Verity, C.J., 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 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.
In these circumstances I think that the learned Judge erred in coming to the conclusion that it had been demonstrated to him and established that the Court had no jurisdiction or that jurisdiction was ousted and that he should have proceeded to take evidence satisfying himself on the necessary points to enable him to come rightly to the conclusion that the jurisdiction was ousted. I would therefore allow the appeal and remit the case to the Court below for determination.
Foster-Sutton, P. I agree. Coussey, J.A. I agree.
Order: The order of the learned trial Judge is set aside and the case is remitted back to his Court for determination. The appeal is allowed and we fix the costs at £31 5s. 6d.
Appeal allowed: case remitted for determination.