Chukwudi Unachukwu V. Mr Joseph Ajuzie & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
CLARA BATA OGUNBIYI, J.C.A.
This is an appeal against the considered ruling of the Honorable Justice B.B Aliyu of the Federal High Court Lagos delivered on the 28th October, 2003. For a better and clearer understanding of the facts giving rise to this appeal the historical background and succinct general overview of the case would be necessary. Tacitly the appellant herein is a trader who deals in used cars, trucks and buses at mat and Jonas motors Limited site D.I. United Berger Motor Dealers Association, Oshodi /Apapa expressways, Berger Bus stop Lagos.
The 1st respondent is also a trader who deals in Foams, and trades under the name and style of Joe trade Nigeria Enterprise, and is a distributor with Mouka Limited.
The 2nd respondents are officers of the Nigeria police under the direct command and supervision of the 5th respondent herein.
On or about 29th November, 2002 the Appellant had in his custody a Mercedes Truck 814, imported by one Johnson Isiaka of no 142. Adetola street Aguda Surulere with instruction to sell same to any buyer on his behalf.
On the aforesaid 29th November, 2002, the 1st respondent in company of one Nnamdi Nnadi (a.k.a Nadeco) who also is a trader in the Berger site, approached the Appellant to negotiate for the purchase of the said Mercedes Truck 814 and they agreed on the price of N900,000 (Nine Hundred Thousand Naira Only).
The 1st respondent also informed the Appellant that the condition for the payment was that the truck should be driven to Mouka Limited factory site at Ikeja, where the managing director of Mouka was to inspect same to ensure its condition before making payments.
The Appellant refused to accept this condition, because it was contrary to the method of purchasing a truck wherein payments are first received before the used truck is driven out of the park. This is in the event the transaction eventually fails.
That the Appellant initially refused this condition but later grudgingly gave in after much persuasion from Nnamdi Nnadi and further assurances from the said 1st respondent on his further undertaking that, if the Appellant allowed the vehicle to be moved to Mouka Limited premises, they would immediately pay the purchase price.
That the 1st respondent consequently, took the Appellant and the afore said Nnamdi Nnadi to Mouka Limited factory Ikeja, but before the vehicle was removed the 1st Respondent agreed to make a non- refundable deposit of N100,000 (One Hundred Thousand Naira) where in, the parties entered into an agreement. See page 8 of the Record of Appeal.
On arrival at the aforesaid Mouka Limited factory at Ikeja, the 1st Respondent inflated the purchase price to N1,000,000 (One Million Naira).
The Managing Director and the 1st Respondent therefore requested that the Appellant took the said vehicle to their factory for purpose of inspection by them, through their mechanics. That in response, the Appellant again objected but was persuaded by the 1st Respondent to allow the inspection of the vehicle. As a result therefore a further clause was added to the aforesaid agreement, that the 1st Respondent shall pay the outstanding balance of N800,000 (Eight Hundred Thousand Naira ) on or before the 9th of December, 2002 and that” failure to pay on the agreed date, the amount deposited will be forfeited.” The 1st Respondent accordingly appended his signature to the agreement.
That the Appellant went to meet the 1st Respondent at the factory where the latter for the first time informed the former that he was not ready to pay the outstanding balance unless the Appellant was ready to deduct the sum of N50,000 (Fifty Thousand Naira). Upon refusal by the appellant to effect deduction, the 1st Respondent also refused to pay the remaining purchase price and asked the Appellant to take back his vehicle.
That consequent upon, the 1st Respondent requested to be refunded the N100,000(One Hundred Thousand Naira) non-refundable deposit but that Nnamdi and the Appellant urged him to come to Berger site so as to resolve the matter. The said 1st Respondent did not show up again until 8th August, 2003,when in company of two armed police men, the 1st Respondent was alleged to have arrested the Appellant and forcefully removed him to Area ‘F’ Ikeja ,where the Appellant was said to be detained for (2) two consecutive days without bail or food and severely tortured by the 2nd respondent at the instance of the 1st respondent.
