Okoroma & Anor V. Chief Christian Uba & Ors (1998)
LawGlobal-Hub Lead Judgment Report
UBAEZONU, J.C.A.
The 1st respondent Chief Christian Uba, commenced a proceeding under the Fundamental Rights (Enforcement Procedure) Rules 1979 against the appellants, Dr. Okoroma and Mrs. Okoroma at the Federal High Court Enugu. The other respondents are police officers who were joined in the suit. The reliefs sought against the respondents were:
“(i) Declaration that the applicant’s right of way or easement and profits unto or over the open space adjoining: plot H3 New Haven East Layout, Enugu is appurtenant to the properly right in respect of the premises situate and known as Plot H3 New Haven East Layout. Enugu
(ii) Declaration that the conduct of the respondents in estopping and/or preventing the applicant from reaping or enjoying profits appurtenant to the said plot H3 and ingress and egress over and unto the open space adjoining the said plot H3 constitutes violation of sections 38 and 40 of the Constitution of Federal Republic of Nigeria, 1979.
(iii) N1,000,000,00 (one million naira) from 1st and 2nd respondents being special and exemplary and/or aggravated damages for infringement of applicant’s fundamental rights.
(iv) Perpetual injunction restraining the respondents from interfering in any manner whatsoever with the applicant’s ingress and egress and peaceable use and enjoyment of easement or right of way and profits over and in respect of plot H3 New Haven East Layout, Enugu.”
By a motion ex-parte for leave to apply to enforce his fundamental human rights under the Fundamental Rights (Enforcement Procedure) Rules 1979 the 1st respondent applied for and obtained the said leave. In addition, the 1st respondent also obtained an order for:
“(b) an interim injunction restraining the respondents, their servants, agents, privies or workmen from interfering in any manner whatsoever with the applicant’s ingress and egress and peaceable use and enjoyment of easement and profits appurtenant to plot H3 New Haven East Layout, Enugu (verged red in Plan No. DRG E/79) pending the determination of the substantive application.
(c) An interim order staying all matters by the respondents, their servants, agents, privies or workmen connected with the applicant’s peaceable use and enjoyment of profits and of right of way or easement appurtenant to Plot H3 New Haven East Layout, Enugu pending the determination of the substantive application.”
The ex-parte order was apparently not served on the appellants but they obtained a copy of the order. The appellants thereupon filed a motion on notice to set aside the ex-parte order and to strike out the suit on the ground that the Federal High Court has no jurisdiction to entertain the suit since the suit was essentially a land dispute between two private individuals. The motion was heard. On the 12th March, 1997 the court, presided over by Kassim J” delivered its ruling and held that it had the jurisdiction. Against this ruling, the appellants have come to this court on appeal.
In view of the 1st respondent’s contention that some of the issues formulated by the appellants do not flow from the grounds of appeal, I shall set out hereunder the grounds of appeal without the particulars. They are:
“(i) GROUND ONE – ERROR IN LAW
The learned trial Judge erred in law when he held that the Federal High Court, has jurisdiction to deal with land matters between private individuals.
GROUND TWO – ERROR IN LAW
The learned trial Judge erred in law when he held that the subject matter of the suit was not land hut is “the right of user of a public or open space by the owners of the adjoining plots of land.”
GROUND THREE – ERROR IN LAW
The learned trial Judge erred in law when he held as follows:
“Again, from the above reproduced paragraphs it becomes clearer than before that what is in controversy in this case is the right of user of a public or open space by the owners of the adjoining plots of land. The fact that the 1st respondent/applicant constructed the access road at his own expenses. does not, in any view, alter the legal position.
GROUND FOUR – ERROR IN LAW
The learned trial Judge erred in law when he held that there is no misrepresentation/suppression of material facts by the applicant/respondent to warrant the discharge or setting aside of the interim order of the court.”
In accordance with the rules of this court, the appellants filed a brief and therein formulated three issues for determination thus:
(a) Whether the Federal High Court has jurisdiction to deal with land dispute;
(b) Whether the subject matter of the dispute between the panics in this suit is land:
(c) Whether the learned trial Judge decided the main case by his decision in an interlocutory application that there is no misrepresentation/suppression of material facts by the applicant/respondent.
Arguing the first issue of the appellants, learned counsel submits that the respondent in his ex-parte-motion for leave to commence the proceeding under the Fundamental Rights (Enforcement Procedure) Rules made out a case of a land dispute between the appellants and himself. This is clearly borne out by the reliefs sought as well as the affidavit verifying the facts in support of the application. He refers also to a portion of the ruling of the lower court which bears out that the dispute was land or the right to use the land appurtenant to another land. It is submitted that where the main claim is not within the jurisdiction of the court, the court cannot assume jurisdiction because of the accessory claim attached to the main claim. He refers to Tukur v. Government of Gongola State (1989) 4 NWLR (pt.117) 517.
Counsel argued that the police officers i.e. 2nd – 6th respondents are not agencies of the Federal Government hut agents or the said Federal Government.
He refers to University of Abuja v. Ologe (1996) 4 NWLR (Pt. 445) 706 at 717 – 718.
