J. U. Achebe Chief Medical Director, National Orthopaedic Hospital, Enugu & Anor V. Chief Dona Nwosu & Anor (2002)
LawGlobal-Hub Lead Judgment Report
OLAGUNJU, J.C.A.
The consolidated appeals are from two decisions of Ajakaiye, J. of Enugu Judicial Division of the Federal High Court, delivered on 27/10/99 and 16/12/99 respectively. The first appeal by the two respondents/appellants, is in respect of an action for declaration over a piece of land and injunction. The second appeal is by the 2nd respondent/appellant against the decision of the learned trial Judge, on their application for restoration by the applicant/respondent of the wall fence of the 2nd respondent/applicant’s building, which he destroyed while the applications for a stay were pending before the trial court.
In the substantive action giving rise to the first decision, the applicant/respondent on an ex parte application brought under the Fundamental Rights (Enforcement Procedure) Rules, got leave from the court below to enforce against the 2 respondents/appellants his fundamental rights under sections 40 and 42 of the Constitution of the Federal Republic of Nigeria, 1979, in respect of a piece of land known as ‘Plot 5/4, Triangle Layout near Orthopaedic Hospital, Enugu’. In the application, the Federal Ministry of Health, the Federal Ministry of Works and Housing, and the Inspector-General of Police, were joined as the 3rd, 4th and 5th respondents, respectively.
In the statement supporting his motion on notice for the enforcement, the applicant/respondent sought the following reliefs:
“1. A declaration of court that the applicant is entitled to own property as enshrined in s. 40 of the 1979
Constitution of Nigeria as amended.
- A declaration of court that the respondents cannot dismantle, demolish or otherwise tamper with the applicant’s pharmacy shop and other appurtenances thereto located at and called Plot 5/4, Triangle Layout, near Orthopaedic Hospital, Enugu, which is the lawful property of the applicant.
- A declaration of court that the applicant is entitled to the full enjoyment of the ownership and possessory rights conferred on him by the statutory right of occupancy granted to him over the aforementioned plot, including his right of way and or access to the plot.
- A mandatory order of court compelling the respondents to open up the wall erected on the access road to the applicant’s plot which has denied him access and or his right of way/entry to the property or alternatively allowing the applicant to open upon and or remove the portion of the wall inhibiting his right of way or access to the property.
- An injunctive order of court restraining the respondents, their agents or privies from demolishing, dismantling, walling or inhibiting the applicant’s right of way or access to aforementioned property”
On 27/10/99, the learned trial Judge granted all the reliefs sought and in particular order that the two respondents/ appellants must within 7 days, open up the wall erected on the access road to the applicant/respondent’s plot, with liberty to the applicant/respondent to demolish the wall if the respondents/appellants failed to do so ‘within the specified time.’
Dissatisfied with the decision on the substantive action, the respondents/appellants gave separate notices of appeal, the 2nd appellant on 29/10/99 and 1st appellant applied on 1/11/99. On the day each notice was filed, each appellant applied to the court below for stay of execution of the judgment pending the determination of the appeal. In the meantime, on 4/11/99 the applicant/respondent demolished the access wall of the 2nd appellant, while the motions for stay of execution of the judgment by the appellants were pending before the trial court.
Reacting to the destruction of the 2nd respondent’s access wall the appellants jointly applied to the trial court on 8/11/99, for an order compelling the applicant/respondent to restore the wall he destroyed. The application was consolidated with the earlier applications for stay of execution and on 16/12/99, the learned trial Judge refused the application for restoration of the demolished access wall but granted the application for stay of execution.
That decision was followed by filing of two further appeals, the first appeal filed by the applicant/respondent on 28/1/2000, against the grant of stay of execution and the second by the 2nd appellant on 25/2/2000 against the refusal to order the applicant/respondent to restore the demolished wall. It seems that the appeal by the applicant/ respondent was abandoned as he filed only a respondent’s brief in answer to the joint appeal by the 2 appellants and to the appeal from refusal to order restoration of the access wall filed by 2nd appellant only.
