ADISA (DEFENDANT/APPELLANT)
v.
OYINWOLA AND 4 OTHERS (PLAINTIFFS/RESPONDENTS)
(2000) All N.L.R. 453
Division: Supreme Court of Nigeria
Date of Judgment: 23 June 2000
Case Number: SC 304/1991
Before: Michael Ekundayo Ogundare; Uthman Mohammed; Sylvester Umaru Onu; Anthony Ikechukwu Iguh; Aloysius Iyorgyer Katsina-Alu; Samson Odemwingie Uwaifo; Emmanuel Olayinka Ayoola, JJSC
ISSUES
Whether the jurisdiction of the High Court was confined to proceedings in respect of a statutory right of occupancy granted by the Governor or whether it also had jurisdiction in respect of proceedings relating to a customary right of occupancy granted by a Local Government pursuant to Section 41 of the Land Use Act?
Whether Section 41 of the Land Use Act curtailed the unlimited jurisdiction of the High Court prescribed by Section 236(1) of the 1979 Constitution?
Whether the High Court of Oyo State had jurisdiction to declare a customary right of occupancy pursuant to the Land Use Act?
Whether the Supreme Court decisions in Salati v Shehu, Sadikwu v Dalori (1986) 1 NWLR (Part 15) 98 and Oyeniran v Egbetola (1997) 5 NWLR (Part 504) 122 were wrong and should be reviewed?
Whether the trial Judge was correct to have entertained Evidence of Tradition as permitted by Section 45 of the Evidence Act and enunciated in Kojo II v Bonsie (1957) 1 NWLR 1223, when the grant in question was within living memory?
Whether the correct parties had been joined so that the case was properly constituted?
FACTS
The plaintiffs/respondents (referred to as the plaintiffs) claimed that the land in dispute was the property of Ikolaba Chieftaincy. It was averred that the plaintiffs' ancestor settled at a place called Ogunte Kekere and thereafter moved to another place called Ogunte Nla/Iju where the land now in dispute was situate. The title claimed by the plaintiffs was one by grant sometime in 1940. As a result of this "assignment" the eleven chiefs in Igbetti, including Ikolaba, had lands "allocated" to them. This became the land of Ikolaba Chieftaincy family (in dispute).
The defendant/appellant (referred to as the defendant) was sued in his personal capacity because, it was alleged that he trespassed on the land sometime in 1981. The defendant's defence was that the land belonged to his family, the Asunmode family. He averred that allocation of land to Igbetti chiefs was merely for the purpose of enabling them to collect customary tributes from tenant farmers who were not indigenes of Igbetti.
The area claimed by the plaintiffs was 74.25 hectares, of which the area allegedly trespassed on by the defendant was relatively minute.
The plaintiffs claimed in the High Court of Oyo State a declaration of title to a customary right of occupancy to the disputed land, N1,000 damages for trespass and perpetual injunction to restrain the defendant from further acts of trespass. The land was not in an urban area and therefore subject to a customary right of occupancy. The defendant claimed that the trial High Court had no jurisdiction to entertain the action by virtue of the provisions of Section 41 of the (Land Use) Act. The plaintiffs contended that Section 41 of the Land Use Act, 1978 did not oust the jurisdiction of the High Court.
The High Court entered judgment for the plaintiffs, granting the declaration sought, awarded damages against the defendant for trespass and restrained him from committing further acts of trespass on the land in question. The defendant's appeal to the Court of Appeal was dismissed. He further appealed to the Supreme Court.
HELD
1. On the power of the Supreme Court to overrule previous decisions
The Supreme Court will not depart from its previous decision merely because of superior argument. Before it overrules its previous decision it must be persuaded that such a decision is a vehicle of injustice. Per Ayoola JSC at page 462.
2. Oyeniran v Egbetola incorrect
There are compelling reasons why the decision in Oyeniran v Egbetola should be overruled and departed from. First, the decision was given without regard to Section 236(1) of the 1979 Constitution. Second, it was given in reliance on the (per curiam) decision in Sadikwu v Dalori. Per Ayoola JSC quoting from the judgment of Obaseki JSC at page 462.