The 2nd – 6th respondents, counsel submits, were sued in their personal capacities – See Military Administrator of Kwara State v. Lafiaji (1998) 7 NWLR (Pt. 557) 202 at 231, Counsel also refers to Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387.
On issue No.2, that is whether the subject matter of the dispute between the parties in this suit is land – it is submitted that the court cannot deal with the issue of police harassment without dealing with the issue or land over whid1 the respondent claims that he has a right of casement. “Easement”, counsel submits.
“means a right annexed to land…” The respondent not only claims easement over the land and profit a pendre hut also ownership of the said orchard – see paragraphs 12. 13, 21 and 23 of the affidavit verifying the facts in support of the ex-parte application. All these show that what was in issue was the ownership of land, right of easement and right of profit a pendre.
It is further submitted that what is now called an “open space” was a gully given solely to the 1st appellant who constructed a road on it, installed gates at the entrance and planted an orchard on it all at great cost. The 1st respondent in his counter-affidavit denied knocking down any gate, electric poles, security lamp, and fence wall. After visiting the locus in quo the learned trial judge refused to order the re-installation of the gates on the ground that such an order would amount to determining the applicants’ case without giving them a hearing. The visit of the Judge to the focus ill quo to see the damages done on the land by the 1st respondent, counsel submits, is a proof positive that what was in issue was a land dispute.
Arguing the issue No.3 counsel submits that the ex-parte order made by the learned trial judge was obtained by misrepresentation of facts. Having held that he would not reconcile the conflicting affidavits at that interlocutory stage the learned trial judge surprisingly somersaulted and held that there was no misrepresentation or suppression of facts as to warrant the discharge of the ex-parte order.
By so deciding, it is submitted that the learned trial judge has pre-judged and disposed of one of the main issues in the substantive case.
Counsel refers to Busari v. Oseni (1992) 4 NWLR (Pt. 237) 557 at 589: Ojukwu v. Military Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39 at 45.
On being served with the appellants’ brief, the 1st respondent filed a brief of argument and therein formulated the following two issues for determination:
“(a) Whether the subject matter of the dispute between the parties is land dispute and outside the jurisdiction of the Federal High Court.
(b) Whether there was misrepresentation/suppression of material facts by the respondent to warrant discharge of the ex-parte order.”
Arguing his first issue, learned counsel for the 1st respondent complained that the appellants’ 1st issue predicated on ground 1 of the grounds of appeal docs not arise from the ruling of the court below. Counsel attacked the 1st ground of appeal as a “gross misstatement of the ruling of the court helm,” as the court did not hold that it had jurisdiction to deal with land matters between private individuals as posited in the ground of appeal. He urges the court to strike out the appellants’ issue No.
(a). Learned counsel submits that it is the relief claimed that determines the jurisdiction of the court. He refers to Jimoh Akinfolarin v. Solomon Akinola (1994) SCNJ 30 (1994) 3 NWLR (Pt. 335) 659. In the instant case, the relief which limits and delineates the dispute between the parties is as set out in paragraph 2 of the statement accompanying the application for the enforcement of fundamental rights. The said statement, counsel submits, does not disclose any land dispute.
The 1st respondent argues that the appellants have employed the coercive powers or the State by using 2nd – 6th respondents to deny the 1st respondent a right of way or easement over an open space or thoroughfare and enjoyment of profits therefrom. He submits that at the time leave was granted for the enforcement of the fundamental rights, the use of the access road was continually being blocked with tree trunks and block rubbles by the appellants. Through the direction of 2nd -6th respondents, the reaping of the fruits of the orchard was made exclusive to the appellants. A permanent barricade of the access road was being put in place. All this, counsel submits, amounts to a breach of the fundamental rights of the 1st respondent. It is true that no arrest was made by the police officers yet the mere likelihood of threat of invasion of his right, is sufficient to support an action for the enforcement of one’s fundamental right – see Uzuokwu v. Ezeonu (1991) 6 NWLR (pt.200) 708; Ezeadukwa v. Maduka (1997) 8 NWLR (pt. 518) 625.
Counsel submits that flowing from the definition of easement, it enures to all occupants or owners of adjoining land over the land of another. It is a right over a land and not all the land itself. It is a right or interest over immovable property protected under section 40 of the Constitution. A violation of it entitles the interest holder to the enforcement of the right under section 42 of the Constitution. It is argued that the relief No. (ii) seeks a declaration against the conduct of the appellants and 2nd – 6th respondents in restraint of the 1st respondent reaping the fruits in the orchard and other coercive conduct of the appellants and 2nd – 6th respondents. The 2nd – 6th respondents being agents or agencies of the Federal Government are liable to be sued in the Federal High Court pursuant to section 230 (i) (s) of Decree No. 107 of 1993 – see University of Abuja v. Ologe (supra); Ali v. C. B. N. (1997) 4 NWLR (Pt. 498) 192.
Arguing issue (b) learned counsel contends that the appellants; issue (b) does not arise from any of the grounds of appeal and urges that the issue be struck out.
The 1st respondent however formulated his issue (b) as corollary to ground 4 of the grounds of appeal.
