Elder Sunday Omotesho (Regent) & Ors V. Alhaji Abubakar Abdullahi & Ors (2007)
LawGlobal-Hub Lead Judgment Report
ISA AYO SALAMI, J.C.A
In the High Court or Lagos State, in the Ikeja Judicial Division, the Hausa Community Development Association, in representative capacity, brought an action against the Federal Ministry of Works and Housing as well as the Attorney General of the Federation claiming as follows:
“… A Declaration that the plaintiffs are entitled to the statutory right of occupancy in and over the land measuring 135.162 hectare of land surface, lying and being at phase 11, Federal Low Cost Housing Scheme, Abule Egba, Agege in Alimosho Local Government Area of Lagos State, which is more particularly described and delineated on Survey Plan No ASC/LA/149/93.
- An order directing the Defendants to issue a certificate of occupancy to the Plaintiffs in respect of the said piece of land.
- An order of perpetual injunction restraining the Defendants by themselves, their servants, workmen, privies or agents howsoever from disturbing or otherwise interfering with the plaintiffs’ rights over the said parcel of land”.
The defendants, upon service of the originating summons on them, filed a notice of intention to rely on preliminary objection, challenging the jurisdiction of the trial court on the ground that the Lagos State High Court lacks competence to entertain the suit by virtue of the provisions of section 230(1)(q) and (s) of the Constitution (Suspension and modification) Decree No 107 of 1993.
The matter came on for hearing on the 27th January, 1997 when both parties failed to show up at the trial court. The notice of intention to rely on a preliminary objection was consequently struck out for want of prosecution.
The action, thereafter, proceeded to trial with the plaintiff calling three witnesses, in addition to producing some documentary evidence which were admitted. The plaintiffs’ learned counsel addressed the court in writing.
Learned trial judge in his judgment came to the following findings:
“Finally, I would say, it is a fact established by the evidence adduced on records, the facts which were not challenged by the Defendants, that the plaintiffs are entitled to the issue of statutory right of occupancy on the plot of land measuring 135.162 hectares of land situate, lying and being at Phase 11 Federal Low Cost Housing at Abesan Scheme, Abule Egba, Agege in Alimosho Local Government Area of Lagos State, more particularly described and delineated on survey plan No ASC/LA/149/91.
The 1st defendant in particular is hereby ordered to issue a certificate of occupancy to the plaintiffs in respect of the said piece of land approved by the Ministry of Works and Housing.
Thirdly there would be an order of perpetual injunction granted restraining the Defendants by themselves, their servants, workmen, privies or agents or otherwise howsoever from disturbing or otherwise interfering with the plaintiffs’ rights over the said parcel of land.”
The defendants who were aggrieved by the order of the learned trial Chief judge, Adagun, were apparently satisfied or content with the judgment and have, therefore, not appealed against it.
The persons who sought and obtained leave of the trial court pursuance of section 243(a) of the 1999 Constitution of the Federal Republic of Nigeria were not involved in the matter at the hearing in the court below. Not only was there no shred of evidence pertaining to them led through out the length and breath of the proceedings; but also there was no order made against them to justify their bringing an appeal.
The notice of appeal contains two grounds of appeal which will be recited immediately hereunder without their respective particulars.
“Ground One.
The learned trial judge erred in law in assuming jurisdiction to grant the reliefs sought by the plaintiffs/respondents herein.
“Ground Two.
The learned trial judge erred in law in making order against the Appellants who were not parties to the action and thereby violated their right to fair hearing guarantee by section 33 of the Constitution of the Federal Republic of Nigeria, 1979
(Underlining mine)
In the circumstances of this appeal, it will be necessary for easy identification of the parties in the appeal to note that the interested persons are the appellants; the plaintiffs in the court below will be referred to as plaintiffs/respondents while the defendants therein will be denoted as defendants/respondents.
In compliance with the provisions of order 6 rules 2 and 4 of the Court of Appeal Rules 2004, briefs of argument were filed and exchanged. The appellants’ brief of argument was filed on 18th November, 2005 within the time extended. The plaintiffs/respondents filed their brief within time. While defendants/respondents failed to file their own brief. There is no appellants’ reply brief.
The appellants’ formulated the following issues in their brief of argument-
“1. WHETHER the Lower Court had jurisdiction to entertain the substantive case.
- WHETHER the judgment of the Lower Court is binding on the Appellants when they were not parties to the suit”.
On the other hand, the plaintiffs/respondents adopted appellants’ issue 1 and formulated their second issue as follows:
“WHETHER the learned trial judge made orders against the appellants.”
At the hearing of the appeal learned counsel for appellants and plaintiffs/respondents adopted and placed reliance on their respective briefs of argument.
They also elucidated on their briefs of argument.
