Patrick Erhunmwunse v. John Ehanire

I have had the opportunity of reading in draft the judgment read by my learned brother, Mohammed, JSC. I entirely agree with the judgment.
It is not the practice of customary courts for pleadings to be filed by parties before them. It is not, therefore, always easy to determine at the beginning of a case, the actual issue involved which the court is to adjudicate upon. This is true of the present case.
It is quite clear from the testimonies of the parties before the Oredo Area Customary Court that the dispute between the parties involves land which is the subject of a statutory right of occupancy. Although the claim by the respondent herein, as plaintiff, was inter alia to recover possession of the house which he claimed to have purchased from the appellant, the latter’s defence is a denial of the sale of the property to the respondent. This puts title to the house in issue. Section 39 subsection (1)(a) of the Land Use Act, Cap. 202, which vests exclusive jurisdiction in the High Court with regard to first instance proceedings in respect of land which is the subject of a statutory right of occupancy, provides as follows:-

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“39(1) The High Court shall have exclusive original jurisdiction in respect of the following proceedings –
(a) proceedings in respect of any land the subject of a statutory right of occupancy granted by the Governor or deemed to have been granted by him under this Act; and for the purposes of this paragraph, proceedings includes proceedings for a declaration of title to a statutory right of occupancy.”
It follows that the Oredo Area Customary Court lacked the jurisdiction to hear the case and the Court of Appeal erred in holding otherwise.
I too would allow the appeal and I adopt the order as to costs made by my learned brother, Mohammed, JSC.

I agree entirely with the judgment of my learned brother, Mohammed, JSC just delivered a preview of which I had ere now. For the reasons given by him which reasons I hereby adopt as mine, I too allow this appeal, set aside the judgments of the three courts below and strike out plaintiff’s claim in the Oredo Area Customary Court Benin City for want of jurisdiction of that court to adjudicate on the claim.
I abide by the orders for costs made by my learned brother, Mohammed, JSC.

 I have had the privilege of reading in draft the judgment just delivered by my learned brother, Mohammed, JSC and I entirely agree that there is merit in this appeal and that the same ought to be allowed.
The plaintiff’s claims against the defendant before the trial Oredo Area Customary Court in the now defunct Bendel State of Nigeria, holden at Benin City are as follows:-
“(a) Possession of the storey building known and situate at No.3, Osagie Street, Benin City.
(b) An order that the defendant do quit the storey building and premises known as and situate at No.3, Osagie Street, Benin City forthwith.
(c) An order that the defendant pays up outstanding Electricity Bills and Water Rates in respect of the said premises.

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(d) Mesne profits at the rate of N400.00 per month from 1st March, 1986 till possession is given up.”
The background facts that culminated in this appeal have been fully set out in the leading judgment and no useful purpose will be served by my recounting them all over again. It suffices to state that although the plaintiff’s claims against the defendant are for possession of the residential landed property situate at No.3, Osagie Street, Benin City, payment of outstanding electricity bills and water rates in respect of the premises and mesne profits at the rate of N400.00 per month, the defendant’s case is a total denial of the plaintiff’s assertion of title to the property in issue. Although the plaintiff claimed that the property was transferred to him by the defendant under a duly registered deed of assignment, exhibit B, the defendant in his defence denied selling or transferring the property at any time to the said plaintiff. The defendant further denied giving instruction to anyone to prepare exhibit, B on his behalf. The length and breath of his defence is that the building which is the subject-matter of this action is his bona fide property and that he never at any time transferred his title thereto to the plaintiff or to any other person else. He also denied that he ever agreed to pay the plaintiff N400.00 per month as rent in respect of his property.
At the trial, the defendant raised the issue of want of jurisdiction on the part of the trial Customary Court to entertain and/or determine the suit. Both the trial court and the Customary Court of Appeal, Bendel State, together with the Court of Appeal, Benin Division, had considered the issue severally and overruled the defendant on the point. Said the Court of Appeal.
“I agree with the learned counsel for the respondent that it is trite law that in determining whether a court has jurisdiction or not to entertain an action it is the plaintiff’s claim that is relevant.”

