Nigerian Legal System

• Pages: 501-678

Adjudicatory system Paras. 1201-1203

NIGERIAN LEGAL SYSTEM

(1) ADJUDICATORY SYSTEM

1201. Role of trial Judge in adjudicatory system.

“It is trite law that under the Nigerian adjudicatory system, the role of a Judge is that

of a referee and an unbiased arbiter. It is not the function of the trial Judge by his own

exercise and ingenuity to circumvent the rules of procedure, to supply evidence or

carry out an answer which by law, only evidence tested under cross examination

could supply. See: Ikenye v. Ofune (1995) 2 N.W.L.R. (Pt. 5) 1 at 13.” - Per

Musdapher, J.C.A. in Atanze v. Attah Suit No. CA/A/110/98; (1999) 3 N.W.L.R.

(Pt. 596) 647 at 657.

(2) AREA/CUSTOMARY COURT

1202. Appeal from Native Tribunal to the Court of the Provincial Commis-

sioner.

“It is clear to me that this question is a matter relating to the ownership of land,

though in form, the suit is not one to establish ownership or claim to title. I am of

opinion therefore that an appeal from the decision of the Native Tribunal did lie to the

Provincial Commissioner’s Court, and that the Provincial Commissioner was wrong

in holding that the case was a money count action and in dismissing the appeal to him

on that ground. I am of opinion that this appeal should be allowed and the case

remitted to the Provincial Commissioner’s Court to be heard and decided upon its

merits, and that the appellant should be awarded costs in this Court and the costs up

to date in the Provincial Commissioner’s Court.” – Per Kingdon, C.J. in Archie

Kwow v. Eku II (1934) 2 W.A.C.A. 180.

1203. Jurisdiction of Magistrate or District Courts.

“After hearing the evidence the learned Magistrate, in a considered judgment, made

certain findings of fact which will be referred to later, and awarded the plaintiff

damages for the trespass and conversion sued for. The plaintiff-appellant complains

that there was misdirection on the part of the learned Judge in three matters in setting

this judgment aside on the ground that the Magistrate had no jurisdiction as a bona

fide dispute as to the area of land existed. Firstly, in holding that the Magistrate did

not direct his mind to the point that his jurisdiction would be ousted on a question of

title to land being raised; secondly, in finding that there was ample evidence upon

which the Magistrate should have held that a bona fide question of title was raised in

the suit, and further that there was no evidence before the Magistrate to determine

the exact location of the land. So far as it is relevant to the present question the

proviso to Section 19 of the Magistrate’s Courts Ordinance (Cap. 122) is identical

with the proviso to Section 12 of the Supreme Court Ordinance (Cap. 211).

The principles upon which the jurisdiction of the Supreme Court is exercised

or ousted in suits which raise an issue as to title to land were recently considered by

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Paras. 1203,1204 Vol. 16: NIGERIAN LEGAL SYSTEM 502

this Court in appeal No. 145/1953 , Ajaka Izenkwe and Others v. Onyemuche

Nnadozie. In the case of a claim such as that in the present case, the test is whether

a bona fide issue of title was raised or could genuinely be raised at the trial. We are

of the opinion that the learned Judge in appeal erred in disturbing the judgment of the

Magistrate. Firstly, as to the identity of the land.

The learned Magistrate held on the evidence that the farmland, subject of the

trespass was the identical area which the first and second defendants had unsuc-

cessfully litigated with the plaintiff as is evidenced by the judgments of the Acting

District Officer (exhibit A) confirmed on appeal by the resident and confirmed on

further appeal by the Court of the Governor on the 8th October, 1947 (exhibit B). The

defendants-respondent’s counsel has pointed out that there was no plan of the local-

ity and that the proceedings in the Native Court of first instance were not exhibited

by the plaintiff. These might be matters for consideration if the evidence for the

defendants had not made it clear that they were simply attempting to confuse the

identity of the land in an endeavour to avoid the effect of the judgment against them.

The Magistrate, however, arrived at a finding of fact that it was the identical

land and that finding should not have been disregarded by the learned Judge. Sec-

ondly, the effect of the judgment against the defendants-respondents is that they are

estopped from re-litigitating the title to the farmland and that the plaintiff-appellant

was in possession at the time of trespass. The defendants/respondents could not

therefore, in this action, raise a genuine issue of title and they did not do so as is

shown by their evidence and particulars of defence.

