Attorney General of Lagos State & Ors V. Zanen Verstoep & Company Nigeria Limited & Ors (2016)
LawGlobal-Hub Lead Judgment Report
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
This appeal is against the judgment of the Federal High Court, Lagos Division delivered by ABUTU J. on the 2nd day of November 2007.
The Appellants and the 2nd Respondent herein were Respondents in the suit filed in the lower Court while the 1st Respondent was the Applicant.
The said 1st Respondent had as Applicant commenced a suit in the Federal High Court, Lagos Division (lower Court) by way of an application for the enforcement of its Fundamental Human Right against the aforesaid Respondents. In the said application dated 9-11-2006 the following reliefs were sought:-
(i) A declaration that the forcible breaking-in and carting away of the Applicants properties from its premises situate at 1A Ozuma Mbadiwe Street, Victoria Island, Lagos by the Respondents on Sunday, August 26, 2006 and subsequent days thereafter is illegal and unconstitutional as it violates the Applicants right to property guaranteed by Section 44 of the 1999 Constitution of the Federal Republic of Nigeria.
(ii) A declaration that the continued forcible occupation of the Applicants
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said premises situate at 1A Ozuma Mbadiwe Street, Victoria Island, Lagos by the Respondents and their agents or privies is illegal and unconstitutional as it violates the Applicants right to property guaranteed by Section 44 of the 1999 Constitution of the Federal Republic of Nigeria.
(iii) An Order directing the Respondents, their agents and/or privies to vacate the Applicants premises situate at No. 1A Ozuma Mbadiwe Street, Victoria Island, Lagos.
(iv) An Order directing the Respondents to return all the Applicants properties (as itemized in the Applicants statement hereto) which were forcibly removed from the Applicants said premises situate at No. 1A Ozumba Mbadiwe Street, Victoria Island Lagos, to the said premises OR IN THE ALTERNATIVE.
Damages of the total sum of $5, 707, 292.90 to its equivalent in Naira, being the value of the Applicants properties forcibly removed from the Applicants premises situate at 1A Ozumba Mbadiwe Street, Victoria Island, Lagos.
(v) General damages of the sum of N200 Million Naira (Two Hundred Million Naira) for the illegal and unlawful violation of the
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Applicants right to property guaranteed by Section 44 of the 1999 Constitution of the Federal Republic of Nigeria.
(vi) Exemplary damages of N300 Million Naira (Three Hundred Million Naira) for the illegal, unlawful, gross and blatant violation of the Applicants right to property guaranteed by Section 44 of the 1999 Constitution of the Federal Republic of Nigeria.
GROUNDS FOR SEEKING RELIEF
1. By virtue of Section 44 (1) of the 1999 Constitution;
No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purpose prescribed by a law..
2. The break-in of the Applicants premises at 1A Ozumba Mbadiwe Street, Victoria Island Lagos, and forceful removal and carting away of the Applicants properties which included all its equipment, tools, spares and accessories by the Respondents on August 26, 2006 and subsequent days is illegal and unconstitutional.
3. The
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Respondents have no power under 1999 Constitution or any law to break-in and cart away the Applicants properties.
4. The Respondents their privies or agents have no powers under 1999 Constitution or any law to forcibly evict the Applicant and occupy the Applicants premises and deny the Applicant any access to its premises.
The said application was supported by a statement of facts, and a 31 paragraph affidavit with numerous documents attached as Exhibits ZVI to ZV 28. There is also a further affidavit of 5 paragraph to which is attached a copy of Police Report marked as Exhibit ZV 29.
The Appellants as the 1st, 3rd, 5th, 6th and 7th Respondents in the lower Court reacted by filing a counter affidavit as well as a notice of preliminary objection. The 2nd Respondent as 8th Respondent in the lower Court also filed a counter affidavit.
The 2nd and 4th Respondents (Commissioner of Police Lagos State) and D.P.O Bar Beach Police Station respectively, did not file any counter affidavit.
Briefly put, the facts as can be gleaned from the Records is that the Applicant (now 1st Respondent herein), is a civil dredging and Marine
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Engineering Company in occupation of a land situate at No 1A Ozumba Mbadiwe Street, Victoria Island, Lagos, since 1983 and which occupation was through allocation by the Lagos State Government. The said occupation was first disturbed in 1989 when the Lagos State Government forcibly evicted it but was restored back into possession by a Court order.
The same fate befell the 1st Respondent in 2004 when it was also evicted through the instrumentality of another private company but it also regained possession shortly thereafter.
But sometime in August 2006, the said premises was invaded in the early hours of a Sunday morning by a large contingent of heavily armed policemen who carted away all the 1st Respondents specialized dredging equipment, machinery and spares worth hundreds of millions of Naira and none of the said equipment was ever returned. It was also forcibly locked out of the premises by these policemen and had been denied access to same and all petitions to the Lagos State Government and Police on the issue received no positive response. The 4th Respondent is permanently on guard over the premises.
This necessitated the 1st
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Respondent to institute the action in the lower Court for the enforcement of her fundamental right to property.
At the hearing of the suit, the Appellants preliminary objection challenging the jurisdiction of the Court was taken together with the 1st Respondents originating motion and the parties, (except the 2nd and 4th Respondents in the lower Court) duly adopted and relied on their respective written addresses.
In a Ruling delivered by the Learned Trial Judge on 2-11-2007, he dismissed the preliminary objection and granted all the reliefs sought by the 1st Respondent including an order that all the Respondents before him should ensure the return of the 1st Respondents properties forcibly removed, within 30 days of the Ruling, otherwise, they would be liable to pay for the value of the items to the tune of $5, 707, 297, 90 (US DOLLARS).
Being dissatisfied with the said Ruling, the Appellants herein, filed a Notice of Appeal on 9-11-2007. With the leave of this Court, they subsequently filed an amended Notice of Appeal with three grounds of appeal on 9-4-2015 but deemed properly filed on 26-5-15.