The application for leave to appeal as an interested party was assigned to Idowu, J. who, without considering the provisions of the constitution under which he was invited to exercise his discretion, unhesitatingly and cursorily ruled as follows when told that was the last day –
“Court: leave hereby granted the applicant to file the said notice of appeal”
The relevant section of the constitution under which the relief was sought provides as follows:
“243 Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be –
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter…
(Underlining mine)
The learned judge, Idowu, J. could not hesitate to spare a thought for the condition precedent for granting the application. He ought to have tarry a little to consider whether the applicants before him have interest in the subject matter. His approach respectfully was lackadaisical which is best suited for a court of summary jurisdiction. Before a person who was not a party can be permitted to appeal under this provision of the constitution, such a party ought to show that he is interested or aggrieved by the decision sought to be appealed against. His interest must be shown from the record before the court and not material garnered from affidavit in support of the application for leave to appeal as an interested party itself. The appeal would not be heard and determined on extraneous matters but on the record of appeal. The applicant or appellant must demonstrate his interest from the record of appeal.
In the case of Akinbiyi V Adelabu (1956) I FSC 45, the Federal Supreme Court considered the right of a person to appeal. The facts of the case are to the effect that the Inspector General of Police successfully prosecuted the respondent, Adelabu, for contempt, having shown “disrespect speech” to Chief D.T. Akinbiyi, a member of the Ojoba 11 Native Court, “to wit by referring to him as a fool and as mad” in the Magistrate Court, Ibadan. Adelabu successfully appealed to the High Court which acquitted him on the ground that “judicial proceedings were not being had or taken” at the time the offensive remarks were uttered, a condition precedent in a case of contempt of court, which that case was.
The Native Court Judge, Chief Akinbiyi then lodged an appeal to the Federal Supreme Court against the decision of the High Court Western Region. The main trust of the learned counsel for Chief Akinbiyi, Mr. Mclntyre, was to the proposition that the words “person aggrieved” ought to be given their ordinary dictionary meaning, and that the only person there that could possibly be said to be aggrieved is the Native Court Judge who was grievously insulted in his own court, and who was the real complainant in that case.
The Federal Supreme Court in resolving the issue of the person entitled to further appeal from the decision of the High Court under section 71 of the Magistrates’ Courts Western Region Law 1954 to the Federal Supreme court observed as follows-
“The only person entitled to appeal is a person aggrieved. In Ex parte Sidebotham 14 CH.D. 465 James, L.J., said a “person aggrieved” must be a man who has suffered a legal grievance.” As Lord Esher in his judgment in Ex parte Official Receiver in re Reed. Bowen and Co, 19 QBD 174 observed, referring to the passage cited in the judgment of James L.J” “he does not say a pecuniary grievance, a grievance to his property or to his person; he says a legal grievance”, It means a person against whom a decision had been pronounced which has wrongfully deprived him of something, or wrongfully refused him something which he had a right to demand. Lord Bramwell, L.J., in his judgment in Ex parte Sidehotham, said “but certainly the general rule is that an appeal must be brought by a party” (meaning one of the parties to the dispute which is brought before the court for its decision) “who has endeavoured to maintain the contrary of that which has taken place”
(Underlining mine)
The court then concluded that “person aggrieved” under sections 70 and 71 of the Magistrate’ Courts (Western Region) Law 1954 could mean no more than one of the parties to the proceedings. It does not contemplate the person who directly suffered the injury. It seems to me that the conclusion in Akinbiyi V Adelabu (Supra) is within the contemplation of the first category of person who can exercise right of appeal under section 243(a) of the Constitution which confers right of appeal solely on a party to a civil proceedings.
Perhaps Chief Akinbiyi would have acquired legal grievance to entitle him to appeal against the decision of the High Court Western Region if the trial magistrates court had made an order awarding damages in his favour against Adelabu and such order had been set aside by the High court. The setting aside order would have wrongfully deprived him of the damages or wrongfully denied him of something which he had a right to demand. It means he would have a right to appeal to demand the damages awarded to him by the trial magistrate’s court. In R V Rowe 39 C.A.R 55, the appellant died before appeal against sentence was heard. His widow sought to continue with the appeal but leave was refused as she was not considered to be an aggrieved person. The position would have been different if fine were imposed and not sentence to imprisonment.
The second class of person who may exercise right of appeal under the section are not to do so as of right. It is a right of appeal exercisable, with leave of either this court or the court below, at the instance of a person who can show that he has an interest in the matter. This is an exception to the general rule stated by Bramwell, L.J., in his judgment in Ex parte Sidebotham (Supra) “that an appeal must be brought by a party” which was endorsed by the Federal Supreme Court in Akinbiyi ‘s case (Supra). In the circumstance, respectfully the party seeking to exercise right of appeal under this provision of the constitution has a duty, before anything else, to satisfy the court that he has a legal grievance in the matter. He is to show that the decision pronounced was against him or “has wrongfully deprived him of something or wrongfully refused him something which he had a right to demand” per Lord Esher in Ex parte official Receiver in re Reed, Bowen and Co (Supra). The appellants are clearly not aggrieved by the order of the lower court itself, but by the consequences which arises from it. See In re White, Ex parte Mason (1880)14 CH.D 71. It, therefore, follows that mere consequence of the decision does not vest the appellants with the status of an aggrieved party and are thereby not entitled to appeal having not shown their legal grievance. See also Mobil Producing (Nig) Ltd V Monokpo (2003) 18 NWLR (Pt. 852) 346, UBA Plc V ACB (Nig) Ltd (2005) 12 NWLR (Pt. 939) 232, 262.