Counsel concedes that an ex-parte order may be discharged on ground of suppression of material facts – see Okechukwu v. Okechukwu (1989) 3 NWLR (Pt.108) 234; Nwakonobi v. Udeorah (1991) 9 NWLR (Pt. 213) 85; Halsbury’s Laws of England (3rd Ed.) Vol. 21 page 437 paragraph 927. The appellants have however not shown that there was any misrepresentation or suppression of facts in obtaining the ex-parte order.
On being served with the 1st respondent’s brief, the appellants filed u reply brief in which they canvassed the contention of the respondent that some of the issues of the appellants do not flow from the grounds of appeal and that no issue was formulated on grounds 2 and 3.
Before I go into the main theme of this appeal, let me deal briefly with matters raised by the 1st respondent in his brier which is in the form of a preliminary objection. The first complaint of the respondent is that issues (a) and (c) of the appellants do not now from the grounds of appeal. Nothing can be farther than the truth. I have already set out the grounds of appeal (without the particulars) in this appeal as well as issues (a) and (c) of the appellants. I am unable to see how issues (a) and (c)do not flow from grounds 1 and 4 of the grounds of appeal. A comparison of issues (a) and (c) with grounds 1 and 4 shows clearly that the said issues were predicated on and flows directly from the said grounds of appeal.
The respondent also contends that grounds 2 and 3 of the grounds of appeal are deemed abandoned because no issues were formulated on them. This contention, again, is not correct. Issue (b) is based on those grounds of appeal. In any case, if no issue is formulated on a particular ground of appeal, what is the 1st respondent bothering himself about the ground of appeal. Appeals in this court are fought on the issues. A ground of appeal may become relevant only where a particular issue is not based on any ground or appeal or where a ground of appeal is not formulated as required by law. Where an issue is not predicated on any of the grounds or appeal, the issue may be struck out as incompetent.I shall now deal with the substance of this appeal. This appeal, once again, raises the vexed question of the actual and exact extent the jurisdiction of the Federal Revenue Court rechristened the Federal High Court by section 230 (2) of the 1979 Constitution. I however find consolation in the fact that “in this rather turbulent jurisdictional sea …. we are sailing without a compass on an uncharted sea”. The jurisdiction of the Federal High Court has been the subject of many decisions of both the Court of Appeal and the Supreme Court: and object of some or its most far-reaching pronouncements. This judgment will therefore be one or such several decisions.
There is one important issue for determination in this appeal. The one issue may be two pronged. The issue is whether the suit filed in the Federal High Court is a land matter and as such, whether the lower court has jurisdiction to entertain the suit. Put simply, has the Federal High Court the jurisdiction to entertain the suit which is the subject matter of this appellants? This poser encompasses all the issues in this matter whether by the appellants or respondents. This issue is one of jurisdiction.
The only other matter is whether there was misrepresentation or suppression of material facts for which the ex-parte order ought to he discharged.
My finding on the issue of jurisdiction will render this other issue irrelevant. But first, let me deal with the main issue which relates to the jurisdiction of the Federal High Court to deal with the subject matter of the suit.
An issue of jurisdiction in our courts is fundamental. It can not be assumed.
Where a court exercises jurisdiction on any matter it must be able to show, if challenged, from what law or statute it derives its jurisdiction. It may be necessary here to trace in outline the historical development of the jurisdiction or the Federal High Court. When the court was created in 1973 it was known as the Federal Revenue Court. Its jurisdiction was prescribed by Section 7 of the Federal Revenue Court Decree No. 13 of 1973. Its jurisdiction was mainly on the revenue and other like matters of the Federal Government. When the 1979 Constitution of the Federal Republic of Nigeria was promulgated, the creation and existence of the Federal High Court was entrenched in section 228 of the Constitution. Section 230 of the Constitution prescribes jurisdiction of the court. Section 230 (2) changed its name to Federal High Court. Then came the Constitution (Suspension and Modification) Decree No. 107 of 1993. The Second Schedule of the Decree extensively modified section 230 (1) of the Constitution and in effect modified the jurisdiction or the Federal High Court. The modification which is relevant for our purposes in this appeal is the modification to the jurisdiction or the court as effected by section 230 (l) (q) (r) and (s) of the Decree. I shall return to this in due course.
Now, what is the dispute between the parties in this suit at the Federal High Court? As rightly pointed out by the 1st respondent in his brief, it is the “relief claimed in court … that determines the jurisdiction of the court to adjudicate.” See Akinfolarin v. Akinola (1994) 3 NWLR (pt.335) 659 at 674. See also Azaka Izeikwe & Ors v. Nnadozie 14 WACA 362 at 363; Adeyemi v. Opeyori (1976) 9 – 10 S.C. 31; Tukur v. Governor of Gongola State (1989) 4 NWLR (Pt.117) 517. I may add that at times, the nature of the defence put up by the defence may affect the issue of jurisdiction. Let me, for the moment confine myself to the relief claimed by the 1st respondent. He claims a declaration that his “right of way” or easement and “profits unto and over” a piece of land which he described as an “open space” which adjoins “plot H3 New Haven East Layout Enugu is appurtenant to the property right in respect of the premises situate at and known as Plot H3 New Haven East Layout Enugu” occupied by him. In the first place, this “right of way” which he seeks to enforce is a right of way on land not in the air. The “open space” over which he claims the right or way and profits is, from the facts of the case, an open space on land not in the air. Plot H3 New Haven East Layout Enugu which the open space adjoins is a plot of land. H3 further alleges in the first arm of the relief claimed that all these, that is, the right of way, or casement and profits over the open space that adjoins plot H3, are appurtenant to the property right in respect or the premises situate at and known as Plot H3 New Haven Layout Enugu. It seems to me that everything claimed in his relief (1) smacks of land. I have no doubt in my mind that the claim on relief (i) is land law.