That when the Appellant was taken to Area ‘F’ after his arrest, he was tortured, and forced under gun point to sign an undertaking to refund the non-refundable N100,000 ( One Thousand Naira) to the 1st Respondent on or about 30th of September, 2003. Further more, that the 2nd Respondent pointed a pistol to the appellant’s head and demanded that he signed the aforesaid undertaking or he would shoot him and therefore would end the matter.
That the Appellant/Applicant applied for leave to enforce his fundamental right but the learned trial Judge refused to grant the Appellant leave for the application. In refusing therefore, the lower court said as follows:-
“That Appellant’s statement has clearly shown that the subject-matter giving rise to the alleged infringement is simple contract of sale and not enforceable by this court.
Where both the State High Court and the Federal High Court exist in a state, though both have concurrent jurisdiction in matter pertaining to Fundamental rights; it is better to take such issues before the Court which has jurisdiction to determine all the issues raised in the enforcement of fundamental rights Procedure. See the case of Tukur v Government of Gongola State (1989)4 NWLR (pt.117)517 at page 549 Per Oputa JSC as he then was. Consequently leave is hereby refused and the application is struck out.”
Against the said ruling, the appellant has now appealed to this court.
The notice and grounds of appeal were dated 10th and filed 11th November 2003 with same containing two grounds of appeal with the particulars. The appellant in accordance with the rules of court filed his brief of argument dated 9th and filed on the 20th April, 2005. The respondents despite the service on them of the appellant’s brief, did not see it necessary to file any respondents’ brief. By an order of this court, made on the 26th September, 2007, pursuant to an application dated and filed 13th June, 2006, the appeal was set down for hearing on the appellant’s brief alone. On the 17th April, 2008 therefore, when the appeal was called up for hearing, the learned appellant’s counsel Mr. Emeka Okpoko adopted and relied on the said appellant’s brief of argument and urged that the appeal be allowed and the decision of the lower court appealed against should be set aside.
The two issues formulated by the appellant’s counsel from the two grounds of appeal are as follows:-
(1) Whether the court below was right in refusing to grant the Appellant leave to enforce his fundamental right.
(2) Whether the court below was right in law to have raised the issue of jurisdiction suo motu and declined same when the applicant counsel was not afforded the opportunity to address the court on the issue having regard to the right of fair hearing.
Submitting on account of the 1st issue raised, the learned counsel Mr Okpoko Esq. graphically restated the law relating to the enforcement of appellant’s fundamental right and the procedure, he argued, is wholly and clearly set out in the Fundamental Right (Enforcement Procedure) Rules 1979.
Specific reference was made to the provision of Order 1 rules 2(1), 2(2) and 2(3) as well ,as the steps to be taken by an applicant seeking to enforce his right which has either been infringed or is likely to be infringed. Counsel re-iterated that at the exparte stage for leave for enforcement, all an applicant is expected to disclose by his affidavit is that he has a locus standi, in the sense that his fundamental rights have been infringed or likely to be infringed or contravened. That the court is at this stage precluded from going into the substantive matter.
Learned counsel further argued that, the ordeal caused the appellant by the police, in pointing a pistol at his head, is purely civil in nature and which is not within the statutory duty of the police to recover a non refundable deposit, voluntarily made by a customer. He argued further that the respondent had neither exercised nor exhausted the process of settling disputes emanating from the transaction as contained in the laws of our land.
Learned counsel cited the decision in the case of Ken Mclaren Orso v James Lloyd Jennings (2003) 3 N.W.L.R (pt 808) 470 where at page 475 it was held that the general duty of the Nigerian Police does not empower them to enforce a contract or to collect rents or common debts. That the respondents are not competent and therefore have no authority or justification whatsoever by arresting and detaining the appellant in his business. That unless the court intervenes, the respondents are likely to repeat the same illegal and of course the sadistic acts against his, appellant’s, person. That the acts amounted to a violation of his right as clearly spelt out by the Constitution and preserved by Articles 4,5 ,6 and 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement )Acts Cap.10 Vol. 1 Laws of the Federation, 1990.