In compliance with
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the relevant Rules of this Court, briefs of argument were thereafter filed and served and same was adopted by the parties at the hearing of this appeal on 25-4-2016.
In the Appellants brief of argument settled by LAWAL PEDRO SAN Solicitor General of Lagos State and filed on 21-5-2015 but deemed properly filed and served on 26-5-2015, three issues were formulated for determination. To wit:-
(1) Whether the complaints and reliefs of the Applicant/1st Respondent are cognizable under Section 44 of the Constitution of the Federal Republic of Nigeria 1999 to have conferred jurisdiction in the Federal High Court.
(2) Whether the Federal Court ought to have declined jurisdiction in this matter having regard to its findings that the Appellants who carried out the eviction of the Applicant from the land are not Federal Government agencies, but Lagos State Government agencies.
(3) Whether the Trial Court was right to have granted the Applicants relief in Paragraph (d) for the return of the properties removed from the premises at No 1A Ozumba Mbadiwe Street, Victoria Island, or in the alternative, damages of $5, 707, 297, 90 (US DOLLARS) being
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the value of the properties.
The 1st Respondents brief of argument is dated and filed on 26-10-2015 and settled by ROTIMI ALADESANMI Esq.
The following two issues were formulated therein for determination:-
(1) Whether the lower Court had the jurisdiction to entertain the suit as the enforcement of a fundamental right to property.
(2) Whether the appeal on the order for the return of the 1st Respondent properties within 30 days does not amount to a moot point in view of the alternative relief for the monetary value of the removed items which was granted.
The 2nd Respondent also filed a brief of argument on the 26-6-2015. It was settled by G.O ASUMAH Esq. Two issues were formulated therein as follows:-
(1) Whether by the complaints and reliefs of the 1st Respondent sought, the trial Court was right to have ordered its reinstatement when it did not prove and title to land?
(2) Whether the trial Court was right in awarding Exemplary Damages of N10, 000, 00.00 (Ten Million Naira) against the 2nd Respondent being one of the Respondents in the suit.
The Appellants reply brief of argument is dated and filed on
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14-1-2016.
In the 2nd Respondents brief of argument, the conclusion is that the Appeal has merit and should be allowed, with an order setting aside the decision of the lower Court delivered on 2-11-2007. The two issues argued in the said briefs also attacked the decision of the lower Court while supporting the stance of the Appellants.
This indeed is contrary to the established principle of law that the duty of a Respondent in an appeal is to support the judgment appealed against and not to fight against or criticize the judgment. He however has the unlimited option to appeal against the said judgment if dissatisfied with same. See NIGERIA BANK FOR COMMERCE & INDUSTRY VS INTERGRATED GAS (NIG) LTD (2005) ALL FWLR (PT 250) Page 1; EMEKA VS OKADIGBO (2012) 18 NLWR (PT 1331) 55 at 97; FEDERAL MORTGAGE FINANCE LTD VS EKPO (2005) ALL FWLR (PT 248) 1667.
Having failed to appeal against the said judgment the 2nd Respondents brief of argument which seeks to set aside the judgment of the lower Court is therefore incompetent and it is accordingly discountenanced.
I shall however adopt the three issues raised in the Appellants
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brief of argument in the consideration of this appeal.
ISSUE 1
Dwelling on this issue, Learned Senior Counsel for the Appellants submitted that a perusal of the 1st Respondents application in the lower Court reveals that the main relief sought therein was not for the enforcement of its human right under Section 44 or any other Section in Chapter Four of the 1999 Constitution.
He referred to Paragraph 11 to 14 of the affidavit in support of the said application to further submit that any alleged forceful entry into another persons land and carting away of his property would amount to civil wrong of trespass and conversion and not breach of fundamental right. Therefore, having regard to the facts relied by the 1st Respondent, the alleged breach of its right was not the main complaint before the lower Court and this renders the said application incompetent. He cited in support, the case of UZOUKWU VS EZEONU II (1991) 6 NWLR (PT 200) 708 at 757; GAFAR VS GOVT OF KWARA STATE (2007) 4 NWLR (PT 1024) 375; FRN VS IFEGWU (2003) 5 SC 252.
It was further contended that there is no way the lower Court would have considered the alleged
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breach of the 1st Respondents right to property without a determination of the wrongful entry, that is trespass to the land in dispute which is a matter outside the jurisdiction of the Federal High Court vide ACHEBE VS NWOSU (2003) 7 NWLR (PT. 818) 103 and GARFAR VS GOVT. KWARA STATE Supra.
Learned Senior Counsel also submitted that jurisdiction is the life-blood of any adjudication, without which no proceeding, however well conducted can be valid. He cited the following cases. OHAKIM VS AGBASO (2010) 19 NWLR (PT 1226) 172 SC; MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341; IKE VS NZEKWE (1975) 2 SC 1 and TUKUR VS GOVT OF GONGOLA STATE (1989) 4 NWLR (PT 117) 517.
He then urged this Court to resolve the issue in favour of the Appellant.
ISSUE NO 2
Herein Learned Senior Counsel submitted that the jurisdiction of the Federal High Court is limited to the matters specified under Section 251 (1) of the 1999 Constitution. Therefore, if the Applicants claim is not within the ambit of Section 251 (1), the only conclusion will be that the Federal High Court has no jurisdiction to entertain the matter. He referred to the case of PORT AND CARGO
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HANDLING SERVICES CO. LTD VS MIGFO (NIG) LTD (2008) LPELR (4862) CA. and PPMC VS DELPLU PETROLEUM INC. (2005) 8 NLWR (PT 298) 458.
While noting that the lower Court rightly found that the acts complained of by the 1st Respondent were committed by the Appellants who are agent and agencies of the Lagos State Government and not the Federal Government and which finding was not appealed against, it was submitted that the 1st Respondents suit, in so far as it is against the Appellants cannot be classified as a proceeding against the executive or administrative action or decision of the Federal Government or any of its agencies as to vest jurisdiction on the Federal High Court under Section 251 (1) (r). He added that in the circumstance, the lower Court ought to have declined jurisdiction to hear the application after its finding that the Appellants are not agents or agencies of the Federal Government when the alleged wrongful act was committed.
