The Jurisdiction of Area Courts and Customary Courts over Title to Land: A Review of Olaleye-Ote v Babalola Olaleye-Ote v Babalola
T.A. Yusuf*
Abstract
A decision of the Supreme Court is binding on it and all other lower courts in the hierarchy of courts in the country. This is by virtue of the doctrine of stare decisis et non quieta movere, which means – to stand by what has been decided and not to unsettle things already established. Though judgments of the Supreme Court are final, its justices are not infallible. It is from the foregoing, that the theme of this article stems. Its main thrust revolves round the decision of the Supreme Court in Olaleye-Ote v Babalola (2012) All FWLR (Pt.645) 328 and the focus is on that part of the decision where the court held that a customary court of Ogun State has the jurisdiction to entertain disputes arising from a customary right of occupancy by virtue of section 41 of the Land Use Act, irrespective of the value or rental value of the land as limited by the statute establishing the court. This paper review the case in light of section 41 of the Land Use Act and came to the conclusion that the said provision cannot cannot confer jurisdiction on a customary court of Ogun State without taking into consideration the value or rental value of the land in dispute as provided for by section 16 of the 1st Schedule of the Ogun State Customary Court Edict and other relevant laws stated in the decision under review.
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* LL.B (Hons.), (Unilorin), LL.M (Ife), Senior Lecturer, Nigerian Law School, Kano Campus, taofikyusuflaw@yahoo.co.uk
1. Introduction.
The theme of this case review is on the jurisdiction of an Area Court, Customary Court or other courts of equivalent jurisdiction in a state to resolve disputes over title to land arising from a customary right of occupancy granted by a Local Government Council under section 41 of the Land Use Act when such jurisdiction is limited by the value or rental value of the land in accordance with the provisions of the state legislation establishing such courts.
Section 41 of the Land Use Act provides:
An Area Court or Customary Court or other court of equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings in respect of a customary right of occupancy granted by a Local Government under this Act; and for the purposes of this paragraph proceedings includes proceedings for a declaration of title to a customary right of occupancy and all laws including rules of court regulating practice and procedure of such courts shall have effect with such modifications as would enable effect to be given to this section.
Ogun State Customary Court Edict, section 16 of the 1st schedule provides:
Causes or matters in which the value of the land does not exceed N1, 000.00(One Thousand Naira) or in which the rental value does not exceed N200.00 (Two Hundred Naira) per annum.
2. Facts of the Case
The plaintiff sued the defendants in the Ifo Grade II Customary Court, Ogun State, claiming declaration of title to a disputed land, damages for trespass and injunction restraining further trespass. The annual rent of the property was stated as N500.00 (Five Hundred Naira). The trial court granted plaintiff’s claims. Aggrieved, the defendants appealed to the High Court in its appellate jurisdiction, where the appeal was allowed. Also aggrieved, the plaintiff appealed to the Court of Appeal which set aside the decision of the High Court and restored the trial court’s decision. Dissatisfied, the defendants filed an appeal to the Supreme Court.
The Supreme Court per Galadima, JSC, held inter-alia that:[1]
Assuming that the jurisdiction issue in this appeal can be properly determined solely on the annual rental value of the land in dispute without recourse to the value of the land, I would eventually come to the same conclusion that the lower court was right when it held that irrespective of the grade of the Customary Court in Ogun State, a prospective land claimant can approach any Customary Court within his district in the appropriate Local Government Area. I do not think that that the Constitution intends the mundane categorization or classification of one Customary Court or Area Court as “inferior” or “superior.” I reiterate however that Ogun State is not deprived of the power to create Customary Courts in its area and defining the powers, scope of operation and jurisdiction of these Courts. However their jurisdiction on issue of land is governed by the Land Use Act, 1978, which provides for these courts to cover land cases in rural areas regardless of their value. A litigant is entitled to seek redress in a land matter in any grade of the customary courts regardless of the value of the land.