On the jurisdiction of the court to adjudicate on the matter, the learned counsel submitted a number of authorities wherein the nature of the relief, he argued, is that upon which both the Federal High Court as well as the State High Court have concurrent jurisdiction. This view he argued was held by the apex court in the case of Grace Jack v University of Agriculture Makurdi (2004) 5 N.W.L.R (pt 865) 208 at 213.
Counsel argued the error committed by the lower court in striking out the appellant’s suit and urged that the appeal be upheld on this issue.
Having regard to the two issues in this appeal, it is obvious that the first is predicated upon the second. This I say because the refusal by the lower court to grant the appellant leave to enforce his fundamental right was based on the question of subject matter of “robbing the court of jurisdiction.”
I would in the circumstance see it appropriate to take the two issues together for the determination of this appeal.
Issue two therefore is whether the court below was right in Law to have raised the issue of jurisdiction suo motu and declined same when Appellant’s counsel was not afforded the opportunity to address the court on the issue, having regard to the right of fair hearing.
Submitting on the issue, the learned counsel again re-iterated the error by the trial court when it raised the issue of jurisdiction suo motu and same without first affording the appellant’s counsel an opportunity of addressing the court, on the issue. Citing the authority of Masu Mohammed Nasiru v Adamu Chanji (1999)1 N.W.L.R (pt.588) 605, the counsel garnered that, to deny the parties the opportunity to be heard on the issue, is tantamount to a denial of fair hearing . A further authority cited was the State V Moshood Oladimeji (2003) 14 N.W.L.R (Pt.839) 57. The learned counsel therefore urged that the appeal be allowed.
The general principle of law is trite in that it is the claim of the plaintiff that determines the jurisdiction of the court. Plethora of authorities avail in support vide the cases of Okoroma v UBA, Adesanya & anor v Olayemi & Ors., Society General Bank Nig Ltd. v Safa Steel and Chemical Manufacturing Ltd. all supra.
A further related authority is the case of Grace Jack v University of Agriculture Makurdi also supra, wherein the apex court held that in matters of the ‘Enforcement of a person’s Fundamental Rights, both the Federal High court and a High Court of a State have concurrent jurisdiction.
It is also trite law and as rightly submitted by the learned appellant’s counsel that the law relating to Enforcement of Fundamental Right (Enforcement Procedure) Rules are as prescribed in the provisions related in his argument especially as provided by Order 1 Rule 2(1),(2) and (3) of the Law cited.
Reliefs (a), (b) and (c) sought by the applicant is at page 2 of the record of proceeding. The grounds upon which the reliefs are sought are also specified at page 3 of the said record with paragraphs 1-14 of the grounds giving a detailed information relating the back ground history consequent upon which the paragraph 15-25 of the grounds or statement are the consequential effects to the earlier paragraphs and giving rise to the relief sought for. The grounds therefore serve a foundational framework upon which the reliefs are predicated. By the very nature of the subject matter of the claim, it emanates from a contractual agreement entered into by the parties. This is crystal clear from the claim especially with reference to the heading at page 3 of the record wherein it is worded as “GROUNDS ON WHICH RELIEFS ARE SOUGHT”
The learned counsel had further submitted denial of fair hearing by the court’s declining jurisdiction suo motu.
It is trite and as rightly argued by the counsel that the general position of the law is that, where an issue is raised by a court suo motu, the principles of Audi Alteram Partem must strictly be observed to afford parties the opportunity to respond thereon. The principles are well enunciated for instance in the case of Masu Mohammed Nasiru v Adamu Chanji under reference supra, wherein Oguntade JCA at page 611 had this to say:-
I agree with (My learned brother Mohammed JCA) that it was open to the lower court to raise suo motu the issue of jurisdiction hinged on whether or not leave was obtained to bring the appeal out of time. The lower court however should have called on the parties for further address on the point. It should not have proceeded to strike out the appeal on a ground which it raised suo motu and upon which it did not have the benefit of counsel’s address.”