While conceding that under Section 46 of the Constitution both the Federal and State High Courts have concurrent jurisdiction in matters relating to enforcement of Fundamental Human Rights, it was
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contended that, having regard to Section 46(2) and 251 (r) of the Constitution of the Federal High Court lacks jurisdiction to entertain fundamental right matters against the State Government or any of its agencies as held in GAFAR VS GOVT VS BUSINESS VENTURE LTD (2000) 5 NWLR (PT 658) 668.
This Court was then urged to resolve the issue in favour of the Appellant and allow the appeal.
Responding to the Appellants issues (1) & (2) in their own issue No (1) Learned Counsel for the 1st Respondent analysed the concept of jurisdiction and its threshold nature in adjudication and cited the following authorities in support. AKERE VS GOVT OF OYO STATE (2012) 12 NWLR (PT.) 240; OSAKWE V FEDERAL COLLEGE OF EDUCATION (TECHNICAL) ASABA (2010) 10 NWLR (PT. 1201) Page 1.
In support of the submission that in determining jurisdiction of the Court, it is only the Plaintiffs or Applicants claim that will be referred to and not the defence, he cited the case of EMEKA VS OKADIGBO (2012) 18 NLWR (PT 1331) 55; A.G KWARA STATE VS WARAH (1995) 7 NWLR (PT 405) and ANIGBORO VS SEA TRUCKS (NIG) LTD (1995) 6 NWLR (PT 399) 35.
Learned Counsel
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then referred to the 6 reliefs sought in the 1st Respondents originating motion dated 7-2-2007 brought under the Fundamental Rights Enforcement Procedure Rules and which reliefs were hinged on the enforcement of its fundamental right to property as enshrined in Section 44(1) of the 1999 Constitution.
He added that by the said provision, the nature or type of the moveable property is immaterial and title to the immovable property is not also required as long as the person has an interest in the said property and a violation of any of such rights by the state amounts to an infraction of a persons fundamental right.
Further reference was made to Section 46(1) of the 1999 Constitution to contend that a violation of Section 44 entitles an aggrieved person to approach the High Court of a State or the division of the Federal High Court where the breach occurred for redress. He relied on JACK VS UNIVERSITY OF AGRICULTURE MAKURDI (2004) 4 WRN 91 at 102; EGBUONU VS BORNU RADIO TELEVISION CORPORATION (1997) 12 NWLR (PT 531) 29.
On the issue whether the main relief sought borders on infringement of fundamental Human Right, Learned Counsel
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cited the case of EXECUTIVE GOVERNOR KWARA STATE VS ALHAJI MOHAMMED LAWAL (2005) 5 WRN 142 at 172 to submit that, if the Applicants complaint relates primarily to the violation of any of his rights guaranteed under Chapter 4 of the Constitution, then the enforcement of Fundamental Rights is the main plank of the action and such action can be brought under Section 46 of the Constitution in either the Federal High Court where the violation took place or in the High Court of that State.
He added that in the instant case, all the reliefs sought by the 1st Respondent relates to the infringement of the right to moveable or immovable property as the Declaratory and injunctive reliefs as well as damages sought are hinged on its properties that were violently and forcibly carted away by the Appellants and others. The 1st Respondent did not seek any relief pertaining to title to any land but only sought for restoration into possession of the land from which it was forcibly evicted.
On the Appellants contention that they are not Federal Government agencies but that of Lagos State, Learned Counsel referred to the decision of the lower Court to
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argue that there was nowhere in the Ruling where it was held that the Appellants were solely responsible for the infractions but held generally that the actions of all the Respondents to the suit constitute a violation of the 1st Respondents right under Section 44 of the 1999 Constitution and there is no appeal against the said finding which renders it binding and subsisting. Vide OGUNYADE VS OSHUNKEYE (2007) 15 NWLR (PT 1057) 218; ONIBUDO VS AKIBU (1982) 7 SC 60; ANYADUBA VS NRTC LTD (1992) 5 NWLR (PT 243) 35; UNITY BANK (NIG) PLC VS BOUARI (2008) 7 NWLR (PT 1353) 207 at 271.
On the effect of having a Commissioner of Police as a party in a suit in which declaratory reliefs inter alia, are sought by an Applicant as relating to jurisdiction. Learned Counsel referred to the case of NATIONAL UNION OF ROAD TRANSPORT WORKERS VS ROAD TRANSPORT EMPLOYERS ASSOCIATION OF NIGERIA (2015) 10 WRN Page 1 at 27 which he says puts the picture clearer in a suit seeking declaratory and injunctive reliefs against an agency of the Federal Government under Section 251 (1) (r) of the 1999 Constitution.
On the Appellants reliance on the case of GARFAR VS GOVT KWARA
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STATE (Supra) to contend that the Fundamental Right breached must relate to a matter which falls within the special jurisdiction of the Federal High Court. Learned Counsel cited the case of NURTW VS RTEAN (Supra) to submit that in a suit seeking declaratory and injunctive reliefs against an agency of the Federal Government, the Federal High Court has jurisdiction to entertain it by virtue of Section 251 (1) (r) of the 1999 Constitution. He urged this Court to resolve the issues in favour of the 1st Respondent.
Dwelling on the 1st Respondents issue No 2, Learned Counsel submitted that the issue as to the return to the items removed by the Appellants had become a moot point upon the expiration of the 30 days given by the lower Court, thereby making the live issue left to be the payment of the sum claimed in the alternative.
On the issue No 3 raised in the Appellants brief, it was submitted that the said issue does not arise from any of the three grounds of appeal and grounds 3 relied on by the Appellant is confined to the grant of an abandoned relief for the return of 1st Respondents properties which was not asked for and not the
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grant of the relief for special damages which was asked for in the alternative. He added that any issue raised or arguments advanced on an issue not arising from a ground of appeal are incompetent. Vide OSINAPEBI VS SAIDU (1982) 7 SC 104 at 11; WESTERN STEEL WORKS LTD VS IRON STEEL WORKERS UNION OF NIGERIA (1987) 1 NWLR (PT 49) 284.