However, the appellants filed separate briefs of argument by different learned Counsel raising substantially the same issues in the appeal against the decision of 27/10/99. But because of the comprehensive nature of the 2nd appellant’s brief combining arguments on the two appeals, I will opt for the five issues formulated by learned Counsel for the 2nd appellant from a total of 6 grounds of appeal in her 2 notices of appeal filed on 29/10/99 and 25/2/2000, respectively. The five issues read:
“Issue No.1
(Based on grounds 1 and 2 of the notice of appeal dated 29/10/1999) whether title to land is enforceable by way of Fundamental Rights (Enforcement Procedure) Rules, and whether in any case, the Federal High Court has jurisdiction to entertain the suit relating to claim of title by the applicant.
Issue No.2 (Based on ground 3 of notice of appeal dated 29/10/1999) whether the learned trial Judge was right to have decided the case on the basis of the affidavit evidence before him in the face of irreconcilable conflicts contained therein, without first resolving those conflicts.
Issue No.3 (Based on ground 1 of the notice of appeal dated 24/2/2000) whether the lower court is correct in its conclusion that the applicant’s counsel was right to have refused service of the notice of appeal and the application for stay of execution based thereon because his brief had been determined with the delivery of judgment in the substantive suit.
Issue No.4 (Based on ground 2 of the notice of appeal dated 24/2/2000) whether sufficient materials were not placed before the lower court to support the allegation that the applicant’s counsel evaded service of court processes before the demolition of the wall fence the subject matter of the appeal.
Issue No.5 (Based on ground 3 of the notice of appeal dated 24/2/2000) whether the demolition of the wall fence by the applicant/respondent on 3/11/99 was legal, lawful and regular, and if not whether the learned trial court ought not to have ordered the restoration of the wall fence”.
The applicant/respondent also formulated four issues in his brief of argument, three of which are well-knitted to the 8 issues formulated by appellants. Issue 3 in the respondent’s brief is on the dichotomy between State Land and Federal Government property which is not raised as a complaint in any of the nine grounds of appeal filed by the two appellants. However that may be, I will examine the five issues raised by the 2nd appellant in due order as will keep distinct the claims that are canvassed in the two separate appeals.
The challenge of the jurisdiction of the learned trial Judge and the appropriateness of the mode of ventilating the applicant/respondent’s complaint for a legal redress are the major planks of the contention in issue one. On the first limb, learned Counsel for the 2nd appellant, Mr. Adetola-Kaseem, contended that the nature of the claims by the applicant/respondent is land matter over which the Federal High Court is not vested with jurisdiction. He referred to the claims by the applicant/respondent and to the affirmation by the learned trial Judge in his ruling of 27/10/99, at page 73 of the record, that the applicant/respondent’s claims involved ‘grant of title or interest in land’. He submitted on that premise that by a combined effect of sections 39(1)(a) and 51 of the Land Use Act, Cap. 202 of the Laws of the Federation, 1990, exclusive jurisdiction is conferred on the State High Court in respect of any land over which a statutory right of occupancy is granted by the Governor. He referred to the landmark decision of the Supreme Court on the matter in Adisa v. Oyinwola (2000) 10 NWLR. (Pt. 674) 116, among others, and submitted that the Federal High Court is not conferred with jurisdiction over matters involving interest in land and that the extension of the jurisdiction of the Federal High Court by Decree No. 107 of 1993, conferred no jurisdiction on the Federal High Court in land matters, which exclusively is the preserve of the State High Court in respect of land covered by statutory rights of occupancy.
The argument of Mr. Adetola-Kaseem is supported by learned Counsel for the 1st appellant, Chief Ugolo, who demonstrated that, contrary to the view of the learned trial Judge, section 40 of the Constitution of the Federal Republic of Nigeria, 1979, does not vest the Federal High Court with jurisdiction to entertain action in land matters and that the interpretation of that section by the learned trial Judge does not take enough account of the Land Use Act.
