This is an appeal from a judgment of the Supreme Court of the Aba Judicial Division of Nigeria in favour of the plaintiff in an action in which he sought to , recover certain moneys alleged to have been received by the defendant by way of rent of certain store buildings. At the trial the defendant set up not only that , one of these buildings was his property but that a portion of the land on which they stand is his property in a limited sense, the same having been conferred upon him on obtaining his chieftaincy according, it is alleged, to the custom of his people.
On behalf of the defendant-appellant it was submitted that the defence raised an issue as to the title to an interest in land and that the jurisdiction of the Supreme Court was therefore ousted by virtue of the proviso to section 12 of the Supreme Court Ordinance, 1945, which provides, with immaterial exceptions, that 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.”
This proviso is a re-enactment, with verbal modification, of a similar provision in the Protectorates Courts Ordinance, 1933, which was in effect at the time of the commencement of the suit although it had been repealed by the Supreme Court Ordinance, 1945, before the suit was tried.
On behalf of the respondent it was argued that the proviso is not applicable to the present case in that an action in respect of moneys received by way of rent is not a suit in which the issue to title to any interest in land is raised.
It is true that the form of action instituted by the respondent does not in itself raise any issue as to the title to land or interest in land, but this issue has been raised by the appellant and it is an issue which must necessarily be determined or disposed of before the liabilities of the appellant or the right of the respondent can be ascertained.
The learned trial Judge held that the appellant was estopped from raising any issue as to his interest in the land by his conduct in signing a lease of the premises as a member of the family without specifying his separate interest therein, but in so doing the learned Judge purported in effect to dispose of the very issue which if the proviso to section 12 be applicable he had no jurisdiction to entertain.
We are of the opinion that the case is one which falls within the proviso to section 12 of the Ordinance and that the Supreme Court could exercise no ,original jurisdiction in the suit which raised an issue as to the title to an interest in land provided such suit was subject to the jurisdiction of a native court.
The appropriate Native Court in which this action might have been brought would appear to be the Kalabari Clan Court of the Degema Division and reference to the terms of the warrant conferring jurisdiction upon that Court under the provisions of the Native Courts Ordinance, 1933, assures us that the suit is one in which that Court has jurisdiction in causes concerning land. The fact that it is also an action in which there is alleged to be a debt or demand exceeding the sum of £50 would appear to be immaterial in view of the judgment of the Privy Council in Hagan and Ors. v. Adum and Ors. (1) where it was held that where one head in a section affords a self-contained subject of jurisdiction which is independent of the other heads it is illegitimate to import the qualifications or conditions expressed in one of the heads into any of the other heads.
It was further submitted on behalf of the respondent, however, that the issue raised by the appellant involving title to an interest in land relates to part of the claim only and that the Supreme Court had jurisdiction as to the rest of the claim.
It appears to us, however, that the respondents having claimed in their suit a certain sum being moneys received by the defendant on behalf of the family and the appellant having raised an issue as to the title to an interest in land by way of defence, the Supreme Court is debarred by statute from exercising jurisdiction in the suit and it would be improper for this Court to attempt to reconstitute the suit so as to give the Supreme Court power to exercise its jurisdiction in relation to part of the subject-matter thereof.
It appears to us, therefore, that as the suit is one which is subject to the jurisdiction of a native court and in which the Supreme Court is not to exercise jurisdiction, the learned Judge was wrong in proceeding to its hearing and determination. The appeal is allowed and the judgment set aside, with costs here and in the Court below.
Appeal allowed.