On the argument by the Appellants that the alternative claim for the monetary value of the items requires proof by credible oral evidence because it is in the nature of special damages. Learned Counsel submitted that Fundamental Right proceedings is by affidavit evidence and clearly sui generis and the facts deposed therein were not challenged or controverted by the Appellants and as such are deemed admitted as true and correct.
It was further submitted that Exhibits ZV6 to ZV 25 attached to the affidavit in support of the application are delivery invoices giving details of how the 1st Respondent came about, the items, the specific amounts and the quantities and this pieces of evidence was not contradicted, thus giving the Court no choice than to award the amount of damages claimed. Vide INCAR (NIG) LTD VS MRS ADEGBOYE
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(1985) 2 NWLR (PT 8) 453.
This Court was then urged to uphold the decision of the lower Court and dismiss the appeal.
In the Appellants reply brief of argument dated and filed on 14-1-2016, it was submitted in response to 1st Respondents issue No (1) that a careful perusal of the 1st Respondents affidavit and exhibits in support will reveal a history involving title to the property at 1A Ozumba Mbadiwe Street, Victoria Island, Lagos which forms the gravamen of the suit but the 1st Respondent came under the guise of the Fundamental Rights enforcement procedure to obtain relief in title to land. Reference was then made to Paragraphs 8 to 19 of the affidavit in support to strengthen the contention that the subject matter of the suit is land, trespass to land and easement. The following cases were relied on. WAEC VS AKINKUNMI (2008) 9 NWLR (PT 1091) 151; PETERSIDE VS I.M.B (NIG) LTD (1993) 2 NWLR (PT 278) 712; EGBUONU VS BORNU RADIO TELEVISION CORPORATION (Supra) ABDULHAMID VS TALAL AKAR (2006) LPELR (24) SC.
On the 1st Respondents issue No 2, it was submitted that the contention by the 1st Respondent that the lower Court has
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jurisdiction to entertain the suit because the 2nd, 3rd 5th Appellants agents of the Federal Government are not grounded in law and based on the following authorities OMOTESHO VS ABDULLAHI (2008) ALL FWLR (PT 402) 1114; NABORE PROPERTIES LTD VS PEACE-COVER (NIG) LTD (20140 LPELR (22586) CA; NURTW VS RTEAN & ORS (2012) LPELR (7840) SC.
It was thus submitted that the subject matter of the suit borders on land, title to land, and the alleged tortuous acts of trespass to land, chattel and detinue in which the lower Court lacks jurisdiction to entertain because it falls outside Section 251 (1) of the 1999 Constitution.
On the contention by the 1st Respondent that the 2nd, 3rd and 5th Respondents are agents of the Federal Government, it was submitted that an agency relationship exists when an agent acts on behalf of another called the principal within a defined scope of authority and in the instant case the 2nd, 3rd and 5th Respondents, based on the allegations against them, acted as agents of the Lagos State Government and not the Federal Government as to vest the Federal High Court with jurisdiction.
This Court was then urged to allow the
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appeal.
On issue 1, that is whether the complaints and relief sought are cognizable under Section 44 of the 1999 Constitution (as amended) as to confer jurisdiction on the Federal High Court.
Jurisdiction is a threshold issue in adjudication by a Court of law and as such, it is basically considered expedient and germane to resolve same before proceeding to consider any suit before a Court on the merit. This is premised on the reality that determination of a matter by a Court will amount to a nullity and exercise in futility if done without jurisdiction.
In other words, jurisdiction is the basis on which any Court or Tribunal tries a case because it is the authority it has to decide on a matter before it. See GALADIMA VS TAMBAI (200) 6 SCJN 190; A.G LAGOS STATE VS DOSUNMU (1989) 6 SC. (PT. 11) Page 1; YUSUF VS OBASANJO (2004) 5 SCM 193; AJAO VS ALAO (1986) 5 NWLR (PT 45) 802; MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341.
In A.G RIVERS STATE VS A.G AKWA-IBOM STATE (2011) 8 NWLR (PT 1248) 31, the Supreme Court held at page 165 of the Report that:-
When a Courts jurisdiction is challenged by the defence being a threshold issue, the
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Court must first be competent before it can proceed to adjudicate on the case on the merits. The reason being that jurisdiction is a radical and crucial question of competence.
Either the Court has no jurisdiction to hear the case or it has not. It is very expedient for a Court to examine and determine whether it has jurisdiction before proceeding any further in a matter.
Furthermore, jurisdiction of Court is granted by statute or Constitution and not by the Courts. In this regard, no Court shall have jurisdiction to go beyond the provisions of the enabling law. Otherwise, it will be ultra vires. See UGBA VS SUSWAM (No. 2) (2012) 6 S.C (PT 11) 56.
See also ADETAYO VS ADEMOLA (Supra) where Supreme Court held inter alia, that the fundamental nature of jurisdiction is that it does not exist in a vacuum because all the Courts of law derive their power, authority and therefore jurisdiction either under the Constitution or under specific statutes, in that respect no Court can assume jurisdiction in the absence of having been constitutionally and statutorily empowered to do so.
In this regard, the jurisdiction of the Federal High Court is
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derived from Section 251 (1) of the 1999 Constitution (as amended) and Section 7 of the Federal High Court Act.
As per the enforcement of the Fundamental Human Rights the Constitution in Section 46 provides thus:-
46 (1) Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress.
46 (2) subject to the provisions of this Constitution, a High Court shall have jurisdiction to hear and determine any application made to it in pursuance of the provisions of this Section and may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any right to which the person who makes the application may be entitled under this chapter.