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The court below went on to hold thus:
“In the case in hand, by section 2 of the Customary Courts (Amendment) Edict No.5 of 1985, the jurisdiction and powers formerly conferred on Rent Tribunals in Bendel State, applicable to Edo State, were transferred to the Area Customary Courts to be exercisable by those courts.”
It emphasised that ex facie, the action before the trial Oredo Area Customary Court is not for ownership or title to the property in issue but simply concerned a landlord and tenant dispute. It concluded:-
“I would like to say it loud again that the respondent sought reliefs enacted in the Rent Control and Recovery of Premises Edict of 1977 as amended by Edict No.6 of 1985 ………..
It should be mentioned again that pursuant to Rent Control and Recovery of Residential Premises (Amendment) Edict, 1985 of Bendel State, applicable to Edo State, rent tribunal matters were transferred to the jurisdiction of the Area Customary Court. Thus, the trial court in the instant case rightly adjudicated upon the claim for possession, arrears of rent and mesne profit brought before it by the respondent.”
The defendant being dissatisfied with this decision of the Court of Appeal has further appealed to this court.
The sole issue formulated by both parties for the resolution of this appeal is whether the court below was justified in holding that only the plaintiff’s claim is relevant in the determination of whether or not the trial Area Customary Court had jurisdiction to entertain the suit.

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It is a fundamental principle of law that it is the claim of the plaintiff which determines the jurisdiction of the court to entertain a suit. Put differently, the question of jurisdiction is determined by the nature of the plaintiff’s case. See A.-G., Anambra State and Others v. A.-G., Federation and Others (1993) 6 NWLR (Pt. 302) 692 at 742 and Adeyemi and Others v. Opeyori (1976) 9-10 SC 31, NSCC 455 at 463. This is the position in strict procedural law, particularly in respect of matters instituted before our superior courts of record. Customary Courts, however, are not superior courts of record. No pleadings are filed in them either. Accordingly, the technical rules and/or procedure which govern the trial of actions in the superior courts of record are not stringently applied in those Courts. The only material before Customary Courts is the plaintiff’s claim which is the initiating process in all civil suits filed in those courts. Trials are conducted in the Customary Courts in a summary manner and the only opportunity a defendant has to project his case is by oral evidence when he and his witnesses testify before the court in his own defence.
In this connection, it cannot be over-emphasised that the form of an action in customary courts must not be stressed where the issue involved is clear. The law is long settled that it is the substance of such actions that is the determinant factor. See Kwamin Akyin v. Essie Ehymah (1936) 3 WACA 65; Solomon Jonah v. Kojo Owu (1937) 3 WACA 170 at 171; and Chukwunta v. Chukwu and Others (1952) 14 WACA 341. Proceedings in Customary Courts must be carefully scrutinised to ascertain what the real subject-matter of a case and the real issues raised therein are. Consequently, it is permissible, not only to look at the plaintiff’s claim before the Customary Court, but also to study the findings and even the evidence given or tendered before such Customary Courts with a view to identifying the real issues between the parties in the suit. See. Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238 at 251; Chief Awara Osu v. lbor Igiri (1988) 1 NWLR (Pt. 69) 221; Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188; Richard Ezeanya and Others v. Gabriel Okeke and Others (1995) 4 NWLR (Pt. 388) 142.

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It ought to be stressed also that in dealing with proceedings from Customary Courts, an appellate court must not be unduly strict or rigid with regard to matters of form or procedure as the whole object of trials before such courts is that the real dispute between the parties should be adjudicated upon. See Dinsey v. Ossei (1939) 5 WACA 177. With the above well established principles of law in view, I will now proceed to consider the sole issue for determination in this appeal.
As already pointed out, although the plaintiff’s claims against the defendant sound in recovery of premises, payment of outstanding electricity bills and water rates and mesne profits, it is beyond dispute, after a careful study of the proceedings before the trial Oredo Area Customary Court, Benin City, that the insurmountable issue between the parties concerns ownership or title to the property, the subject matter of the suit. Whilst the plaintiff claims that the defendant lawfully transferred the property to him under exhibit B, the defendant denies any such transfer or alienation of the property to the plaintiff.
The trial Oredo Area Customary Court, as I have already pointed out, is not a superior court of record where pleadings are ordered and filed and the technicalities of the law strictly observed. That court is only a court of summary jurisdiction. It is, therefore, clear to me that the trial Customary Court was duty bound to consider not only the claim before it but, also the defence of the defendant in order to determine what the real issue between the parties is and whether or not it had jurisdiction to entertain the suit.