3. Only the Constitution can limit High Court jurisdiction
The provisions of Section 236(1) of the 1979 Constitution did not permit the jurisdiction of the High Court of a State to be limited other than as the Constitution itself may have provided. Whereas Section 39 of the Land
Use Act expressly excluded courts other than the High Court from exercising jurisdiction in matters specified therein, no such exclusion was expressed in Section 41 of the Land Use Act. The omission of the word "exclusive" to qualify the jurisdiction vested in inferior courts under Section 41 of the Act is an unmistakable indication that they did not intend to confer such exclusive jurisdiction on those courts. Per Ayoola JSC at page 462.
4. Jurisdiction of High Court not limited in respect of customary land rights
Section 41 of the Act does not circumscribe the unlimited jurisdiction of the State High Courts in land matters whether situate in urban or rural areas. The Land Use Act does not oust the jurisdiction of the State High Courts in respect of disputes over land subject to a customary right of occupancy. The High Courts have concurrent original jurisdiction (with area or customary courts) in respect of claims pertaining to land subject to customary right of occupancy granted by a Local Government under the Act.
5. Construction of statute by implication
The literal meaning of a section of a statute may be clear, but there may be a degree of obscurity and ambiguity in the effect of the statute. In such a case recourse may be had to construction by implication. Per Ayoola JSC at page 462.
6. Presumption against restricting courts' jurisdiction
The law presumes against construing statute so as to oust or restrict the jurisdiction of a superior court of record unless there is explicit expression to that effect in the legislation. Only the Constitution can curtail the unlimited jurisdiction of the High Court which it had granted. Per Ayoola JSC at page 462.
7. Concurrent jurisdiction affirmed
Concurrent jurisdiction is sensible in order to preserve the right of a litigant to choose his forum in respect of non-urban land.
8. Claim of recent grant must be proved
Where the plaintiffs rely on acquisition of title by grant, proof of such grant by traditional history arises only where the fact of grant was so ancient as to be beyond the memory of living witnesses. Facts which are within living memory are properly to be proved by evidence of living witnesses and not by evidence of tradition permitted by Section 45 of the Evidence Act. Kojo II v Bonsie & others (1957) 1 WLR 1223 at 1226 and the Nigerian cases that followed that case were inapplicable. Per Ayoola JSC at page 462.
9. Finding of grant not based on claim pleaded or proved
The court's finding that the plaintiffs had obtained the grant of land from the Onigbeti Chieftaincy Family was based on a claim neither pleaded nor proved by the plaintiffs. The plaintiffs' case was flawed by the failure to prove the grant alleged.
10. On joinder of proper defendants
The defendant was alleged to be a trespasser over a very minute portion of a vast area of land to which the plaintiffs sought a declaration of title. Yet the plaintiffs claimed from him a declaration of customary right of ownership over a vast area, without joining the proper defendants, the family.
Appeal allowed. Decision of trial court and Court of Appeal set aside.
Retrial by High Court of Oyo State ordered.
Plaintiffs at liberty to apply to join the defendant's family and to amend their pleadings accordingly.
Olaseni Okunloye (with him Olayinka Bolanle) for the defendant/appellant.
Kolawole Esan (with him Miss Folorunso Lufadeju) for the plaintiffs/respondents.
As amici curiae:
Godwin Kanu Agabi, SAN-Attorney-General of Nigeria (with him Mrs Y. O. Fasade-Director of Civil Litigation, F.K. Bebu-Principal Legal Officer, Rotimi Jacobs and Emmanuel Akpomudje.
Kehinde Sofola, SAN (with him Dr O. Sofola and Halima Umar Erena).
C. O. Akpamgbo, SAN (with him I. C. Anumudu and Miss Racheal Ordu).
Dr Y. Kayode-Adedeji- Attorney-General, Osun State (with him A. O. Adeniyi-State Counsel)
Miss O. O. Bello for Alhaji Abdulahi Ibrahim, SAN.
B. R. Makanju
Kola Babalola.