On the other hand, learned Counsel for the applicant, Mr. Oguejiofor, contended the contrary agitating that because the 2nd to 5th respondents at the trial court are all agencies of the Federal government, the Federal High Court is vested with jurisdiction to entertain the applicant/respondent’s action as it is constituted by virtue of sub-sections 230(1)(r) and (s) of the Constitution of the Federal Republic of Nigeria, 1979, as amended by sub-section 1(3) of Decree No. 107 of 1993. The provisions, he argued, conferred jurisdiction on the Federal High Court (a) in respect of sub-section (r), in any action on the operation and interpretation of the Constitution in any matter affecting ‘the Federal Government or any of its agencies’ and, in respect of sub-section (s), in ‘any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies’. He submitted that because the reliefs being sought by the applicant/respondent are for declaration and injunction against the 2nd to 5th respondents, who are unarguably the agencies of the Federal Government the proper court that has jurisdiction to entertain the action is the Federal High Court and that reference to sections 39(1) and 51 of the Land Use Act and section 236(1) of the Constitution and the decisions in Sadikwu v. Dalori (1996) 5 NWLR (Pt. 447) 151; (1996) 4 SCNJ 209; and Adisa v. Oyinwola (supra), by learned Counsel for the appellants is misleading. Equally inappropriate is the decision in Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517, 541-542, also cited by learned Counsel for the appellants, which he submitted, does not support the contention that the Federal High Court has no jurisdiction to entertain the action. He concluded that the hullabaloo about the action being a land matter pays no adequate regard to the interpretation of section 40 of the 1979 Constitution and sections 43 and 44 of the 1999 Constitution that manifested that the Federal High Court and no other court of first instance has jurisdiction to entertain this action.
The contention by learned Counsel for the applicant/respondent that the jurisdiction of the State High Court to entertain an action which is seeking declaration of title to land and injunction restraining the defendants from further interference with the property is ousted by sub-sections 230(1)(r) and (s) of the Constitution of the Federal Republic of Nigeria, 1979, is novel, erroneous and woolly as one wrapped up in a misreading of the matters over which jurisdiction is conferred on the Federal High Court by the provisions of those two sub-sections, a grey area of the law that calls for two observations.
Firstly, sub-section 230(1)(r) is made subject to the provision of Constitution before the court can embark on the operation and interpretation of the Constitution. The phrase ‘subject to the provisions of this Constitution’ is an expression of limitation implying that any other provisions of the Constitution shall govern, control and prevail over sub-section 230(1)(r) thereof: see Agip (Nig.) Ltd. v. A.-G., Lagos State, (1977) 11 NSCC. 442, 451-452; Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (pt 91) 622; and Okeji v. Anyaso (2000) 2 NWLR (Pt. 643) 1,32. Section 236 of Constitution of 1979, was not suspended or modified when the amendment to section 230 thereto was made by Decree No. 107 of 1993. The section is part of the provisions of the Constitution and, therefore, governs the provision of sub-section 230(1)(r).
Therefore, if the provisions of section 236 has been interpreted by the Supreme Court and this court in a number of cases for which see Salati v. Shehu (1986) 1 NWLR (Pt. 15) 198, Ebiteh v. Obiki (1992) 5 NWLR (Pt. 243) 599; and Oyeniran v. Egbetola (1997) 5 NWLR (Pt. 504) 122, on the jurisdiction of the High Court in land matters under the Land Use Act. I am at a loss to understand why it was considered necessary for the learned trial Judge to embark upon a re-interpretation of section 236 of the Constitution in the idle pastime of interpreting the provision of sub-section 230(1)(r) thereof.
