LEGAL PRINCIPLE: JURISDICTION – Jurisdiction of Court – Land Use Act – Jurisdiction of State High Courts Over Customary Rights of Occupancy
PRINCIPLE STATEMENT
The jurisdiction which the High Court exercises in proceedings relating to rights of occupancy is not derived from the Act; while section 39 declares such jurisdiction regarding statutory rights of occupancy, its operative purpose is excluding other courts from exercising original jurisdiction in such proceedings; when a question arises as to High Court jurisdiction in proceedings relating to customary rights of occupancy, the proper approach is first to have regard to the amplitude of jurisdiction granted to High Court in section 236 of the 1979 Constitution, and then enquire whether there is anything in that Constitution which has excluded High Court jurisdiction in proceedings relating to customary rights of occupancy.
RATIO DECIDENDI (SOURCE)
"The jurisdiction which the High Court exercises in proceedings relating to rights of occupancy is not derived from the Act. Section 39 of the Act, while declaring such jurisdiction in regard to statutory rights of occupancy, has as its operative purpose the exclusion of other courts from the exercise of original jurisdiction in such proceedings. When a question arises as to the jurisdiction of the High Court in proceedings relating to customary rights of occupancy, the proper approach is first, to have regard to the amplitude of the jurisdiction granted to the High Court in section 236 of the 1979 Constitution, and then enquire whether there is anything in that Constitution which has excluded the jurisdiction of the High Court in proceedings relating to customary rights of occupancy."
EXPLANATION / SCOPE
High Court land jurisdiction analysis requires Constitutional approach: (1) Source of jurisdiction: Constitution (section 236), not Land Use Act—jurisdiction derives from Constitutional grant. (2) Section 39 purpose: Declaring jurisdiction over statutory rights and excluding other courts—not creating jurisdiction. (3) Customary rights analysis: Start with Constitutional jurisdiction (unlimited), then check for Constitutional exclusions. “Amplitude of jurisdiction” means breadth and scope of Constitutional grant—comprehensive unless Constitution excludes. For customary rights of occupancy: High Court has jurisdiction from Constitution, absent Constitutional exclusion of customary rights, jurisdiction continues over customary rights. This serves: maintaining Constitutional jurisdiction supremacy, preventing statutory implications from overriding Constitution, and ensuring comprehensive High Court jurisdiction. The approach rejects: deriving jurisdiction from Land Use Act, implying jurisdiction limits from statutory silence, or treating Act as jurisdiction source. Courts must: begin with Constitutional jurisdiction, identify only Constitutional exclusions, and ignore statutory silence or implications. This Constitutional primacy ensures: State High Courts retain comprehensive jurisdiction, only Constitution can limit Constitutional grants, and land disputes (statutory or customary rights) fall within High Court jurisdiction absent Constitutional exclusion.