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In other words, the trial court ought to consider the totality of the case of both the plaintiff and the defendant in order to form a balanced and objective opinion as to whether or not it had the requisite jurisdiction to entertain the suit. I am, therefore, unable to endorse the finding of the court below to the effect that only the plaintiff’s claim without more needs be considered in the determination of the question of the trial court’s jurisdiction to entertain the suit raised by the defendant in the case.
It is plain to me that the issue of ownership and/or title to the building, the subject matter of the suit, was copiously raised in the proceedings that it was incumbent on the trial court to determine that issue before it could properly deal with the plaintiff’s claims against the defendant. This is because, unless the trial court satisfies itself that the plaintiff had established his title to the premises in dispute, it would almost certainly find itself unable to grant the reliefs claimed against the defendant.
Now, section 39 of the Land Use Act, 1978 confers the High Court with exclusive original jurisdiction to determine the issue of title to land in an urban area and therefore the subject of a statutory right of occupancy. That section of the law provides thus:-
“39.(1) The High Court shall have exclusive original jurisdiction in respect of the following proceedings:-
(a) proceedings in respect of any land the subject of a statutory right of occupancy granted by the Governor or deemed to be granted by him under this Act; and for the purposes of this paragraph, proceedings includes proceedings for a declaration of title to a statutory right of occupancy;
(b) proceedings to determine any question as to the persons entitled to compensation payable for improvements on land under this Act.”
It is common ground in the present case that the building situate at No.3, Osagie Street, Benin City which is the subject of the present action is within the Benin City urban area under the Urban Area Designation Edict of Bendel State, 1990. There is also uncontroverted evidence that the defendant had a certificate of statutory right of occupancy issued by the State Governor in respect thereof in assertion of his root of title to the premises in dispute.

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It is evident that the primary issue that calls for determination in this case is who as between the plaintiff and the defendant has valid and subsisting title to the land and premises in dispute.
Under the Land Use Act, 1978, the only competent court, to resolve this question is the High Court of Justice, Edo State. In my view, the Oredo Area Customary court is clearly without jurisdiction to entertain the present action and the decision of the Court of Appeal to the contrary is, with profound respect, erroneous and unsustainable. The sole issue for determination in this appeal is accordingly resolved in favour of the defendant/appellant.
It is for the above and the more detailed reasons contained in the judgment of my learned brother, Mohammed, JSC that I, too, allow this appeal. The judgments of the Oredo Area Customary Court delivered on the 26th March, 1990, the Bendel State Customary Court of Appeal delivered on the 23rd June, 1993 and the Court of Appeal, Benin City Division delivered on the 16th July, 1998 upholding the jurisdiction of the Oredo Area Customary Court to determine the plaintiff’s claims in the present action are hereby set aside. I abide by the order as to costs made in the leading Judgment.

 I had a preview of the lead judgment just delivered by my learned brother, Mohammed, JSC and I agree with him that the appeal is meritorious and should be allowed.
The plaintiff/respondent’s claim before the Oredo Area Customary Court was for possession, mesne profits and costs of electricity and water rate in respect of a storey building at No.3, Osagie Street, Benin City, hereinafter referred to as the property in dispute.

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It is not disputed that ex facie the aforesaid Area Customary Court had the requisite jurisdiction to entertain such a simple claim
particularly if there is no controversy over title to the property in dispute.
However, from the evidence adduced by the parties at the trial court, it was manifest that the ownership of the land in dispute was being vigorously contested. The plaintiff/respondent’s case appears to be that the defendant/appellant was originally the owner of the property in dispute, which he was occupying. Subsequently he the defendant/appellant sold the property to the plaintiff/respondent to whom he attorned a tenant. The sale was by a Deed of Transfer dated 17th February, 1986. The defendant/appellant has vigorously denied that assertion that he at anytime divested himself of the property in dispute. Thus, a serious and fundamental issue of title to the property in dispute had arisen. The determination of the plaintiff/respondent’s claim is dependant on the resolution of this issue of title. Unarguably, the Area Customary Court lacked the jurisdiction to adjudicate over title to land situate in an urban area the subject of a statutory right of occupancy in respect of which the High Court enjoys exclusive jurisdiction by virtue of section 39(1)(a) of the Land Use Act.
I, therefore, agree with my learned brother, Mohammed, J.S.C that the courts below were in grave error in failing to appreciate that the trial court lacked the jurisdiction to entertain the claim before it. Consequently, I allow the appeal and endorse all the consequential orders made in the lead judgment.

Appeal allowed.

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