The laxity does not show an acquaintance with the principle of stare decisis as enunciated in Clement v. Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39; (1989) 20 NSCC (Pt. 11) 234, 240-241; and Adesokan v. Adetunji (1994) 5 NWLR (Pt. 346) 540, 561-562 and 577-578, with the warning by the Supreme Court in University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) 143; (1985) 16 NSCC (Pt. 1) 98106, that;
“Where a higher court in the hierarchy of courts has construed a rule of court which is in pari materia with the rules of a lower court that decision of a higher court is binding on the lower court insofar as the meaning of that rule of court is concerned.”
That in macrocosm is the essence of the principle of stare decisis and what applies to the rules of court also applies to the earlier case are the same as the facts of the case for which the earlier decision of a higher court where the facts of the earlier decision is offered as a precedent. The importance and consequences of a breach of the rule were examined by this court in Onyemaizu v. Ojiako (2000) 6 NWLR (Pt. 659) 25, 40-41. The Supreme Court having interpreted the provision of section 236 of the Constitution on the jurisdiction of the High Court in land matters, under the Land Use Act in number of cases after the amendment of section 230 of the Constitution of which mention may be made of Sadikwu v. Dalori (supra) and Oyeniran v. Egbetola (supra), it is sheer effontery and vacuous bravado by the learned trial Judge to have embarked on a reinterpretation of that section. It is presumptuous and a mindless efficiency parade.
Secondly, sub-section 230(1)(s) relates to ‘any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies. The scope of the provision appears to me to be explicit applying the rule of construction of statute. Before the provision can be invoked it must be established that the action for which a declaration is sought or which the court is invited to restrain is related to any executive or administrative action or decision of the government or its agency.
The words ‘executive’ and ‘administrative’ in that provision do not present any difficulty. But the word ‘decision’ in the context is not very clear and must, therefore, be construed noscitur a sociis; that is to say, its meaning is to be determined by the words immediately surrounding it: see Barclays Bank DCO v. Adigun (1961) All NLR 536,538. Thus, construed the decision to which the subsection applies to give the Federal High Court jurisdiction and correspondingly excluding jurisdiction of the State High Court must be executive or administrative action of the government or its agency.
Example of such an action is the termination of the contract of a contractor employed as a consultant on a Federal Project decided by this court in Ayeni v. University of Ilorin (2000) 2 NWLR (Pt. 644) 290. This court dismissed the appeal against the decision of State High Court declining jurisdiction to entertain the action on the ground that the action was one touching on the administration and management of an agency of Federal Government in respect of which only the Federal High Court is vested with jurisdiction.
The decision is a far cry from the case on appeal where the applicant/respondent sought and obtained a declaration of title to land and an injunction against the appellants over a land for an act which is neither executive nor administrative; and judging from the reliefs sought by the applicant/respondent in an action in which no jurisdiction was conferred on the Federal High Court by the controlling legislation, i.e. section 39 or 41 of the Land Use Act. In this regard, I find apposite and instructive the sober reflection of my learned brother, Akpabio, JCA, on a similar point in Omosonwan v. Chiedozie (1998) 5 NWLR (Pt. 566) 477, where the learned Justice said:
“…I have to say that I have myself gone through the whole section 230 (1)(a-s) of Decree 107 of 1993 and can see no blanket provision that says that any suit against the Federal Government regardless of the subject matter of the suit must be justiciable or entertained in the Federal High Court and no where else. Only a few selected topics are made the exclusive preserve of the Federal High Court”.
On the two points examined above, about the extent of the jurisdiction conferred on the Federal High Court by sub-sections 230(1)(r) and (s) of the Constitution of the Federal Republic of Nigeria, 1979, sections 39 and 41 of the Land Use Act, have denoted the courts that are vested with jurisdiction to entertain actions in land matters which do not include the Federal High court. This point has been settled beyond any peradventure by the Supreme Court in its decision in Adisa v. Oyinwola in which the courts established by the States enumerated in sections 39 and 41 of the Land Use Act, which do not include the Federal High Court are the only courts in Nigeria vested with original jurisdiction over land matters. The point is well captured, at page 217 of the law report, where the court elaborated that:
“…while a State High Court has exclusive jurisdiction over lands in urban area by virtue of section 39(1) of the Land Use Act, it shares concurrent jurisdiction with the customary or other court of equivalent jurisdiction by virtue both of its entrenched unlimited jurisdiction under section 236(1) of the Constitution and the jurisdiction conferred on the said customary court or other court by section 41 of the Land Use Act”.