The following cases were referred to in this judgment:
Nigeria
Abioye v Yakubu (1991) 5 NWLR (Part 190) 130
Acqua Limited v Ondo State Sports Council (1990) 4 NWLR (Part 91) 622
Adani v Igwe [1957] NSCC 84
Adediran & another v Interland Transport Limited (1991) 9 NWLR (Part 214) 155
African Newspapers v Federal Republic of Nigeria (1985) 2 NWLR (Part 6) 137
Ahmed v Kassim (1958) 3 FSC 51
Akinsanya v UBA Ltd (1986) 4 NWLR (Part 35) 237
Akintola v Oyelade (1993) 3 NWLR (Part 282) 379
Awote v Owodunmi (No 2) (1987) 2 NWLR (Part 57) 367
Board of Customs and Excise v Barau (1982) 10 SC 48
Bronik Motors Ltd & another v Wema Bank Ltd (1983) 6 SC 158
Bucknor-Maclean v In-laks (1980) 8-11 SC1
Chief FRA Williams v Daily Times of Nigeria Limited (1990) 1 NWLR (Part 124)
Clement v Iwuanyanwu (1989) 3 NWLR (Part 107) 39
Commissioner of Lands v Kadiri Adigun (1937) 3 WACA 206
Davies Jenkins and Co Ltd v Davies (1967) 2 WLR 1139
Ebiteh v Obiki (1992) 5 NWLR (Part 243) 599
Egbe v Yussuf (1992) 6 NWLR (Part 245)
Ekpere v Aforije (1972) All NLR (Part 1) 220
Eperokun v University of Lagos (1986) NWLR 162
Gabriel Tewogbade v Obadina (1994) 4 NWLR (Part 338) 326
Garuba Abioye & others v Sa'adu Yakubu & 6 others (1991) 5 NWLR (Part 190) 130-256
Idundun & others v Okumagba & others [1976] Vol. 10 NSCC 446
Ifezue v Mbadugha (1984) 1 SCNL 427
Imah v Okogbe (1993) NWLR (Part 316) 159
Ishola v Ajiboye (1994) 1 NWLR (Part 352) 506
Jamal Steel Structives Ltd v African Continental Bank Ltd (1973) 11 SC 77
Kalu v Odili (1992) 5 NWLR (Part 240)
Kojo II v Bonsie & others (1957) 1 WLR 1223
Layanju v Araoye (1961) 1 SCNLR 139; All NLR 90
Lenboye v Ogunsiji (1990) 6 NWLR (Part 155) 210
Madukolu & others v Nkemdilim (1962) 1 All NLR 587
Mohammed & another v Olawunmi & others (1990) 2 NWLR (Part 133) 458
Nafiu Rabiu v Kano State (1980) 8-11 SC 130
National Bank of Nigeria Ltd v Weide & Co (Nig) Ltd (1996) 8 NWLR (Part 465) 150
Nkwocha v Governor of Anambra State (1984) 6 SC 362
Odigie v Obiyan (1997) 10 NWLR (Part 524) 179
Odofin v Ayoola [1984] NSCC, 711, 731
Ogbunyiya v Okudo (1979) All NLR 105
Ojogbue v Nnubia (1972) 1 All NLR 226
Okulate v Awosanya (2000) 2 NWLR (Part 646) 530
Oro v Falade (1995) 5 NWLR (Part 396) 385
Osumanu v Seidu (1949) 12 WACA 437
Oyeniran v Egbetola (1997) 5 NWLR (Part 504) 122
Oyo State Okpiri v Jonah (1961) 1 All NLR 102; (1951) ANLR 112
Rossek v African Continental Bank Ltd (1993) 8 NWLR (Part 312) 382
Sadikwu v Dalori (1996) 5 NWLR (Part 447) 151
Salami v Chairman LEDB (1989) 5 NWLR (Part 123) 539
Salati v Shehu (1986) 1 NWLR (Part 15) 98
Savannah Bank (Nig) Ltd v Ajilo (1989) 1 NWLR (Part 97) 305
Savannah Bank of Nigeria Ltd v Pan Shipping and Transport Agencies Ltd (1987) 1 NWLR (Part 96) 212
Shell BP v Cole (1978) 3 SC 183
Shell Petroleum Development Co (Nig) Ltd v Federal Board of Inland Revenue (1986) 8 NWLR (Part 466) 256
Shodeinde v The Registered Trustees of Ahmaddiya Movement in Islam (1980) 1-2 SC 225
Skenconsult (Nig) Ltd & another v Ukey (1981) 1 SC6 26
Total v Nwako (1978) 5 SCI
Foreign
Barraclough v Brown (1987) AC 615
Barell v Fordree (1932) AC 676
Cartledge v E Jopling and Sons Ltd (1963) AC 758
Francis v Yiewsley and West Drayton Urban District Council (1957) 2QB 136
Pyx Granite Co Ltd v Ministry of Housing and Local Government (1960) AC 260
R v Banbury (Inhabitants) (1834) 1 A and E 136
Thompson v Goold and Co (1910) AC 409
Vickers