3PLR – ONWEMWUNO AKO V. PETER EJEKWEMU
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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ONWEMWUNO AKO
V.
PETER EJEKWEMU
SUPREME COURT OF NIGERIA
19TH NOVEMBER, 1976.
SUIT NO. SC 295/1968.
3PLR/1976/15 (SC)
OTHER CITATIONS
(1976) 11 S.C. (REPRINT) 47
FATAI-WILLIAMS, J.S.C.
REPRESENTATION
Alhaji A. Rasaq – for the Appellant
Mr. T. A. Odufolakun – for the Respondent
MAIN ISSUES
Land Law – Declaration of title – Question of boundaries – Case heard in Native Court – Jurisdiction of Native Court – Section 41(2)(a) Land Tenure Law.
MAIN JUDGEMENT
BELLO, J.S.C. (Delivering the Judgment of the Court):
The case resulting in this appeal has a protracted history. It was started in 1962 in the former Native Court of the Atta Igala where the present Respondent, as plaintiff, sued the present Appellant, as defendant, and claimed a declaration of title to a parcel of land at lyano and Abujaga villages. After having heard the evidence, the trial court found for the plaintiff and made the declaration sought. The defendant appealed to the former Provincial Court which allowed the appeal and nullified the decision of the trial court. In turn the plaintiff appealed to the former High Court of Northern Nigeria and that court allowed his appeal, set aside the judgment of the Provincial Court and restored and affirmed the decision of the trial court. It is against the decision of the High Court that the defendant has appealed to this Court.
At the hearing of the appeal in this Court, we invited counsel for both parties to address the Court as to whether the trial court had jurisdiction to try the suit. The land in dispute is adjacent to the River Niger on its eastern bank and ac-cording to the Appellant’s plan, which has been admitted in evidence in this Court and marked as Exhibit A, the land In dispute is verged pink and covers an area of 7.771 square miles. In the Respondent’s plan, which has also been admitted in evidence in this Court as Exhibit B, the area of the land In dispute is 12.13 square miles and is verged red. It is common ground in both plans that the village of Abujaga is situated within the area of the land in dispute while the village of lyano is situated outside the disputed area; that both villages are on the eastern side of the River Niger.
It is conceded that the Plaintiff/Respondent claimed ownership of the 12.13 square miles of the land in dispute by virtue of his office as the village head of lyano while the defence of the Defendant/Appellant was that 7.771 square miles of that land belonged to him by virtue of his office as the village head of Abujaga. It is also conceded that the dispute was between the communities of lyano village on the one hand and the communities of Abujaga village on the other hand. The substance of the dispute was: where are the boundaries of the lands of the two communities to enable the parties to collect tributes?
Counsel for the Appellant argued that the jurisdiction conferred upon the Atta of Igala Court to try land cases was subject to the provisions of subsection 41(2)(a) of the Land Tenure Law, Cap. 59, 1963 taws of Northern Nigeria and the proviso to the said sub-section ousted its jurisdiction in regard to dispute relating to inter-tribal boundaries. He referred us to the definition of “tribe” under section 2 of the Inter-Tribal Boundaries Settlement Law, Cap. 53, 1963 Laws of Northern Nigeria and contended that, as the dispute was between the inhabitants of lyano and Abujaga villages, the case related to inter-tribal boundaries dispute and the provisions of the proviso to sub-section 41(2)(a) of the Land Tenure Law was applicable to the case.
The learned counsel for the Respondent has not advanced any submission of substance in response.
We agree with the contention of the learned counsel for the Appellant that the jurisdiction of the Court of the Atta of Igala to try land cases was subject to the pro-visions of section 41(2)(a) of the Land Tenure Law. The sub-section provides as follows:-
“(2) A native court of competent jurisdiction shall have jurisdiction in the following proceedings:
(a) proceedings in respect of any land the subject of a statutory right of occupancy granted by a native authority or of a customary right of occupancy where all parties are subject to the jurisdiction of native courts, subject nevertheless to the provisions of paragraph (b) of sub-section (3): Provided that nothing herein contained shall be deemed to confer jurisdiction on any native court in regard to dispute relating to inter-tribal boundaries:”
In parenthesis we may indicate that the provisions of paragraph (b) of subsection (3) are not relevant to the case in hand.
Now section 4 of the Land Tenure Law declared the whole of the lands of Northern Nigeria, whether occupied or unoccupied, to be native lands. Furthermore, “customary right of occupancy’ as defined by section 2 of the Law at the material time means “the title of a native or native community lawfully using or occupying native lands in accordance with native law and custom”.
The parties are natives of lyano and Abujaga and each claims title to the land in dispute under native law and custom. It follows therefore that in accordance with the provisions of section 2 and 4 aforementioned, the proceedings in the case in hand are “proceedings in respect of …………..land the subject…………. of a customary right of occupancy’ within the purview of section 41(2(a) of the Law.
The question now is this: Was the dispute between the parties a dispute “relating to inter-tribal boundaries”? The Land Tenure Law does not define “tribe”. How-ever, the Inter-Tribal Boundaries Settlement Law, Cap 53, 1963 Laws of Northern Nigeria, which confers jurisdiction on any district officer to inquire into and decide any dispute between two or more tribes, defines in section 2 thereof ‘tribe” as “includes a sub-tribe, a clan of a tribe, an administrative unit or other similar community and the inhabitants of a village”.
We have already pointed out that the dispute between the parties was concerned with the issue relating to the boundaries between the lands of the inhabitants of lyano village and the lands of the inhabitants -of Abujaga village. It is therefore an inter- tribal boundaries dispute within the meaning of the Inter-Tribal Boundaries Settlement Law. That being the case, we further hold that the jurisdiction of the trial court to decide the dispute was ousted by the proviso to section 41(2)(a) of the Land Tenure Law.
We accordingly conclude that the Court of Atta of Igala had no jurisdiction to try the case.
For the foregoing reasons the judgment of the High Court restoring and affirming the decision of the trial court cannot stand. We accordingly allow the appeal and set aside the judgment of the High Court. The plaintiff’s claim is struck out for want of jurisdiction by the trial court and this shall be judgment of the court.
Appeal allowed.