Further still and on the same principle of law their Lordships of the apex court in the criminal case of The State v Moshood Oladimeji supra, held that courts of law have power to raise an issue suo motu. At pages 74- 75 for instance Iguh JSC made the following pronouncements and said:-
“… when a court for any compelling reasons funds it necessary and in the interest of Justice to raise a point in a case suo motu, the parties must be given an opportunity to be heard on such point, particularly the parties that may suffer some prejudice as a result of the point raised suo motu. See Ejowhonwu v Edok -Efes Mandilas Ltd. (1986) 5 N.W.L.R (Pt. 39) 1, Adegoke v Adubi (1992) 5 NWLR (Pt.242) 410 at 420………….”
Despite the general principles laid down supra in respect of a court raising a point suo motu, the circumstance of the cases under reference are very much distinguishable with the matter at hand and in issues before us. In other words in the matter under consideration, the issue raised by the court appeared to be secondary and that which did not affect the main issue for consideration then before the learned trial judge. I have restated earlier in this judgment that the reliefs sought under the enforcement of the appellants’ fundamental rights procedure are ancillary and arising out of the main claim of a simple contract. The former is therefore dependent upon the latter. The lower court no doubt has concurrent jurisdiction with the High Court under the Fundamental Right (Enforcement Procedure) Rules 1979.
The snag however is that since the foundational basic of the reliefs is not within the jurisdiction of the lower court but the High Court it would be completely out of place to assume jurisdiction as contemplated by the learned counsel especially where matters of simple contract are never within the jurisdiction of the Federal High Court, but the State High Court.
The learned trial judge in arriving at the decision further said this in her ruling at page 13 of the record:-
“The contract of sale between individual is outside the ambit of jurisdiction of this court and it has been held in numerous superior judicial authorities that no court can try an issue of fundamental right without determining how such rights were infringed.”
The grounds upon which the reliefs arising from the infringement are sought, have been clearly borne out on the record at paragraphs 4, 5, 6 and 7. In other words upon a simple contract of sale of a Mercedes Truck 814. The fortification of this conclusion is the case of Tukur v Governor of Gongola State under reference supra at page 594 of the judgment Obaseki JSC had the following pronouncement to make:-
” if there is a court with jurisdiction to determine all the Issues raised in a matter including the principal issue, it is improper to approach a court that is competent to determine only some of the issues.
The incompetence of the court to entertain and determine the principal question is enough to nullify the whole proceeding and judgment as there is no room for half judgment in any matters brought before the court.”
(the emphasis are mine.)
Oputa JSC in his contribution also made the following similar pronouncement wherein he said thus at page 567:-
“… A court cannot adjudicate over ancillary claims if it has no jurisdiction to intertain the main claim and if the ancillary claims will inevitably involve a discussion of the main claims.”
The main principal claim in the matter at hand is the failure to fulfill the contractual agreement between the parties. The fundamental rights reliefs are ancillary claims subject to the main claim. The former therefore cannot be determined without reference relating the main claim, as it is the genesis of the relief. The raising of the issue suo motu, contrary to the submission of learned counsel, had in no way prejudiced the appellant, as it did not affect the outcome of the basis upon which the ultimate decision was arrived at. In other words the appellant did not suffer any prejudice as contemplated by their Lordships in the case of the State v Moshood Oladimeji supra.
The authorities earlier cited and requiring the parties to address on issues raised suo motu are clearly distinguishable from the case at hand. The submission by the learned counsel is therefore a complete misconception as it only amounts to an academic exercise which this court is not pre-disposed to engage in.
On the totality of the issues raised, same I hold are resolved against the appellant. I see no reason why the judgment of the learned trial court should be upturned. The appeal is devoid of any merit and consequent to which I affirm the ruling of the trial court in striking out the application.
The appropriate court to determine both the main claim and also the ancillary reliefs is the State High Court. The appeal in the result is dismissed with no order made as to costs.
Other Citations: (2008)LCN/2864(CA)