As regards the relief claimed on 2 (ii) – in his statement accompanying the exparte motion the applicant/respondent who is the 1st respondent complains that the conduct of the appellants in preventing the applicant/respondent from “reaping or enjoying profits appurtenant to the said plot H3” constitutes a violation of his right.
He also complains that the appellants prevent his “ingress and egress over and unto the open space adjoining the said plot H3″ and that such an act constitutes a violation of his rights. In his affidavit verifying the facts of this case, the applicant/respondent deposed as follows:
(i) That he was the leasehold owner, assignee and occupier of plot H3 New Haven East Layout Enugu by virtue of a deed of assignment while the appellants were the occupiers of plot H19 in the same Layout – see paragraphs 2 and 3 of his affidavit.
(ii) He admits that the appellants’ plot H19 was part of the open space – see paragraph 3A of the affidavit.
(iii) That an orchard or his predecessor devolved unto him and his solicitor informed him that his enjoyment of the fruits of the orchard constitutes profit appurtenant to his said plot – see paragraphs 12 and 14 of the affidavit.
(iv) That the appellants forcibly broke and entered the said orchard and cut and fell the crops and fruits therein – see paragraph 15 of the affidavit.
(v) That when he challenged the 2nd appellant, she claimed that the 1st appellant (her husband) bought the entire land and owns everything on it, – see paragraph 16 of the affidavit.
(vi) That the 2nd appellant justified their trespass and malicious damage to the orchard – see paragraph 17.
(vii) That the respondents were barricading the entrance to his compound with logs of wood and tree trunks – see paragraphs 18 and 19.
(viii) That the respondents are digging trenches preparatory to erecting concrete barricade – see paragraph 22.
(ix) That unless the appellants are restrained they will permanently cordon-off his right of way and prevent his enjoyment of profits appurtenant to his said plot – see paragraph 23.
(x) The respondents have taken the law into their hands – see paragraph
The 1st respondent also claims damages and injunction.
I have taken the trouble to set out some of the relevant paragraphs of the affidavit to show that the dispute between the appellants and the 1st respondent was land. The right of way claimed by the 1st respondent against the appellants was over land. The easement was over land. The profits claimed are in respect or an orchard situate on land. The obstruction of ingress and egress complained of was in respect of land. The trespass complained of against the appellants was trespass to land. The destruction of crops and fruits in the orchard was an act of trespass to land. As against all the above, the 2nd appellant in an affidavit in support of the motion to discharge the ex-pane order put the 1st respondent’s claims in issue. It is clear from the facts of this case that the appellants and the 1st respondent obtained their original title to their respective plots from the Iji Nike Community. See paragraph 4 of the 1st respondent’s affidavit in support of his motion ex-parte where he deposed as follows:
‘”4. That my predecessor-in-title, Mr. Augustine Alaribe, and whom (sic) assigned the said plot to me in turn obtained title from original landowners, Nike Community on 31st December, 1973.”
See also Exh. AA6 attached to the 2nd appellant’s affidavit page 45 – 50 of the record. It was the Nike Community that granted plot H3 to Mr. Augustine Alaribe who granted the said plot to the 1st respondent. In this respect the letter of H.R.H. Igwe Nnaji to the appellants is very pertinent. The letter is at page 35 of the record. In view however of the importance of this letter to the dispute between the parties.
I shall set out its contents here verbatim et literatem. He wrote as follows on behalf of the Iji Nike Community:
“This document replaces the original document, now lost, issued to Dr. Edwin Okoroma on November 1, 1986 and confirms that Umuenwene Iji Nike Community in addition to granting Plot H/19 New Haven East Layout to Dr. Edwin Okoroma also granted him sole private access road which runs between the boundary pillars and the fence walls erected by the owners of plots H/3 and H/4. The above mentioned access terminates as it adjoins the entrance to Plot H/19. Dr. Okoroma was to ensure al his own expense that this private access/road is incorporated in the amendment to the New Haven East Layout Scheme.
Dated at Enugu this 22nd day of April, 1996.
Sgd.
Igwe E.A.
Nnaji
(Italics mine for emphasis)
From this letter, it seems that the so called open space in respect or which the 1st respondent is claiming a right of way, and easement and profits appurtenant thereto was granted by H.R.H. Igwie Nnaji for and on behalf of the Nike Community exclusively to the 1st appellant. Before this grant, the 1st respondent had completed the development of his plot H3 and fenced the same off. If he built a gate into an area or portion of land granted by the same community to the 1st appellant, it is his own business which he had to sort out with the Nike Community which is the original landlord of both parties. This “private access road” which the community granted to the 1st appellant “sole private access” is the land in dispute in this matter. It is a land cast.