The High Court referred to in the Section has been held to mean the Federal High Court or the High Court of a State. It follows that any person whose fundamental rights as detailed in the 1999 Constitution (as amended) has been, is being or likely to be contravened in
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any State in relation to him may apply to either the Federal High Court in that State or the High Court of that State, depending on whether the breach complained about is within the ambit of the subject matter jurisdiction of either of the Courts. Put in simple terms the jurisdiction of the Federal High Court to entertain an application for the enforcement of a persons fundamental right is limited to and circumscribed by Section 251(1) of the Constitution. Conversely, the High Court of a State has no jurisdiction to hear a fundamental rights application on any matter within the exclusive jurisdiction of the Federal High Court.
This position was made very clear by the Supreme Court in the case of ADETONA VS IGELE GENERAL ENTERPRISES LTD (2011) 7 NWLR (PT. 1247) 535 AT 504 per Tabai JSC as follows:-
Although, unlike the 1979 Constitution, Section 318 (1) of the present Constitution does not define High Court, there is no doubt that the terms carries the same meaning as given by Section 277 (1) of the 1979 Constitution to mean Federal High Court or High Court of a state. Therefore, it is my understanding that where a persons
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fundamental right is breached, being breached or about to be breached, that person may apply under Section 46(1) to the judicial division of the Federal High Court in the State or the High Court of the State or that of the Federal Capital Territory in which the breach occurred or is occurring or about to occur. This is irrespective of whether the right involved comes within the legislative competence of the Federation or State or the Federal Capital Territory. See the case of MINISTER OF INTERNAL AFFAIRS V. SHUGABA (1982) 3 NCLR 915. It has to however be noted that the exercise of this jurisdiction by the Federal High Court is where the fundamental right threatened or breached falls within the enumerated matters on which that Court has jurisdiction. Thus, fundamental rights arising from matters outside its jurisdiction cannot be enforced by the Federal High Court. See: TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 3 NSCC 225; (1989) 4 NWLR (PT. 117) 517. Equally, a High Court of a state shall lack jurisdiction to entertain matters of fundamental rights, although brought pursuant to Section 46(2) of the Constitution where the alleged breached of such matters
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arose from a transaction or subject matter which fall within the exclusive jurisdiction of the Federal High Court as provided by Section 251 of the Constitution.
The Appellants complaint is that the main and principal relief sought by the 1st Respondent was not for the enforcement of fundamental right under Section 44 of the Constitution and since the alleged breach was tied to the wrongful entry into a piece of land in dispute, a Federal High Court has no jurisdiction to hear the matter.
The reliefs sought by the 1st Respondent in the lower Court had earlier been set out in this judgment and the learned trial judge in his Ruling on the issue held at page 237 to 239 of the Record as follows:-
On the basis of the totality of the affidavit evidence I find that the 7th Respondent on the 27th of August 2006 entered the premises at No. 1A Ozuba Mbadiwe St., Victoria Island, Lagos to evacuate the Applicants properties on the premises and to dispossess the applicant of the premises. The crucial question in this application is: Was the act of evacuating the properties on the premises and dispossessing the Applicant of the premises in
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the manner and for the purposes prescribed by law? If the answer to this question is in the negative then there is a clear contravention of the constitutional right of the Applicant guaranteed by S.44 of the 1999 Constitution above reproduced.
The totality of the affidavit evidence in this application shows that the Applicant had been occupying the premises at No. 1A Ozumba Mbadiwe St., Victoria Island, Lagos since 1983. Exhibit ZV1 shows that in 1989 the Applicant sued six persons, including the Governor of Lagos State, the Task Force on Environmental Sanitation and the Attorney-General of Lagos State in respect of this land. The task Force dispossessed the Applicant of the premises and the Court restored the Applicant to possession of the premises. The incident on 26th August 2006 is the second incident. The Applicant appears to me to be a person who in respect of the premises has been acting on the basis of a claim of right. The only lawful manner of taking over possession of premises from a person who is in occupation of the premises on the basis of a claim of right is to apply to the Court for possession. In Governor of Lagos State vs. Ojukwu
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(1986) 1 NWLR (pt. 18) 621 at 636 Obaseki, JSC as he then was stated thus:-
If the Govt. of Lagos State wants possession from Chief Emeka Odumegwu Ojukwu it should apply for an Order of possession from the competent Court of law.
It is settled that to dispossess a person in occupation of land on the basis of a claim of right of the land by resorting to extra-judicial self-help methods is contrary to the rule of law and the Constitution. See Agbor vs. Metropolitan Police Commissioner (1969) 1 WLR703 at page 707 where Lord Denning M.R.; stated thus:-
The plain fact here is that Mr. and Mrs. Agbor claim as of right to be entitled to possession of the ground floor of this house. They occupied it on February 4. They entered by stealth. They used a key that had been left behind. But they did it under a claim of right. It may be that they had no much right as they claimed. But even so the proper way to evict her was by application to the Courts of law. No one is entitled to possession of premises by a strong hand or with a multiple of people. That has been forbidden even since the statute of Richard II against forcible entry.
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This applies to the police as much as to anyone else. It applies to government departments also .. They must not take the law into their hands. They must apply to the Court for possession and act only on the authority of the Court seeing however that possession was taken from her wrongfully it should be restored to her. Thus only can the law be vindicated. If she is to be turned out it must be by due processes in the Courts of law and not by action of the executive.. in my judgment this Court should make an interim order that she be restored to her possession of this flat. The final rights can be decided later.
In the present action the affidavit evidence is that the Respondents curiously by extra judicial methods, without an order of the Court as their shield violently dispossessed the Applicant of the premises and carted away his valuable properties. It is well if a Task force is used to execute Court orders and to thereby dispossess citizens of proprietary rights. A task force cannot in a civilized society be used to carry out administrative or executive orders to dispossess citizens of proprietary rights.
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The moveable and immoveable properties of the applicant in this case have been taken possession of compulsorily not in a manner prescribed by law. There is clearly a violation of the fundamental right of the Applicant enshrined in Section 44 of the 1999 Constitution.
