Customary Court of Appeal which raise jurisdictional questions. In NWAIGWE vs. OKERE (2008) LPELR (2095) 1 at 26, 27-28, while holding that an appeal can lie in such circumstances since the issue of jurisdiction is a question of customary law, Onnoghen, JSC (later CJN) stated:
“… an issue of jurisdiction of a Court or Tribunal, be it Customary or English, is strictly a matter of law – Customary or English or whatever. It is not a question or issue or matter of facts… I hold the considered view that a question of jurisdiction of a Court or Tribunal is of universal application to every civilized society or community whether Customary or English.
In the case of Madukolu vs. Nkemdilim (1962) 1 All NLR5 87 at 595, which incidentally originated from the Native Court of Mbachete in the then Eastern Nigeria, jurisdiction is said to encompass the following:- ‘Put briefly, a Court is competent when –
(1) it is properly constituted as regards numbers and qualifications of the 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; and
(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.
Any defect in competence is fatal, for the proceedings are a nullity however, well conducted and decided; the defect is intrinsic to the adjudication.’
It is therefore clear from the above statement of the law by this Court that jurisdiction is the life wire or blood that gives life to any adjudication in whatever system of law that comes into focus, be it customary law or English law. We should not forget that English law also includes the English Common Law which does not enjoy a higher legal status than our customary law. It follows therefore that since the concept of jurisdiction is of universal application and known to customary law when applied to Customary Courts, an error of jurisdiction by a Customary Court or Customary Court of Appeal which is a defect intrinsic to the adjudication, is an issue or question of customary law within the meaning of Sections 247 (1) and 224 (1) of the 1979 Constitution and therefore appealable as an issue of customary law up to the Supreme Court. To hold otherwise is to kill the development of that branch or system of adjudication in this country, as there would be no means of checking the excess or absence of jurisdiction in the relevant Courts and thereby encourage adjudication far in excess or absence of jurisdiction in the relevant Customary Courts, be it of first instance or appellate.”
I kowtow to this decision of the apex Court. Section 224 (1) of the 1979 Constitution which was applied and interpreted in the said case is in pari materia with Section 245 (1) of the 1999 Constitution, which is the applicable provision in this matter. It is predicated on the views so eloquently expressed by the apex Court in NWAIGWE vs. OKERE (supra) that I derived fortification to consider this appeal on the merits, since the concept of jurisdiction is of universal application. See OMUZAGA vs. OMUZAGA (2015) LPELR (24903) 1 at 17-21 (per Ogakwu, JCA) and OHIAERI vs. ORISAKWE (2018) LPELR (45019) 1 at 34-36 (per Awotoye, JCA).

Slowly but surely we have arrived at the harbour and it is now time to berth the vessel that is this judgment at the quays. In conflation, the distensible issue for determination as distilled by the Court must indubitably be resolved against the Appellants. The appeal being bereft of any merit fails and it is hereby dismissed. The decision of the lower Court delivered on 25th February 2020 is hereby affirmed. The sum of N100,000.00 is awarded as costs in favour of the Respondent.

ABBA BELLO MOHAMMED, J.C.A.: It is settled law that jurisdiction is fundamental to adjudication. It is jurisdiction that donates competence upon the Court to adjudicate over a matter. A Court is only competent to adjudicate over a matter if it has the jurisdiction to do so. It is only when a Court has jurisdiction that it will have the judicial power and authority to entertain, hear and adjudicate upon a cause or matter: MADUKOLU v NKEMDILIM (1962) 1 SCNLR 341; IKPEKPE v WARRI REFINERY & PETROCHEMICAL CO. LTD & ANOR (2018) LPELR-44471(SC); and KURMA v SAUWA (2018) LPELR-46317(SC).

Being at the heart of the competence of a Court to entertain a cause or matter, jurisdiction must be expressly conferred upon the Court by the Constitution or by the Statute establishing it. Jurisdiction is therefore, a matter of strict law which neither lends itself to speculation nor inference. It cannot be donated to the Court by the parties. See: APC & ORS v ENUGU STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2021) LPELR-55337(SC), per Kekere-Ekun, JSC at pages 33–34, para. F; and OKORO & ORS v EGBUOH & ORS (2006) LPELR-2491(SC), per Tobi, JSC at pages 24–25, para. F.

The instant appeal relates to whether the trial Court, a customary Court in Ogun State has jurisdiction to entertain a land matter in a non-urban area. The Appellants have contended that the value of the land in question is about N8.8 Million and that the trial Court was wrong to assume jurisdiction when the Respondent had failed to state the value of the land in his summons as mandated by Order 3 Rule 3 (3) of the Customary Courts Rules. It is however apparent that the value of N8.8 Million ascribed to the land by the Appellants is not borne out by the Record of Appeal but merely a submission of learned Counsel for the Appellants. It is settled law that the parties and the appellate Courts are bound by the Record of Appeal. An appellate Court has no jurisdiction to go outside the Record of Appeal in search of evidence: LARMIE v DATA PROCESSING MAINTENANCE & SERVICES LTD (2005) LPELR-1756(SC), per Tobi, JSC at page 40, para. D. The value of N8.8 Million contained in the submission of the Appellants’ Counsel cannot be a substitute for the missing evidence as to the value of the land in question: OYEYEMI & ORS v OWOEYE & ANOR (2017) LPELR-41903(SC), per Bage, JSC at page 30, para. C; and AYANWALE v ODUSAMI (2011) LPELR-8143(SC), per Fabiyi, JSC at pages 23–24, para. E.

In the instant appeal, it is not only that there is no evidence of the value of the land in question, but the Appellants have also failed to challenge the finding of fact made by the trial Court to the effect that the failure of the Respondent to endorse the value of the land on his claim, as required by Order 3 Rule 3 (3) of the Customary Court Rules, does not affect the jurisdiction of the Court since the land in question is situate in a non-urban area, which by Section 41 of the Land Use Act, 1978 falls within the jurisdiction of a customary Court.

It is trite law that the effect of failure to challenge on appeal, a finding or decision of the trial Court is that the finding/decision remains valid and binding upon the parties: OPARA v DOWEL SCHLUMBERGER (NIG) LTD & ANOR (2006) LPELR-2746(SC), per Onnoghen, JSC (as he then was) at page 19, para. A. The Appellants herein are therefore estopped by their failure to challenge that finding of fact relevant to the determination of the trial Court’s jurisdiction: ABUBAKAR v BEBEJI OIL & ALLIED PRODUCTS LTD (2007) LPELR-55(SC), per Ogbuagu, JSC at page 68, para. E. I find that the failure of the Appellants to challenge the finding/decision of the trial Court that there was no evidence that the value of the land was beyond the limits of its jurisdiction is fatal to the Appellant’s appeal.

For the above and the more succinct reasons ably espoused in the lead judgment of my learned brother, Ugochukwu Anthony Ogakwu, JCA, I also find this appeal devoid of merit. Accordingly, I join in dismissing same and affirming the decision of the lower Court delivered on 25th February, 2020. I abide by the order as to costs.

ABDUL-AZEEZ WAZIRI, J.C.A.: I have read in draft the lead judgment of my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA. I entirely agree with the reasonings and conclusions therein which for my inability to improve on, I adopt as mine in dismissing the appeal. I abide by the consequential orders in the lead judgment including that on costs in favour of the Respondent, but against the Appellants.