Jurisdiction-Supreme
Court Ordinance, section
12
and proviso-Practice and
Procedure-Claim in
trespass-Ouster of jurisdiction
how decided.
The plaintiff sued in trespass,
the first defendant alleged
entry under a lease and the
second defendant that he would
contend that the issue was as to
title to land. The Judge
suo motu
raised the point of ouster of
jurisdiction and plaintiff
opposed the idea. The Judge took
no evidence but concluded that
his jurisdiction was ousted
under the above proviso (text in
judgment
infra);
he assumed that there was a
Native Court with jurisdiction
to hear the case. The plaintiff
appealed.
.Held: There was no admission
that title to land was raised by
this suit for damages for
trespass-which is a suit based
on possession and does not
necessarily involve any issue
as to title to land or any
interest in land-and there was
no evidence of that fact;
further there was no admission
that there was a Native Court
having jurisdiction and there
was no proof; therefore the
Judge erred in concluding that
the jurisdiction of the Supreme
Court was ousted by the proviso
to section 12 of the Supreme
Court Ordinance.
Appeal by plaintiff: No. 3760.
O.
Onyechi
for Appellant.
H. U. Kaine,
with him
D.
O.
lbekwe,
for Respondents .
The following judgment was
delivered:
Verity,
C.].,
Nigeria.
In this case the plaintiff in
the Court below brought an
action claiming damages for
trespass: a simple form of
action which is based upon
possession and does not
necessarily by its form involve
any issue as to title to land or
to any interest in land.
The defendants by their
pleadings alleged, as regards
the first defendant, that he had
entered upon the land claimed
under a lease and the second
defendant that he would contend
that the issue is as to title of
land.
When the matter came before the
learned trial Judge he on his
own motion raised the point that
the jurisdiction of the Supreme
Court in such circumstances was
ousted. This was opposed by
Counsel for the plaintiff and
various statements. were made
then from the Bar in regard to
this case.
The learned Judge took no
evidence but came to the
conclusion that the jurisdiction
of the Supreme Court was ousted
by virtue of the proviso to
section 12 of the Supreme Court
Ordinance (Cap. 211). The
proviso is:-
" Except so far as the Governor
in Council may by order
otherwise direct and except in
suits transferred to the Supreme
Court under the provisions of
section 25 of the Native Courts
Ordinance, the Supreme Court
shall not exercise original
jurisdiction in any suit which
raises any issue as to the title
to land or as to the title to
any interest in land which is
subject to the jurisdiction of a
native court ... "
Now there are two things upon
which the learned Judge should
have been decided before he came
to the conclusion that the
jurisdiction of the Supreme
[pg185] Court was ousted.
First, that the suit raised an
issue as to title to land or to
interest in land and secondly,
that the land was within the
jurisdiction of a Native Court.
Both of these things require
either admission or proof. There
was no admission that title to
land was raised by this suit for
damages for trespass and there
was no evidence of that fact.
There was no admission that
there was a Native Court having
jurisdiction and there is no
proof. Reference to the Laws of
Nigeria may disclose that there
is a Native Court in that" area
and by the Governor's warrant it
may have jurisdiction in land
cases. But the Court in
rejecting jurisdiction cannot
proceed on mere assumption. It
is a very serious matter and the
Court will not reject
jurisdiction unless it is
satisfied by admission or by
proof that jurisdiction has
really by law been taken away
from it.