It is clear from the foregoing exposition of the jurisdiction of the courts in land matters as substantiated by the preceding passage from the leading authority on the matter that the Federal High Court is not one of the courts vested with jurisdiction by sections 39 and 41 of the Land Use Act to entertain action over land matters not being a State High Court or an area or Customary Court or court of equivalent cadre. Thus, when the trial court entertained the applicant/respondent’s action seeking declaration of title to land and injunction against the appellants and 3 others it acted without jurisdiction to the consequences of which I will return later. It is immaterial that the 2nd appellant and the 2 other nominal defendants are Federal Government agencies and the 1st appellant the alter ego of the 2nd. That will be enough to dispose of the first appeal. However, before I conclude, I must consider, albeit briefly, the second arm of issue one on the question of whether enforcement of fundamental right is the proper procedure to bring the action on appeal that sought reliefs for declaration of title to land and injunction.
The issue was canvassed by learned Counsel on both sides. In view of the conclusion which I have reached on the first appeal, it will be enough to state law on the matter and its application to the facts of this case without dabbling into the arguments of the learned Counsel on the matter.
Fundamental rights under our Constitution are for the purpose of their observance and enforcement divided into two categories, viz, (a) the procedural variant made up of those which are dependent that must be observed whenever the occasion for their observance arises, e.g. section 33 on the right to fair hearing and (b) the self directing variety consisting of the type that can be initiated as a substantive action; see Nemi v. The State (1994) 9 NWLR (Pt. 366) 1, (1994) 10 SCNJ 1, 20. The first category do not create a distinct cause of action and have been described as a protective secondary right, that must depend on the breach of a primary right such that “there ought to be a primary wrong arising from the breach of a primary right before the party wronged can apply to the court for a relief on the ground that, in the determination of his civil rights and obligations he was denied a fair hearing”: see Tukur v. Government of Gongola State (supra), at page 564.
As regards the rights of the second type that can be enforced direct by a substantive action, the principle is that where the main or principal claim in an action is the enforcement of a fundamental right it is competent to try the action under the Fundamental Rights (Enforcement Procedure) Rules. Where, however, enforcement of the fundamental rights is subsidiary, ancillary or incidental to the main claim, the action must be instituted by writ of summons as prescribed by the rules of the trial court: see Tukur v. Government of Taraba State (1997) 6 SCNJ 81,108 & 114-115; (1997) 6 NWLR (Pt. 510) 549 and Egbuonu v. Bornu Radio Television Corporation (1997) 12 SCNJ 99,108-109, (1997) 12 NWLR (Pt. 531) 29. The former case is a rehearsal of the earlier case, Tukur v. Government of Gongola State (supra), in each of which the main complaint by the appellant was the challenge of his deposition as the Emir of Muri to which the breach of his fundamental rights was incidental. In the latter case, the principal complaint was the dismissal of the appellant from the respondent’s employment from which the allegation of breach of fundamental right of fair hearing arose. In both cases, it was held that as the wrongs of improper deposition and dismissal from employment are not among the rights made enforceable by section 42 of the Constitution it was improper to initiate the actions for redress under the Fundamental Rights (Enforcement Procedure) Rules made there under and in each case it was held that the trial court was without jurisdiction to entertain the action.