In the instant case, the appellants woefully failed respectfully to show any legal grievance in the judgment pronounced by the learned trial Chief Judge. Indeed there was no scintila of evidence before the court below that appellants had direct or remote interest in the land in dispute between the plaintiffs and the defendants therein. It could, however, be garnered from paragraph 4.11 of the appellants brief that the land in dispute originally belonged to them before its acquisition by the defendants/respondents. Although the submission of counsel in the brief is no evidence, having admitted that the property had been acquired by the defendants/respondent, they had no further interest in the land in dispute to entitle them to be heard. I am mindful of the allegation contained in one of the particulars to ground 2 of appellants’ grounds of appeal to the effect that the Federal Government, that is defendants/respondents, had since granted to them lease in respect of the land in dispute or part thereof before the commencement of the action.
Neither the facts of the acquisition nor of the grant was pleaded and evidence adduced therefor in the court below. In the absence of pleadings and evidence the trial court had no knowledge of the appellants’ interest and made no determination in that regard. The orders of the learned trial Chief Judge which had been recited earlier in this judgment made no reference to the appellants. The appellants are therefore not necessary party for resolving all the issue in controversy in the action. The judgment was directed against the defendant/respondents who thereby acquired legal grievance plus could have appealed as of right against the decision. But it seems to me they have acquiesced. The appellants might bring an action challenging the right of the defendant/respondents to acquire their community land and vest same in another community or having been granted lease in respect of the land the defendants/respondents could not properly turn around to lease the same parcel of land to the plaintiffs/respondents. Whatever be the interest of the appellants it could not be entertained and fully determined in this appeal. The appropriate forum to consider and determine all issues in controversy between all the parties is a trial court and not an appellate court which this court is.
On the jurisdiction of the Federal High Court to entertain exclusively suit against Federal Government or any of its agencies, section 230(1) (a) – (s) does not contain a blanket provision. The constitution does not confer blanket jurisdiction to the effect that any action against the Federal Government or its agencies, notwithstanding the subject matter of the action, must be instituted or entertained and determined in the Federal High Court. The section does not confer jurisdiction on parties but on the subject matter of the suit. See the cases of Omosonwan V Chiedozie (1998)5 NWLR (Pt 5(6)477, 484 per Akpabio. J.C.A; NEPA V Edegbero (2003)18 N.W.L.R (Pt 798) 79. 100-101, (2003)9 W.R.N.I per Niki Tobi JSC, Aehebe V Nwosu (2003)7 NWLR (Pt 818)103.1.29 per Olaguoju, J.C.A; P.P.M.C. Ltd – Delpln Petroleum Inc (2005)8 NWLR (Pt 928)458,490- 91 where this court per Salami, J.C.A. observed as follows:
“The claims of the respondent in the writ of summons and statement of claim in no manner whatsoever come within the contemplation of the provisions of section 251(1)(p) and (f). The three claims do not seek for the administration nor management and control of the two appellants who are undoubtedly agencies of the Federal Government. Similarly, the reliefs sought in both processes, which had earlier in this judgment been set out are neither an action nor proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by any of these agencies… The respondent sought no declaration nor injunction affecting the decision not to proceed with the importation of the products. It did not seek a bite at the administration, management and control of the two agencies.”
The crux of the matter is the subject matters of the claim. To confer jurisdiction exclusively on the Federal High Court the matter must respectfully be civil, and must be seeking participation or role in the administration, management and control of the Federal Government or any of its agencies. The process must also disclose an action or proceedings for a declaration or injunction affecting the validity of any executive, administrative action or decision by the Federal Government or any of its agencies. The plaintiffs/respondents’ claims is not seeking to be part of any area exclusively reserved for the Federal High Court. They were essentially seeking that the two institutions particularly the first concludes the grant of land already made to them. The mere making the Federal Government or its agencies party in a process does not automatically vest jurisdiction in the Federal High Court by dint of section 230(1) of 1979 Constitution as amended which is repeated ipsissima verba in section 251 of 1999 Constitution. The provisions of the two sections are in pari materia. They do not confer jurisdiction on parties but on subject matter or nature of the suit. Once a matter, such as this, arises, the claim of the plaintiff or claimant must be carefully examined to determine to which of the high courts, State or Federal, does jurisdiction belong. The Supreme court in the case of Onuorah V Kaduna Refinery and Petrol Chemical Ltd (2005) All FWLR (Pt. 256) 1356, (2005)6 NWLR (Pt 921) 393 seems to have finally put the controversy at rest.
I am, therefore, in agreement with the plaintiffs/respondents learned counsel that the trial court was properly seized of the matter. The two issues are consequently resolved against the appellants. The appeal fails and is hereby dismissed. The decision of the trial court is affirmed with costs which is assessed at N10,000,00 in favour of the plaintiffs/respondents.
The defendants/respondents did not take part in this appeal and are consequently not entitled to costs of the appeal.
Other Citations: (2007)LCN/2403(CA)