I shall now return to the Constitution (Suspension and Modification) Decree No. 107 of 1993 (hereinafter referred to simply as “Decree No. 107 of 199)”) to see if the Decree gives the Federal High Court jurisdiction over matters claimed in this suit as spell out in this judgment. In no pan of the Decree 107 of 1993 was the Federal High Court given the jurisdiction to deal with matters relating to land as is spelt out in the relief claimed in this suit. Whether the claim is framed in the form of right of way or casement or profit a pendre, a litigant cannot confer jurisdiction on a court where such jurisdiction docs not exist. Nor can a court assume jurisdiction where no such jurisdiction exists. Section 230(1) of the Decree 107 of 1993 begins as follows:
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may he conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion to any other court in civil causes and matters arising from…”
It runs from subsection 1(a) – (s). In no where does any of the subsections confer jurisdiction on the Federal High Court in matters relating to land, right of way, easement, reaping of profits a pendre, trespass to land, I shall in due course deal with the provisions in subsections (q), (r) and (s).
I shall now deal with the position of some police officers joined in this suit.
They are 2nd to 6th respondents. Why were they joined in this suit? The relief claimed against them was for “estopping and/or preventing the applicant from reaping or enjoying profits appurtenant to the said plot H3 and ingress and egress over and unto the open space adjoining the said No. H3” – see paragraph 2 (ii) of the relief claimed. The applicant is the 1st respondent. No damages were claimed against them. Injunction was also claimed against them. The 1st respondent alleged in the affidavit verifying the facts of his claim that the respondents have by their conduct taken the laws into their hands. The evidence of that allegation would seem to he Exh. C attached to the 2nd appellant’s affidavit (See page 67 of the record of appeal) It seems to me that the main contest in this matter is between the appellants and the 1st respondent. The involvement of 2nd – 6th respondents is merely incidental or ancillary to the main suit In Alhaji Umaru Abba Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 the issue, as in this case, was whether the Federal High Court had jurisdiction to determine and grant the reliefs claimed by the appellant in that court. It was a suit brought under the Fundamental Rights (Enforcement Procedure) Rules 1979. The Supreme Court held that since the Federal High Court had no jurisdiction to entertain a chieftaincy dispute which was the main claim or the principal issue, it cannot entertain the other claims which were ancillary or accessory to the main claim. Said Obaseki J.S.C. in his lead judgment at page 549:
“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 proceedings and judgment as there is no room for half judgment in any matter brought before the court.”
Oputa J.S.C. equally forthright in his contribution.
Said he at page 567:
“There is no doubt that the main claim before the High Court is for an order to quash the deposition of the appellant as Emir of Muri and a declaration that the appellant is still Emir of Muri. The Court of Appeal held rightly in my view, that these two claims raise Chieftaincy questions as defined in Section 165(1) of the 1963 Constitution No. 20 or 1963. The two Courts below are agreed that Chieftaincy questions simpliciter are outside the jurisdiction of the Federal High Court. The appellant’s claims 3, 4, 5 and 6although they touch his fundamental rights yet they arose out of the deposition of the appellant as the Emir of Muri for if he were not deposed, those claims would not have arisen. It is therefore correct to describe claims 3, 4, 5 and 6, as ancillary claims as they are collateral to, dependent on and auxiliary to claims 1 und 2. A court cannot adjudicate over ancillary claim if it has no jurisdiction to entertain the main claim and if the ancillary claims will inevitably involve a discussion of the main claim.”
The mere fact that the 2nd – 6th respondents who are officers or the Federal Government are joined in the suit and a declaration and injunction claimed against them does not per se give the Federal High Court jurisdiction to entertain a suit the main claim of which it has no jurisdiction to deal with, I shall now return to section 230(1) (q) (r) und (s) of Decree No. 107 of 1993 particularly subsection (s), Each of these subsections contains the word “agencies”.
There is a temptation to regard an act of a federal public officer as an act of the Federal Government Agency,
I say no to such a temptation. I shall not succumb to it. If the framers of the Decree intended that “agencies” shall be synonymous or conterminous with a Federal Government public officer it would have said so. If the Decree had intended that whenever there is a claim for declaration or injunction against a federal public officer, the claimant could bring his action at the Federal High Court it would have said so. Let me give an example that shows how preposterous such a proposition could be – suppose A wants to sue X for a declaration of title to land, trespass and injunction in respect of Blackacre situate at Enugu and X happens to be a messenger in the employment of the Court of Appeal which is a Federal Government institution (or if you like, Federal Government Agency) or a policeman in the Nigeria Police – can A bring his action in the Federal High Court because X is an officer in the Federal Public Service and the claim is for a declaration and injunction as postulated by section 230(1)(s) of the Decree? The answer is undoubtedly no. In my respectful view the word “Agencies” used in Section 230 (l)(q) (r) and (s) of Decree 107 of 1993 denotes the Federal Government establishments or organs through or by which the Federal Government carries on its functions – see University of Abuja v. Ologe (1996) 4 NWLR (Pt. 445) 706 at 725 per Oguntade J.C.A. said he:
“It seems to me that the use of the expression “any of its agencies” in Decree 107 of 1993 is meant to cover all the organs established by law through which the Federal Government carries out its functions …. one simply has to look at Decree 107 of 1993 and what it set out to achieve and then relate this to the ordinary function of the Federal Government”.