Lastly, when the Magistrate held that there was nothing to justify a transfer

of the suit, he was overruling an objection by the defendants’ counsel to the jurisdic-

tion of the Court, namely that an issue of title was involved. He must therefore have

addressed his mind to this point. Throughout the hearing it is clear that the issue

before the Court was as to trespass and as to this the Magistrate held that the defen-

dants-respondents had not established a defence. The appeal is allowed, the judg-

ment of the Court below is set aside and the judgment of the Magistrate is restored

with costs for the plaintiffs-appellants in this Court and in the Court below, fixed at 20

guineas in Court below and £33. 7s. 0d. in this Court.” – Per Coussey, J.A. in Laode

Matomi v. Ibiyemi (1953) 14 W.A.C.A. 390.

1204. Jurisdiction of the Divisional Court in claim for rent.

“The claim in this case was for rent and/or tribute in respect to cocoa farms. It was

clearly a suit relating to the occupation of land within the jurisdiction of Adansi Native

Court “B” and that Court had jurisdiction to try it (See Section 6 and 7 of the 1st

Schedule to the Native Courts (Confederacy) Order, Laws III pages 395/6). That

being so the Divisional Court should have acted as directed under Section 35 of the

Native Courts (Ashanti) Ordinance (Cap. 80) namely stopped the further progress of

the cause before it and referred the parties to the competent Native Court. The

appeal is accordingly allowed and all further proceedings before the Supreme Court

or this Court are stayed, the judgment of the Lower Court being set aside including

503 Area/customary Court Paras. 1204,1205

the order as to costs. The parties are referred to the competent Native Court, namely

Adansi Court B. Since the appellant raised the question of jurisdiction at the com-

mencement of the hearing in the Court below, he is awarded costs in this Court

assessed at £43. 9s. 5d. and costs in the Court below to be taxed.” – Per Kingdom,

C.J. in Agyema v. Panin (1940) 6 W.A.C.A. 11.

1205. Jurisdiction of the Native Courts to transfer suit.

“The applicants applied to the District Officer for its transfer to this Court, and he

made an order under Section 22(1)(c)of the Native Courts (Colony) Ordinance,

1937, transferring it to the Magistrate’s Court. Under that Ordinance he had no power

to transfer it to this Court, and so I am being asked to transfer it from the Magistrate’s

Court to this Court. One of the arguments in support of the application is that the

Magistrate’s Court has no power to hear such a suit. The argument may well be

correct. In the Protectorate, Magistrates’ Courts would have such a power because,

although Section 19 of the Magistrates Courts Ordinance, 1933 (which sets out their

jurisdiction) has a proviso that they shall not exercise original jurisdiction in suits

raising an issue as to title to land, an exception to the proviso gives them jurisdiction in

cases transferred under the Native Courts Ordinance, 1933, (i.e. the Ordinance about

Native Courts in the Protectorate). This was decided in the case of Isalomi v. Omumu

(XVII N.L.R. 48) in the High Court in 1943. There is an earlier decision of 1940

which decided the opposite, but all Courts follow the 1943 decision. The decision

does not apply to this case, however, because it was concerned with the Native

Courts Ordinance 1933.

I am concerned with the Native Courts (Colony) Ordinance, 1937. No mention

is made of this latter Ordinance in the exception to the proviso to Section 19 of the

Magistrates Courts Ordinance, 1943 (which is in effect a re-enactment of the Sec-

tion 32 of the Protectorate Courts Ordinance, 1933). It is easy to see why. The only

jurisdiction possessed by Native Courts in the Colony is that conferred on them by

their 1937 Ordinance. Their jurisdiction is given by Section 8 and the schedule to the

Ordinance. And it is expressly stated that they shall have no jurisdiction in suits in

which the title to land or any interest in the title to land is in question. That being so,

when such suit is brought before them the only thing the Court can do is to strike it out

as being outside its jurisdiction. The consequence of this is that such a suit cannot be

transferred.

If a suit is outside the jurisdiction of a Court it cannot be a suit pending before

the Court so as to enable an order of transfer to be made about it. No order can be

made about it, whether by the Native Court or by the District Officer on review,

except an order striking it out as being outside the Court’s jurisdiction. This being so,

in my opinion, the District Officer’s purported order of transfer was null and void and

of no effect and did not effect any transfer of the suit. Consequently also I cannot

make any order of transfer because in my opinion there is no suit properly before the

Magistrate’s Court which I can transfer.