Likewise, the Court per Ngwuta, JSC held that:[2]
In my humble view, the federal legislature effectively covered the field in relation to the jurisdiction of the relevant courts, over proceedings in matters of customary right of occupancy granted by a Local Government. The State law conferring jurisdiction according to grade and value of the land in litigation is in conflict with section 41 of the Land Use Act, a federal legislation….It follows therefore, that in so far as it purports to confer jurisdiction on different grades of Customary Courts in Ogun State and to confer jurisdiction on the courts with reference to the value or annual rent value of the land, the Ogun State Customary Courts Law is in conflict with section 41 of the Land Use Act, and to that extent, the state legislation is void. Therefore, the Grade II Customary Court, Ifo, Ogun State, had jurisdiction to entertain the respondent’s claim without reference to the value or annual rental value of the land.
3. Review of the Case
The issue that arises for determination in our opinion from the facts and decision above is whether a State House of Assembly can limit the jurisdiction of courts created by it when adjudicating over causes conferred on such courts by section 41 of the Land Use Act.
In resolving this issue, it should be borne in mind that the provisions of section 41 of the Land Use Act does not ipso facto confer jurisdiction on courts established by a state legislation. It is the Constitution that vests a court established by a law of a state with the jurisdiction to entertain causes arising from federal legislation if and only if such a state law has conferred upon such a court powers to hear matters similar to those arising from such federal legislation. This is so stated in section 286(1)(a) of the Constitution of the Federal Republic of Nigeria (as amended) (Constitution) which provides thus:
Where by the Law of a State, jurisdiction is conferred upon any court for the hearing and determination of civil causes and of appeals arising out of such causes, the court shall have like jurisdiction with respect to the hearing and determination of Federal causes and of appeals arising out of such cause.
The up-shot of the above is that before section 41 of the Land Use Act can take effect in a state of the Federation, a State House of Assembly must by a law establish a court and vest it with the jurisdiction conferred by section 41 of the Land Use Act among other powers if it so wishes.
A section of the Constitution which is analogous in effect to section 286(1) (a) of the Constitution is section 7(1) of the Constitution which creates Local Government Areas but provides that there must be a state law before such local governments could come into being. The section provides:
The system of local government by democratically elected local government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall subject to section 8 of this constitution, ensure their existence under a Law which provides for the establishment, structure, composition, finance and functions of such councils.
Also relevant is section 6(4) of the Constitution which provides thus:
Nothing in the foregoing provisions of this section shall be construed as precluding-
- the National Assembly or any House of Assembly from establishing courts, other than those to which this section relates, with subordinate jurisdiction to that of a High court;
- the National Assembly or any House of Assembly, which does not require it, from abolishing any court which it has power to establish or which it has brought into being.
From the sections of the Constitution quoted above, it would be seen that the fate of section 41 of the Land Use Act in any States of the Federation depends on the establishment or non establishment of such courts envisaged by section 41 of the Act by a law of a State House of Assembly. If this is so, then the Supreme Court cannot and should not have ignored the statutory limit on the jurisdiction of the Ogun State Customary Court which is deemed to have been validly imposed by the Ogun State House of Assembly.
This is because a Federal legislation like the Land Use Act cannot burden a court created by a state and at the same time denies it the latitude to regulate its adjudicatory powers in relation to such unsolicited jurisdiction. With profound humility to the justices of the Supreme Court, one may ask whether it is the Federal Government that pays the personnel of the Ogun State Customary Courts? Or whether the Federal government is ready and can constitutionally recruit trained and experienced legal practitioners to man the customary courts of Ogun State?
The reason for the above questions is that it is the State that knows the peculiarities of its people, its environment and the manpower available and all these and more must have influenced the type of court created and the jurisdiction vested upon them.
If the Ogun State Government feels it cannot or does not want the jurisdiction imposed on its customary courts by section 41 of the Land Use Act, it could simply through its House of Assembly invoke its powers under section 6(4) (b) and section 286(1) (a) of the Constitution and abolish its customary courts or divest such courts of jurisdiction over land matters. In other words, all the State House of Assembly needs do is to divest its customary courts of such like or similar jurisdiction as that of the federal legislation which in this case is disputes over title to land arising from a grant of customary right of occupancy. Such courts could then be simply limited to recovery of possession or similar causes without jurisdiction to entertain claims relating to title to land.