(Italics mine for emphasis). I agree entirely with my learned brother. The 2nd – 6th respondents although police officers in the Federal Government establishment, that is the Nigeria Police, are not Federal Government agencies within the meaning of section 230 (l)(q)(r) and (s) of Decree No. 107 of 1993. So long as they are in the State carrying out State duties, they are not agencies of the Federal Government for the purposes or Section 230 (l)(q) (r) and (s) of the Decree. In the Military Administrator of Kwara State & Ors. V. Lafiaji (1998) 7 NWLR (Pt. 557) 202, following an allegation of misappropriation of public fund the Kwara State Government set up a Commission of Inquiry to investigate the matter. Following a report of the inquiry the Kwara State Government issued a report which indicted the respondent (Alhaji Lafiaji). He sued in the Federal High Court. The appellants filed a preliminary objection challenging the jurisdiction of the court. The Federal High Court dismissed the objection and held that it had jurisdiction. The court held that the Commissioner of Police of Kwara State (3rd appellant) was an agent of the Federal Government. On appeal, the Court of Appeal held that the Military Administrator and the Commissioner of Police (1st and 3rd appellants) were not agents of the Federal Government while carrying out their State duties. The Court said per Abdullahi J.CA. at page 213:
“Clearly this section expanded the jurisdiction of the Federal High Court. But the real question now is that, are the appellants, particularly, the Military Administrator of Kwara State and the Commissioner or Police, Kwara State agents or the Federal Government to fall into line with the provisions of S.230(l)(q) (s) set out above in relation to what is purely Kwara State Government affairs. I think not.
Kwara State Government on whose behalf both the Military Administrator and the Commissioner of Police acted is a creature of the 1979 Constitution of Nigeria. It is the same Constitution that created the Federal Government. Under the same Constitution, separate functions are assigned to both the Federal Government and the State Government. In the exercise of the functions assigned to both tiers of government, each routinely sets up agencies to enable it discharge its functions. This is inspite of the command structure, which is a normal feature of military administration.
The provisions of the Constitution did not make a State Government an agency of the Federal Government: vis-a-vis the Military Administrator and a commissioner of Police posted to a State when carrying out a duty purely in relation to the State matter cannot be regarded as an agent of the Federal Government when carrying out that duty.”
As was rightly observed by Abdullahi J.C.A. at page 212:
“It is my view that for all intents and purposes, the whole affair was purely Kwara State Government affair. Whatever anybody or person or officer may find himself having (sic) role to play, including the Commissioner of Police Kwara State in this case is doing it or carrying it out on behalf of and for Kwara State Government.”
Thus a Federal Government Officer does not carry the stamp of Federal Government agency on his forehead wherever he goes or whatever he does. Whether he qualifies as such depends on the function he performs and what act he did that gave rise to the cause of action. From the facts of this case as deposed to in the 1st respondent’s affidavits and reliefs claimed against them, the 2nd – 6th respondents were not federal Government agencies in respect or this suit. Assuming for one moment that they were, this action is also caught by the fact that the connection of the 2nd – 6th respondents in this matter is merely ancillary to the main claim in respect of which the lower court had no jurisdiction.
Let me now deal with section 42(1) of the 1979 Constitution by virtue of which some legal practitioners, and indeed the lower court is under the misconception that its jurisdiction in matters pertaining to the enforcement of fundamental rights is either unlimited or wider than what it actually is. The learned trial Judge in his ruling said inter alia as follows at pages 108 – 109 of the record:
“On the implication of Section 230 (l) (s) of Decree No. 107 of 1993, it appears to me that, by the wording of that Section, the dichotomy created in the case of Tukur v. Government of Gongola State (supra) whereby jurisdiction of the Federal High Court under section 42(1) of the Constitution is lied up with the subject matter or the case, appears to have been removed. As in the case or Minister of Internal Affairs v. Shugabu (supra) at 917, by Coker J.C.A., (as he then was) the framers of the Constitution did not make any distinction as to the subject matter of any suit coming under Section 42(1) of the Constitution. According to his Lordship, jurisdiction of the High Court under Section 42(1) of the Constitution is special and should be regarded and treated as such.
And since the 3rd to 6th respondents are agencies of the Federal Government and the applicants/respondents main relief seeks declaration against the respondents. I am of the view that this court has jurisdiction, as the applicant/respondent is not asking the court to declare that he is the owner of plot H/3.”
Firstly, the case of Federal Minister of Internal Affairs v. Shugaba (1982)3 NCLR 915 on which the learned trial judge relied upon was a Court of Appeal decision as against the case of Tukur v. Government of Gongola State (supra) which was a Supreme Court decision. Moreover, the Supreme Court decision in Tukur case was given about 7 years after the Shugaba case. What is more, the Shugaba case was considered by the Supreme Court in the Tukur case. The Shugaba case was a State High Court case. I am unable to see by what stretch or imagination a dictum in the Shugaba case should be preferred to a clear pronouncement of the law by the Supreme Court in the Tukur case.