A corollary of the fundamental rights enforcement procedure is the limitation of its scope being a method of initiating action designed for summary mode of contest which renders it unsuitable for contentious action that is laden with controversy. The reliefs sought by the applicant/respondent is, in substance, declaration of title to a piece of land and injunction against the defendants/appellants which, on principle, raised the issue of title to the land in dispute which by its nature is steep in controversy. For a contentious action ‘notice of motion’ or ‘originating summons’, the two modes of initiating an action for enforcement of fundamental rights after leave for enforcement has been granted, has been found to be unsuitable. See National Bank of Nigeria Ltd. v. Lady Ayodele Alakija (1978) 2 LRN 78, 86, for an examination of the drawback of conducting a potentially contentious action by an originating summons that has the same limited scope as a motion on notice. See also Ademiluyi v. ACB Ltd. (1964) WNLR 41, 45; Doherty v. Doherty (1968) NMLR 241,242 and Alegbe v. Oloyo (1983) 2 SCNLR 35; (1983) 7 SC 85, 214-217 & 162-164.
The conclusion reached from the applicable principles of law is that the primary wrong for which the applicant/ respondent sought a redress, is declaration of title to land, which is not one of the rights that can be enforced by Fundamental Rights (Enforcement Procedure) Rules that is applicable only where breach of fundamental rights is the primary wrong. The upshot is that the applicant/respondent’s action before the court below is incompetent and impacts upon the authority of the court below which eo ipso, had no jurisdiction to entertain the action: see Ejike v. Ifeadi (1998) 8 NWLR (Pt. 561) 323; (1998) 6 SCNJ 87, 94-95 & 100-101; and Kalu v. The State (1998) 11-12 SCNJ 1, (1998) 13 NWLR (Pt. 583) 531.
The result of the first issue which must be resolved against the applicant/respondent on both limbs of the argument canvassed is that, on the one hand, the learned trial Judge entertained the action when he had no jurisdiction to do so and, on the other hand the applicant/respondent initiated his action under the enforcement of Fundamental Rights procedure for a redress for wrongs that are not amenable to that procedure and rendered the action incompetent and the learned trial Judge was without jurisdiction to entertain it. Jurisdiction is fundamental as the life-line of an action and the font et origo of the authority of the court that has been described by the Supreme Court in Osadebay v. A.-G., Bendel State (1991) 1NWLR (Pt. 169) 525, 571, 572, in a strain that depicts it as indispensable to a decision. The court, per Belgore, JSC, said:
“Court are creature of statute based on the Constitution. Their jurisdictions are based on statutes and no court assumes jurisdiction without enabling statute…” “when there is no jurisdiction the court will act ultra vires should it venture to assume one; for a court embarking on the hearing of a matter not within its jurisdiction is exercising in moot…. Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria, (1976) 6 SC 175.”
For elaboration of that principle see also Edu v. Odan Community (1980) 8-11 SC 103, 124; Rabiu v. The State (1980) 8- 11 SC 130; Mandara v. A.-G., Federation (1984) 1 SCNLR 311, 331; Gombe v. PW Nigeria Ltd. (1995) 6 NWLR (Pt. 402) 402, (1995)7 SCNJ 19,36-37; National Bank of Nigeria Ltd. v. Weide & Co. Nigeria Ltd. (1996) 8 NWLR (Pt. 465) 150, (1996) 9-10 SCNJ 147, 159; and Ejike v. Ifeadi (1998) 8 NWLR (Pt. 561) 323, (1998) 6 SCNJ 87,101. The upshot of acting without jurisdiction has been captured graphically by the memorable epigram of Biarmain, JSC in the earlier decision of the Supreme Court in Madukolu v. Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR 587, 595 which forcefully articulated the grave consequences thus:
“any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication”.
And on the effect of a decision that is a nullity Lord Denning summed it up eloquently in the decision of privy council in Macfoy v. U.A.C. Ltd. (1962) AC 152, 160 in the following colourful metaphor:
“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad… And every proceeding which is founded on it, is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse”.