I am indeed inclined to agree with the findings and holding of the learned trial judge and my stance is based on the main reliefs sought by the 1st Respondent which is for a declaration that the forcible breaking in and carting away of the 1st Respondents properties from the premises occupied by it violates its right to property guaranteed by Section 44 of the 1999 Constitution and also a declaration that the continued occupation of the said premises by the Appellants is illegal and unconstitutional.
Section 44(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides thus:-
Section 44(1) No moveable property or any interest in an immoveable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for
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purposes prescribed by law that, among other things:-
(a) Requires the prompt payment of compensation therefore; and
(b) gives to any person claiming such compensation right of access for the determination of his interest in the property and the amount of compensation to a Court of law or Tribunal on body haring jurisdiction in that part of Nigeria.
The wordings of the above set out provision is clear and unambiguous and gives every citizen of this country, including legal entities the right to seek redress in Court by way of enforcement of their fundamental right where their property whether moveable or immoveable is taken possession of compulsorily and without due process of law being adhered to.
The 1st Respondent in Paragraphs 8 to 23 of the facts in support of the statement annexed to the application gave a full detail of events leading to the forcible entry and carting away of its property. This includes that in 1983 it was authorized by the Lagos State Governor to move into the land. Though it was evicted sometime in 1989 by the Lagos State Task force on Environmental Sanitation it sued the said body and was subsequently
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restored back into possession of the said premises, at No. 1A Ozumba Mbadiwe Street Victoria Island, Lagos by the order of a High Court which declared the action unlawful and it had remained in peaceful occupation there on till 2006 when it received a notice dated 24/2/06 from the 5th Appellant to vacate the premises within three days. The 1st Respondent further averred in Paragraphs 20, 24, 25 & 26 of the facts in support as follows:-
(20) On the morning of Sunday, August 26, the Respondents broke into the Applicants premises on Ozumba Mbadiwe Street, Victoria Island, Lagos and forcible evacuated the Applicants equipment, machinery and spares as well as properties belonging to other associates of the Applicant. The evacuation continued for days afterwards unabated as the Respondents came with fiery, armed Policemen to prevent any of the Applicants staff and associates from moving near the land.
(24) The Applicant has been totally crippled in its business due to the acts of the Respondents in forcibly removing and carting away all its machines, equipment and spares and is thereby suffering severe loss and
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damages.
(25) The Respondents acted with utmost and brazen impunity in breaking-in and forcibly removing all the Applicants, machines, equipment and spares from the Applicants premises. The Respondents clearly acted in total disregard for due process and the Applicant right, while damning the consequences.
(26) The Respondents have remained totally defiant and recalcitrant despite the Applicants various petitions on the unlawful breaking-in and carting away of its property to.
Exhibit ZV 29 which is the copy of a police Report attached to the 1st Respondents further affidavit dated 1-2-2007 showed that the 2nd 3rd and 5th Appellants confirmed that all properties they evacuated from the said premises were deposited at the Task Force yard, Governors Office, Alausa, Ikeja. This is a clear proof that the 1st Respondents properties were indeed forcibly carted away from the premises at No. 1A Ozumba Mbadiwe Street, Victoria Island, Lagos and taken to the 5th Appellants yard.
The Appellants did not in any way show or justify the said act of forceful taking away of the properties as
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having been done in a manner or for the purposes prescribed by law. In the circumstance, I cannot but agree with the holding of the lower Court that the said act by the Appellants and their agents constitute an infringement of the rights of the 1st Respondent as guaranteed under Section 44 of the 1999 Constitution (as amended) and as such justifies the main relief claimed by the 1st Respondent.
On the contention that the alleged breach was tied to the issue of trespass and title to land which removes it from the jurisdiction of the Federal High Court. The learned trial judge in his Ruling at pages 239 to 240 of the Record addressed the issue as follows:-
The Learned Counsel for the 1st, 3rd, 5th 6th and 7th Respondent and the Learned Counsel for the 8th Respondent have submitted that the subject matter of the action is a land dispute and that this Court therefore has no jurisdiction to entertain the suit. There is not evidence in this case that there is a land dispute between the Applicant and any of the Respondents. The land dispute referred to in the affidavit evidence is a dispute between Jaja Wachukwu family and Fourstar Industries
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Limited. Both Jaja Wachankwu Family and Four State Industries Limited are not among the Respondents in this case. Considering the totality of the affidavit evidence and the reliefs of the present action it is clear beyond doubt that this is a case in which the Applicant has complained of infringement of his fundamental right. It is not a land dispute. This Court has jurisdiction to entertain the suit. The reliefs claimed by the Applicant in this case come within the purview of the fundamental right as enshrined in Sections 44 of the 1999 Constitution. This Court therefore has jurisdiction to entertain the suit. See Nwaogwugwu vs. Duru (supra) at page 280.
The Learned Counsel for the 1st, 3rd, 5th, 6th and 7th Respondent has submitted that the identity of the land is not certain. The affidavit evidence in this case, particularly Exhibits ZV1-ZV29 and the other documents annexed to the affidavit in support of the application show beyond doubt that the premises from which the 7th Respondent did the evacuation is the premises at No. 1A Ozumba Mbadiwe Street, Victoria Island, Lagos. The pleadings in suit No. LD/2161/04 not be before me in this application
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it has not been shown that this case is on the basis of suit No. LD/2161/04 an abuse of Court process. This suit is not an abuse of Court process.
On the whole it is my firm view that the actions of the Respondents complained of constitute a violation of the Applicants right under Section 44 of the 1999 Constitution. Reliefs one, two and three of the action therefore ought to be granted.”