Now, Section 42(1) of the 1979 Constitution did not confer any jurisdiction, as such, on the Federal High Court.
It provides:
“42(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”.
(italics mine)
This is interpreted (or misinterpreted) by the lower court to give the Federal High Court jurisdiction in any matter pertaining to the enforcement of fundamental rights. It is quite possible that such interpreters are carried away by the side note to the section which says “Special jurisdiction of High Court and legal aid”. What the section gives to a litigant is access to the court in matters pertaining to the enforcement of the fundamental rights. As Oputa J.S.C. put it in Tukur’s case (supra) at page 560.
“Section 42(1) deals with access to the court (State and Federal High Courts) but it must be a court having jurisdiction”
(italics by me).
In other words, a litigant who wants to enforce his fundamental rights is at liberty to go to the State High Court or the Federal High Court but where he goes to the Federal High Court, it must be on matters in which the Federal High Court has jurisdiction.
It merely gives the Federal High Court as the State High Court, the jurisdiction to entertain matters relating to enforcement of fundamental rights but in doing that, the Federal High Court must confine itself to those matters in which it has the jurisdiction to adjudicate. I shall give an example. If a person’s fundamental right is infringed or threatened in matters pertaining to copyright, patents, designs or such like matters under section 7 of the Federal High Court Act or S. 30(1) of Decree 107 of 1993, he can commence a proceeding under the Fundamental Rights (Enforcement Procedure) Rules in the Federal High Court. If a matter is not covered by the specific constitutional provisions or the law giving the Federal High Court jurisdiction, one cannot bring the action in the Federal High Court, fundamental right or no fundamental right. In Tukur’s case (supra) Oputa J.S.C. considering the provisions of Sections 42 and 230 of the 1979 Constitution and Section 7 of the Federal High Court Act 1973 observed as follows:
“In the case now on appeal, the question will arise whether Section 42 of the 1979 Constitution read with a microscopic and a telescopic eye-telescopic in the sense that it will be read along with Section 230 of the 1979 Constitution and Section 7 of the Act No. 13 of 1973 invested the Federal High Court with jurisdiction to deal with causes or matters (even though these incidentally touch the fundamental rights provisions of our Constitution) in respect of which civil jurisdiction had not been conferred on it by section7(1)of the Federal High Court Act 1913.
Further pronouncements made by this Court in:
(i) Jonah O. Eze v. Federal Republic of Nigeria (1987) N.WLR. (Pt. 51) 506.
(ii) African Newspapers of Nigeria Ltd. v. The Federal Republic of Nigeria (1985) 2 NWLR. (Pt. 6) 137; (1985) 1 All NLR. 150; and
(iii) Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping & Transport Agencies Ltd. & Anor. (1987) 1 NWLR (Pt. 49) 212.
[italics mine]
all go to show that unlike the State High Court which is a Court of unlimited jurisdiction, the Federal High Court is a court of limited jurisdiction which cannot exercise jurisdiction over any cause or matter outside that conferred on it by Section 7(1) of the Act No. 13 of 1973 which created it and as enabled by S.230 of the 1979 Constitution or any other future Act of the National Assembly. In this case, the onus is on the appellant to show that his claims are covered by the constitutional provisions.”
This pronouncement will now include the modification of Section 230(1) of the 1979 Constitution by Decree 107 of 1993. In Mandara v. Attorney Geneal of the Federation (1984) 1 SCNLR 311 Sowemimo C.J.N. made the following pronouncement on the jurisdiction of the Federal High Court.
“As the former name of the Court is restricted, the Federal Revenue Court, although changed to Federal High Court, its jurisdiction as set out in sub-section (1) of Section 7 has never been altered. All criminal matters which that court has jurisdiction to deal with under sub-section (3) must be within the compass of section 1. The suggestion that the criminal jurisdiction of that Court is unlimited is fallacious and not supported by law … It is the duty of our Courts to observe the different jurisdictions which are imposed on those Courts. It is our hope that the Federal High Court will continue to deal with revenue cases, except of course, the election petitions in the case of Presidential and Vice-Presidential elections.”
Obaseki J.S.C. observed as follows at page 342 of Mandara’s case (supra) “Jurisdiction is never conferred in obscurity. The language of the law must be clear and positive … Jurisdiction is a power clearly visible to all beholders of the Constitution and the law that confers it. Microscopic eyes are not required in order to unearth it.”
Thus, any attempt to confer a jurisdiction on the Federal High Court otherwise than by the specific provisions of Section 7 of the Federal High Court Act, and Section 230 (1) of the 1979 Constitution as modified by Decree 107 of 1993 is unwarranted.