Should the Ogun State House of Assembly decide on any of the two options above viz: abolishing the customary courts or divesting them of jurisdiction to entertaining disputes relating to title to land, where would that leave section 41 of the Land Use Act? Courts are enjoined to interpret statutes in a way that would ensure the smooth working of the system which such statute intends to regulate and not in a way that would clog it. This is contained in the maxim Ut res magi valeat quam pereat.[3] The Supreme Court should be careful not to render section 41 of the Land Use Act moribund as the case of Una v Atenda[4] has done in the Federal Capital Territory, Abuja, albeit, validly in our opinion.
Section 16 of the Customary Court Edict of Ogun State does not oust the jurisdiction conferred on the customary court by section 41 of the Land Use Act. What it does is to set some conditions precedent which a plaintiff must satisfy before it can invoke the jurisdiction of the court. Which is that the value of the land or its rental value must not be above a certain limit.
Flowing from the above, one would arrive at the inescapable conclusion that the Supreme Court cannot confer unlimited jurisdiction on the Customary Courts of Ogun State or any State of the Federation for that matter if one takes into consideration the extant and relevant legislation on this point.
The jurisdiction of an inferior court is determined by the law establishing it and not the law that vests it with the jurisdiction to try certain causes or matters. To hold otherwise would be to usurp the legislative powers of the federating states as provided for in section 4(7) (c) of the Constitution and thus put a clog in the workings of the federal structure of the country.
In Okafor v Akanonu[5], the Court held that:
The words ‘area court’ or ‘customary court’ or ‘other court of equivalent jurisdiction in a state’ as used in section 41 of the Land Use Act will show that other court of equivalent jurisdiction must be a court of the same generis with an area court or customary court i.e. a court that its enabling law empowers it to hear customary land matter…A magistrate court is created by a state legislation and not the Constitution and so its basic jurisdiction is guided by its enabling law. (Italics ours).
Also in Achiakapa v Nduka,[6] it was held that an inferior court, such as a Native court or Tribunal is not presumed to have any jurisdiction but that which is expressly provided. Likewise, in Akinrinmisi & Anor v Laoye,[7] It was held that customary courts of the former Western State are not empowered in the face of applicable laws to make an order for the filing of a plan of land in dispute and therefore the court in that case was in error in ordering the plaintiffs/appellants to file a plan.
The Court of Appeal’s decision in Enugwu v Okefi,[8] appears to be on all fours with the theme of this article as it supports our position that the State House of Assembly can regulate the jurisdiction of courts established by it when entertaining federal causes like causes arising from the Land Use Act or other matters whether in their original or appellate jurisdiction. In this case, where the relevant state legislation provided that appeals from the decision of customary courts in the state should first lie to a magistrate court before coming before the High Court, the Court of Appeal held that:[9]
By the combined interpretation of Section 49(1)(a) of the Customary Courts Edict 1984 and Section 3 of the Magistrates Courts Law (Amendment) Edict No.18 of 1974, an appeal from the Customary Court where there is a Magistrate’s Court having jurisdiction over the subject matter of the claim should first go to the magistrate’s court and from thence to the High Court.
Similarly, section 286(1) (a) of the Constitution (which was section 250(3) of the 1979 Nigerian Constitution) was judicially interpreted in this case. The court decided on the meaning of “Federal Cause” and “State Cause” thus:[10]
By virtue of section 250(3) of the Constitution of the Federal Republic of Nigeria 1979, a “Federal Cause” is a civil or criminal cause relating to any matter with respect to which the National Assembly has power to make laws. The expression “State Cause” denotes a reference to any matter with respect to which the State House of Assembly has power to make laws. Thus, the Land Use Act being a legislation of the Federal Government, land, which was dealt with in the Act is therefore a Federal Cause.
On Jurisdiction of state courts over Federal causes, the court posited that:[11]
By virtue of section 250(1) of the Constitution of the Federal Republic of Nigeria, 1979, state courts are vested with jurisdiction over Federal Causes in both civil and criminal causes in respect of matters which a state law conferred such a court with jurisdiction to hear and determine. (Italics ours for emphasis only.)