The dictum has been cited with approval by the Supreme Court in a number of cases; see, in particular, Skenconsult Nigeria Ltd. v. Ukey (1981) 1 SC 6, 7 & 9. In the result, the first appeal succeeds without further ado. The decision of Ajakaiye, J. of the Enugu Judicial Division of the Federal High Court, rendered on 27/10/99, is without jurisdiction. It is, therefore, null and void and of no effect.
The conclusion which I have reached on the question of jurisdiction renders it unnecessary for me to examine issue two in respect of the first appeal canvassing whether the learned trial Judge was right to have decided the case on conflicting affidavit evidence without resolving the conflicts. It is an issue that goes into the merit of the appeal which this court cannot wade into because of the lack of capacity by the trial court to entertain the action as a review of a void judgment is itself void: see Ejike v. Ifeadi (supra), at page 101.
Before I examine the second appeal, I pause to observe in parenthesis the frenzy of doctrinal debate encountered lately in the Law Reports over the scope of the additional jurisdiction conferred on the Federal High Court by Decree No. 107 of 1993. Following the extension of the jurisdiction of the Federal High Court, there appears to be an undercurrent of move by a microscopic number of litigants asking for transfer of their cases from the State High Courts to the Federal High Court for reasons which are latent but which, more often than not, cannot be divorced from some petty anticipated advantages. Coupled with that are instances where counsel for parties for purely technical advantage raised objection to jurisdiction of the State High Courts as a ploy to manoeuvre out of an unfavourable situation.
But more worrisome is the court’s reaction to such stratagem. It is discernible from the drift of argument on such matters in the Federal High Court enthusiasm that is brought to bear on the scheming by a section of the bench of that court who enamoured by the epithet ‘unlimited’ appended to the jurisdiction of the State High Court Judges saw the trend as an opportunity to extend the frontier of the jurisdiction of the Federal High Court so as to be on a part with the State High Court Judges as far as judicial powers are concerned. Such a group are prone to be receptive to any argument that leans towards that goal and would stop at nothing to bend the law by a pedantic interpretation of the new provisions of section 230 of the Constitution to advance the desired end.
The ‘judicial renaissance for equation of jurisdiction with the State High Court’ as the trend may be described for want of a better expression is unhealthy and may be counter-productive; from the point of view of the litigants who in the long run may be worse off in the ensuing doctrinal tussles over jurisdiction about which they know very little. From the stand point of infrastructure and facilities at the disposal of the Federal Government the tendency is shortsighted.
As noted in the judgment of this court in NERDC v. Gonze (Nigeria) Ltd. (2000) 9 NWLR (Pt. 673) 532, 542-543, the confusion that marked the extension of the jurisdiction of the Federal High Court between 1991 and 1993, is an eye-opener and calls for caution by the protagonists of jurisdictional parity with the State High Court.
The twists and turns in the present appeal which is an exemplar of the disarray which the acquisitive tendency may create impel me to recall my stand in that judgment, at page 545, where I cautioned that:
“…any decision on the interpretation of section 230(1)(q) of the Constitution of the Federal Republic of Nigeria, 1979, (re-enacted as section 251 (1)(p) of the 1999 Constitution) on the jurisdiction of the Federal High Court will do well to take a cue from the approach of the Supreme Court on Federal and State judicial powers in Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296. Pragmatic course rather than toeing a rigid line along ‘legislative autarky’ is a better option. As I noted recently in Enugwu v. Okeji (2000) 3 NWLR (Pt. 650) 620, 641-642, stratification of the jurisdiction of the High courts within the legal system of this country along the legislative powers of the Federal and State Governments without making adequate allowance for the facilities of the Federal Government on the ground may be a short-sighted approach that may in the long run prove to be counter-productive”.
The home truth in that dictum would, I hope, moderate the ambition of the activist genres of the Federal High Court bench, who I would stop at nothing to grab jurisdiction for themselves where such an exercise turns on the interpretation of the amendment to section 230 of the Constitution that is seen as the fountain head of unlimited jurisdiction for that court by the protagonists of jurisdictional parity with the State High Court.