It is my humble view that the learned trial Judge was right in holding that from the reliefs sought by the 1st Respondent and the totality of the affidavit evidence available before the Court for consideration, it is not disclosed that the application for the enforcement of the 1st Respondents right is hinged on a land dispute. An Appellate Court is always reluctant to alter or set aside the findings of fact by the trial Court unless it is apparent that such findings are perverse. See OLABANJI VS OMOKEWU (1992) 7 SCNJ 266; OLARENWAJU VS GOVERNOR OF OYO STATE; (1992) 11-12 SCNJ 92; MOTUNWASE VS SORUNGBE (1988) 5 NWLR (PT 92) 90. Accordingly, this issue is resolved against the Appellants.
On issue 2, which borders on whether the Federal High
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Court ought not to have declined jurisdiction to hear the matter having found that the Appellants who carried out the alleged acts are agencies of the Lagos State government and not that of the Federal Government.
The Supreme Court has in a number of cases in recent times settled the issue, that for the Federal High Court to have jurisdiction under Section 251 of the 1999 Constitution (as amended) the following must co-exist:
(a) The parties or a party must be the Federal Government or its agencies.
(b) The subject matter of litigation.
See the case of OBIUWEBI VS CENTRAL BANK OF NIGERIA (2011) 7 NWLR (PT 1247) 465 and NATIONAL UNION OF ROAD TRANSPORT WORKERS VS ROAD and TRANSPORT EMPLOYERS ASSN OF NIGERIA (2012) LPELR (7840) SC. Also in PDP VS SYLVA (2012) 13 NWLR (PT 1316) 85 at page 138 it was held that:-
When the jurisdiction of the Federal High Court is in issue, the following must co-exist:-
(a) The parties or party must be the Federal Government or its agency.
(b) Subject matter of Litigation.
See also WEMA SECURITIES FINANCE PLC VS NIGERIA AGRICULTURAL INSURANCE CORPORATION (2015) 16 NWLR (PT
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1484) 93.
It is therefore now settled that jurisdiction is a combination of parties and subject matter and not enough only to have an agency of the Federal Government before the Federal High Court will have jurisdiction.
In the instant case, having earlier resolved issue 1 on the premise that the main relief sought by the 1st Respondent is covered by Section 44 of the Constitution which guarantees the right to property. The Federal High Court therefore has jurisdiction to entertain same by virtue of Section 46 (1) of the Constitution, subject however to the satisfaction of the requirement of party in litigation.
For the Appellants, they are agencies of the Lagos State Government and not that of the Federal Government and this wrests jurisdiction from the Federal High Court even with the inclusion of the 2nd Appellant who is a police officer but acted only as agent of the Lagos State Government.
This is certainly correct going by the parties in the Appeal under consideration, but the Appellants seems to have ignored the fact that in the suit appealed against and as presented to the lower Court by the 1st Respondent, the
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Commissioner of Police Lagos State and the Divisional Police Officer, Bar Beach Police Station were the 2nd and 4th Respondents respectively. They were parties to the 1st Respondents application for the enforcement of its fundamental rights presented before the lower Court. By any standard of argument, the commissioner of police cannot be said to have also acted as an agent of the Lagos State Government.
The 1st Respondent in the said application sought some declaratory reliefs against the Respondents at the lower Court and that includes the commissioner of police of the Nigeria Police Force which no doubt is an agency of the Federal Government. See NURTW V. RTEAN & ORS (supra). It must be borne in mind that it is the claim of the plaintiff which in this case is the 1st Respondents Originating motion that a Court will examine to determine whether or not it has jurisdiction to entertain the suit. See LADOJA VS INEC (2007) 4 WRNI.
It is my view therefore, that the inclusion of the Commissioner of Police who represents an agency of the Federal Government, as a party in the action gives the Federal High Court the lee way to assume
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jurisdiction to hear the matter. Thus having satisfied the twin requirement of parties in litigation and subject matter of litigation, the lower Court cannot be faulted for assuming jurisdiction to entertain the 1st Respondents application for the enforcement of its fundamental right.
This issue is therefore resolved against the Appellants.
ISSUE NO 3.
This deals with whether the lower Court was right to have granted the 1st Respondents claim for the return of the properties removed from No. 1A Ozumba Mbadiwe Street, Victoria Island, Lagos, or in the alternative, pay damages of $5, 707, 297, 90 (US Dollars) being the invoice value of the properties.
The Appellants grouse, is that the said claim or relief for return of property had earlier been abandoned by the 1st Respondent and the lower Court ought not to proceed to grant the same relief. Also that the alternative monetary relief cannot be granted without proof of same by credible oral evidence because if is in the nature of special damages.
For the 1st Respondent, it had deposed to the items of special damages and attached invoices as evidence in proof as
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Exhibits ZV6 to ZV25, and this was not contradicted by the Appellants. The lower Court had in granting the relief sought, ordered as follows:-
4. The Respondents are hereby ordered to return within 30 days to the Applicant all the properties of the Applicant including machinery equipment, loader trucks, cranes and vehicle which the 7th Respondent removed or carted away from the premises at No. 1A Ozumba Mbadiwe St. Victoria Island, Lagos on or about the 26th of August 2006.
In the alternative if the Respondents fail to return the properties to the Applicant the sum of $5, 707, 297. 90 be the invoice value of the properties removed from the premises of the Applicant by the 7th Respondent.
However, it had earlier been recorded in the said Ruling at page 225 of the record that the 1st Respondent did seek to withdraw Paragraph (d) of the reliefs sought. Indeed a perusal of the said record of appeal show that in the 1st Respondents written submission in the lower Court it was stated at page 135 as follows:-
The Appellant seeks to withdraw the main relief in Paragraph (d) for the return of its properties forcibly
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removed by the Respondents. Consequently, the ALTERNATIVE relief for the monetary value of its properties would now be its main relief in that paragraph.
It seems to me that the import of the above set out statement in the 1st Respondents written address is that it abandoned Paragraph (d) of the reliefs sought and in its place relies on the claim for special damages of the total sum of $5,707,297,90 (US Dollars) which claim had earlier been sought as an alternative relief.
It is therefore wrong, no doubt, for the lower Court to have proceeded to grant the said relief for return of the properties carted away and that it should be done within 30 days failing which the Appellants and the 2nd Respondent are to pay the sum of $5 707, 297, 90 (US Dollars) being the invoice value of the said properties so removed from the 1st Respondents premises.