Likewise, on the status of the Land Use Act in relation to the constitution, the court opined that:
By virtue of section 274 of the Constitution of the Federal Republic of Nigeria, 1979, the Land Use Act is not an integral part of the Constitution. It is an ordinary statute which became extraordinary by virtue of its entrenchment by section 274(5) of the Constitution. Thus, the Land Use Act not being an integral part of the Constitution is an Act of the National Assembly by virtue of section 274 which also gives the court the power to declare invalid the provision of any law including the Land Use Act that is in conflict with the Constitution.[12]
5. Conclusion
Drawing from the above arguments as supported by statutory and judicial authorities, it is our conclusion that section 41 of the Land Use Act does not contain any magical words similar to open sesame[13] and thus cannot confer jurisdiction on the Ifo Grade II Customary Court, Ogun State, irrespective of the value or rental value of the land in dispute as provided for by section 16 of the 1st schedule of the Ogun State Customary Court Edict and other relevant laws stated in the judgment. At best, the Apex court may as an aside (by way of obiter) advise the Law Reform Commission of Ogun State to increase the value or rental value in the relevant law in the face of present economic realities and forward same to the House of Assembly for necessary action. The Supreme Court is thus beseeched to revisit the decision under review any time it has the opportunity to so do.
[1] Olaleye-Ote v Babalola (2012) All FWLR 328 at 345.
[2] Ibid.at p.348.
[3] See Madukolu & Ors v Nkemdilim (1962) 1 All N.L.R 587 at 596, where it was held that where an order of court is ambiguous, in that it admits of either of two meanings, one of which would render it a nullity and vitiate any proceedings taken under it, while the other meaning would render it valid; another court, when considering that Order, will interpret it in the light of the maxim ut res magis valeat, and will adopt the meaning which saves the Order’s validity.
[4] (2000) 5 NWLR (pt.656) 245 at 270-271. This a decision on a dispute over title to land wherein the Court of Appeal, Abuja Division, held that the Land Use Act as a whole does not apply in the Federal Capital Territory, Abuja.
[5] (2000) FWLR (pt.18) 257 at 262-263. The appellant sued the respondents in the Magistrates’ Court Grade II Claiming declaration of title to the customary right of occupancy of a piece of land known as and called “Ikpa Ayo”, general damages for trespass and injunction restraining the respondents from committing further acts of trespass on the land.
[6] (2001) 7 NSCQR 341 at 362. This is a decision that arose from a dispute over title to land.
[7] (1974) 4 U.I.L.R (pt IV) 471. This is an appeal against the decision of a customary court ordering one of the parties to file a plan of the land in dispute.
[8] (2000) 3 NWLR (pt.650) 620. During the hearing of an appeal from the customary court to the High court, counsel for the appellant raised a preliminary objection on the jurisdiction of the High Court, Enugu and competence of the appeal in view of the fact that the respondents by-passed the Magistrate’s court to which their appeal should lie first before the High Court. In its ruling, the High Court overruled the objection and assumed jurisdiction to entertain the appeal. The appellant was dissatisfied with the ruling and appealed to the Court of Appeal.
[9] We submit the part of this decision quoted above does not conflict with the Supreme Court’s decision in Adisa V Oyinwola & Ors (2000) 6 S.C.N.J 290 in the sense that in that case, what was in issue was the original jurisdiction of the High Court of a State to adjudicate over title to land arising from section 41 of the Land Use Act. In the present case however, the relevant portion of the decision deals with the power of a House of Assembly to regulate where appeals should lie in such cases before coming to the High Court.
[10] Ibid at p.634.
[11] Ibid. at p.641.
[12] Ibid. at 643. The said section 274 is now section 315(5) of the Constitution of the Federal Republic of Nigeria, 1999.
[13] A charm to secure admission, originally to the robbers’ cave in the story of Ali Baba and the Forty Thieves in the Arabian Night. See The New International Webster’s Comprehensive Dictionary of the English Language, (U.S.A: Standard International Media Holdings, 2013 edition) 1150.A