Before I conclude this judgment, let me refer briefly to one misconception which the lower court would seem to have fallen into. No doubt, Section 230(1) of the 1979 Constitution as modified by Decree 107 of 1993 increased or enlarged the jurisdiction of the Federal High Court. It however did not make its jurisdiction “unlimited” as the jurisdiction of the State High Court under section 236 of the said Constitution. Neither section 7 of the Federal High Court Act nor section 230 of the said Constitution as modified by Decree 107 of 1993 nor Section 231 of the Constitution gave the Federal High Court unlimited jurisdiction as the State High Court. The Federal High Court in exercising the jurisdiction conferred on it by the Constitution and the law should always be able to point out the law which gave it the jurisdiction to do what it is about to do. The Federal High Court should also not misinterprete Section 231 (1) of the Constitution which provides:
“231 (1) For the purpose of exercising any jurisdiction conferred upon it by this Constitution or may be conferred by an Act of the National Assembly, the Federal High Court shall have all the powers of the High Court of a State.”
(italics mine)
The fact that the Federal High Court shall have “all the powers” of the High Court of the State does not mean that the Federal High Court shall have all the jurisdiction of the High Court of a State. Power and jurisdiction are two different things. It simply means that while exercising its jurisdiction in those matters in which it has jurisdiction, it shall have all the powers of the High Court of a State. This point was very lucidly put by Oputa JSC in Tukur v. Government of Gongola State (supra) at page 562. The learned Justice said:
“Although ‘jurisdiction’ in its broadest sense will encompass ‘legal capacity’ ‘power” or ‘authority’ of a court, in a narrower sense, there is a distinction between jurisdiction strictu sensu and power. Thus, as enabled by section 230 of our 1979 Constitution, the Federal High Court retained its jurisdiction ‘in such matters connected with or pertaining to the revenue of the Government of the Federation … ‘ and section 23) gave the Federal High Court, in the exercise of the limited jurisdiction conferred aliened (that is by the enabling section. 230 and not by section 231) ‘all the powers of the High Court of a State.’ This means that although the Federal High Court and the High Court of a State have different functions, … they have, acting within their respective jurisdictions, the same judicial powers. Section 231 did not [however] equate the jurisdiction of the Federal High Court with that of the High Court of a State. No, it did not. It did not elevate the Federal High Court to a Court of unlimited jurisdiction.”In view of the frequent difficulties that arise as to the extent of the jurisdiction of the Federal High Court let me restate here the extent, the boundaries and limits of the jurisdiction of the Federal High Court and the judicial powers conferred on the Court by sections 230 and 231 of the 1979 Constitution and section 7 of the Federal High Court Act as stated by the Supreme Court in Bronik Motors Ltd. & Anor. v. Wema Bank Ltd. (1983) 1 SCNLR 296. I must add that to the limits of the jurisdiction of the court as stated in the above case must be added the modification of section 230(1) of the Constitution by Decree 107 of 1993. The Supreme Court arrived at the following conclusions:
“(i) The Federal High Court has limited jurisdiction in the sense that it has only so much of the jurisdiction conferred expressly by “existing laws” which exist as Acts of the National Assembly under Section 230(2) and also under specific sections of the 1979 Constitution as well as such other jurisdiction as may be conferred on it by future enactments of the National Assembly under section 230 of the 1979 Constitution.
(ii) Judicial power is not coterminous with ‘jurisdiction’ though the former embraces the latter but they are interchangeable.
(iii) A court can only exercise judicial power within its authorized jurisdiction i.e. its authority to determine a particular case.
(iv) Section 6 of the 1979 Constitution is not concerned with jurisdiction of courts. Consequently, the concept of reference to the judicial powers of the courts in determining the jurisdiction of the various courts vis-a-vis their power over state or Federal causes is completely extraneous to the spirit of the whole Constitution having regard to the various provisions of the 1979 Constitution conferring jurisdiction on various Courts.
(v) Section 230(1)(b) of the 1979 Constitution is an enabling provision not a self executing one.
There is no jurisdiction in the Federal High Court except as enabled by section 230 of the 1979 Constitution in regard to:
(a) Matters (connected with or pertaining to the Revenue of the Federation) which are prescribed by the National Assembly by specific legislation.
(b) Matters (not connected with the Revenue of the Federation) which are prescribed either by the Constitution or the National Assembly. Consequently, the jurisdiction of the Federal High Court does not extend to all Federal causes or matters with regard to which the National Assembly is competent to make law.
(vii) The jurisdiction of the State High Court under the 1979 Constitution is unlimited in all matters whether civil or criminal in both Federal and State causes within the State except as limited by Section 230.
Where both the State High Court and the Federal High Court exist in a State both have concurrent jurisdiction in matters pertaining to Fundamental Rights.”
The above will serve as a guide while bearing in mind that in the case of Fundamental Rights. (Enforcement Procedure Rules) the matter to be commenced in the Federal High Court must be matters in respect of which it has jurisdiction to adjudicate upon while matters in respect of which exclusive jurisdiction is reserved for the Federal High Court shall not be commenced in the State High Court but shall be commenced only in the Federal High Court.
From all the above reasons or a combination of some of them, I hold that the lower court, that is, the Federal High Court lacks jurisdiction to entertain the subject matter of this suit. The appeal succeeds and is accordingly allowed. The ruling of the lower court of 12th March, 1997 and its ex-parte order made on 14th day of May, 1996 are hereby set aside. The suit is hereby struck out for want of jurisdiction by the lower court. The appellant shall have the costs of this appeal fixed at N2.000.00.
Other Citations: (1998)LCN/0369(CA)