Having expressly abandoned the claim in Paragraph (d) of the reliefs sought, the said claim is deemed as non existent and not to have been asked for by the 1st Respondent.
The law is trite that the Court is without power to award to a claimant that which he did not claim. A
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Court of law may award less but not more than what the parties claimed. More so, the Court should never award that which was never claimed or pleaded by either party. It should therefore be borne in mind that a Court of law is not a charitable organization and its duty in civil cases is to render unto everyone according to his proven claim. See EZEONWU VS ONYECHI (1996) 2 NWLR (PT 438) 499; EKPEYONG VS NYONG (1975) 2 SC 65; AGU VS ODOFIN (1992) 3 SCNJ; A.G. CROSS RIVER STATE VS A.G. OF THE FEDERATION (2005) ALL NLR 144.
In the instant case, the 1st Respondent having expressly abandoned relief (d) claimed in the originating motion, the lower Court is totally devoid of the power to restore and award same against the Appellants. I therefore agree with the submission of the learned Senior Counsel for the Appellants that the said claim in Paragraph (d) ought not to be granted but struck out as abandoned. As to whether the lower Court ought to have awarded the alternative claim for special damages in the sum of $5,707, 29, 90 (US Dollars). It is an established principle of law that where a claim is in the alternative, the Court should first consider whether the
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principal claim ought to have succeeded. It is only after the Court may have found that it could not, for any reason, grant the principal or main claim that it would then proceed to consider the alternative claim. The Court is therefore not shut out from considering and deciding on the alternative claim because the main claim is not established. See C.O.P. VS OGUNTAYO (1993) 7 SCNJ 66; G.K.F. INVESTMENT (NIG) LTD VS NITEL PLC (2009) 6-7 SC (PT 11) 163; XTOUDOS SERVICES NIG. LTD. ANOR VS TAISEI (WA) LTD (2006) 6 SCNJ 300.
In the case under consideration the abandonment of the claim in Paragraph (d) by the 1st Respondent renders it not grantable and gives room for the lower Court to consider the alternative claim as presented by the 1st Respondent. Rather than that being the case, the lower Court adopted the alternative claim as an option to the failure of the Appellants to comply with the main claim that had been abandoned. This no doubt amounts to putting something on nothing which end result is a total collapse. By ordering the Appellants to return the properties which the 5th Respondent carted away within 30 days and which if not complied with, they
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shall in the alternative pay the sum of $5, 707 297, 90 (US Dollars) being the invoice value of the properties removed from the 1st Respondents premises. The lower Court no doubt awarded a claim not sought for by the 1st Respondent.
But assuming that the alternative claim for special damages in the sum of $5, 707,297, 90 (US Dollars) were to be considered as an alternative claim. It is trite law that special damages are in a class of their own, requiring strict proof which can only be established by credible and ascertainable facts which have been specifically pleaded and of course strictly proved. ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY VS EKWENEM (2009) 6-7 SC 5; AKINKUGBE VS EWULUM HOLDINGS (NIG) LTD (2008) 4 SCNJ 404. Special damages are not meant to be inferred from the nature of the act complained of and do not follow in the ordinary course as is the case with general damages. They are exceptional and so they must be specifically claimed and strictly proved. See NNPC VS KLIFCO (NIG) LTD. (2011) 4 SC (PT 1) 108. In the instant case, the only proof before the Court and as canvassed by the 1st Respondent in page 19 of its brief of
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argument are Exhibits ZV6 to ZV 25 which are said to be delivery invoices by which the various items were delivered to the 1st Respondent. The lower Court also relied on same without any further proof to hold at page 242 of the Record as follows:-
With regard to relief 4 there is evidence which shows that the properties of the Applicant were evacuated by the Respondents. The Applicant has listed the properties in Paragraph 25 of the affidavit in support of the Motion on Notice and the invoice issued in respect of the properties have been annexed to the affidavit in support as Exhibit ZV6-ZV25. The invoices show that the items were brought in October 1988. The total invoice value of the items is stated to be $5, 707, 297. 90. I think this action be an application presented under the Fundamental Right (Enforcement Procedure) Rules 1979 in which there is no trial for the evidence relating to the invoices to be rested the appropriate Order to be made is an Order for the return of the properties listed in Paragraph 25 of the affidavit in support which were carted away from the Applicants premises by the 7th Respondent.
From the above set out
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finding of the lower Court, it is clear that there was no evaluation of the affidavit evidence before the Court nor a specific finding made whether the claim for special damages was strictly proved in compliance with the law. The mindset of the learned trial Judge on the issue is made apparent when he held and rightly too, that the action being an application for enforcement of fundamental right, there is no room for evaluation of the evidence relating to the invoices, in which case the appropriate order to be made is an order for the return of the properties removed from the 1st Respondents premises. He indeed ignored the fact that the relief for the return of the said properties had earlier been abandoned by the 1st Respondent. Little wonder then that he proceeded albeit erroneously to award a claim not asked for by the 1st Respondent.
The learned trial Judge made a correct finding that the claim for special damages was not strictly proved because there was no room for the evidence to be tested given the nature of the action before the Court. This indeed tallies with the submission of the Appellants to the effect that such claim for special
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damages require proof by credible evidence both oral and documentary.
The sudden volte face made by the lower Court to attach the said claim as an alternative to failure to return the removed properties which is a claim already abandoned by the 1st Respondent cannot therefore stand having not been strictly proved according to law relating to special damages.
This issue is therefore resolved in favour of the Appellant.
In the final result, I hold that this appeal succeeds in part and it is accordingly allowed in part.
Consequently, except for relief No. 4 which is hereby set aside, the judgment of the Federal High Court delivered by DAN ABUTU J. on the 2nd Day of November 2007 is hereby affirmed.
Parties to bear their costs.
Other Citations: (2016)LCN/8781(CA)