Therefore, I agree with the view of my learned brother, Akpabio, JCA. In Omosonwan v. Chiedozie supra quoted above, that subsection 230(1) of the Constitution does not contain a blanket provision that any suit against the Federal Government or any of her agencies must be heard by only the Federal High Court regardless of the subject matter. This calls to mind a similar caution to the Federal High Court in Mandara v. A.-G., Federation (supra), at page 331, over the inordinate disposition of that court to assume jurisdiction over any matter on the slightest pretext as long as such matter is embossed with the logo of the Federal Government or of any of her agencies It cannot be over-emphasised the axiom that the anatomy of the Federal High Court like that of an individual should not be made to bite off more than it can chew for the good of its digestive system.
However that may be, the second appeal is a pretty kettle of fish. It is a complaint against execution of the injunctive order made for demolition of the fence erected by the 2nd appellant between her building and the applicant/respondent’s building pursuant to the judgment that has been declared to be a nullity in the first appeal.
That raises the question whether after the judgment giving rise to the order has been nullified is it open to this court to go into the merit of the execution of the order?
I think that the dilemma is answered by the legal effect of a void action resulting from lack of jurisdiction to entertain the action by the trial court. The declaration that the action before the learned Judge is incompetent for want of jurisdiction bars this court from going into the merit of the invalid action, a proposition which is supported by Nalsa & Team associates v. NNPC (1991) 8 NWLR (Pt. 212) 6, (1991) 11 SCNJ 51, 62; Road Transport Employers Association of Nigeria v. National Union of Road Transport Workers (1992) 2 NWLR (Pt. 224) 381, (1992) 2 SCNJ (Pt. 11) 251, 260; Ezenwosu v. Ngonadi (1992) 3 NWLR (Pt. 228) 154; (1992) 3 SCNJ 59,67; and Ejike v. Ifeadi (supra) at page 101. If it is not competent for the court to examine the merit of the first appeal, which made the order the improper execution of which is being challenged in the second appeal (as it is made explicit by issue five reproduced above) it will be illogical and paradoxical to examine the second appeal as that will amount to doing indirectly what one has been expressly barred from doing. The law frowns at sophistry and it will be an affront to the administration of justice to exhibit a tendency that manifests a double-think on matters of principle. Besides, the effect of the first appeal being void is that every proceeding which is founded on it is also incurably bad; that robs the second appeal which is an off-shoot of the first its substratum and has no base to stand upon.
I have considered with a good degree of anxiety the appellant’s grievances over the demolition of the second appellant’s fence by the applicant/respondent in a manner alleged to be in contravention of the order of the trial court with this court not being able to look into the complaint. But as the result of the first appeal is that there has been no decision on the applicant/respondent’s action the equation is well balanced by the fact that the applicant’s grouses also remain unresolved leaving either side to recast his option and choose whatever measure he may consider appropriate to redress the alleged wrongs.
However that may be, the second appeal being a derivative of the first appeal it is smeared by the bug that infected the first appeal which makes their fate to be inseparable. In consequence, I also hold the second appeal to be incompetent as originating from an order that was made without jurisdiction.
In the result, the first appeal which is from a decision that was rendered without jurisdiction succeeds and it is allowed. The applicant/respondent’s action having been filed before a court that had no jurisdiction to entertain it the action ought to be struck out. Therefore, I set-aside the ruling of the learned trial Judge delivered on 27/10/99 and I substitute there for an order striking out the applicant/respondent’s action as incompetent. The second appeal being against the refusal by the court below to reverse the wrongful execution of the order it made pursuant to the judgment rendered without jurisdiction it is incompetent and it is also struck out. I award N4,000 costs against the applicant respondent.
Other Citations: (2002)LCN/1064(CA)
