Tijjani V. Njc & Ors (2021)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED MUSTAPHA, J.C.A. 

This application was brought pursuant to Orders 7 Rule 1, 17, Rules 1 and 2, 18 Rule 11, 20 Rules 2 and 3 of the Court of Appeal Rules 2011, Sections 6 (6) (a), 35 (1) 46 (1) and 232 (1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria, as amended and the inherent jurisdiction of this Court.

The application prays for the following orders:

1. AN ORDER of Hon. Court of Appeal granting the order contained in the Applicant/ Appellant’s Application dated 2nd July, 2020 as a prelude for contempt of Court procedure as prescribed by statute against the 4th Respondent, that the Trial Judge who is clothed with Jurisdictional power to grant, but willfully refused and neglected to hear and grant, before further step could be taken in the hearing of the instant Appeal today. Marked T .1
2. AN ORDER of the Hon. Court of Appeal restraining the 5th, 7th and 8th Respondents, the Executive Arm of Lagos State Government; the state of origin of the 4th Respondent herein or any of her agencies, including but not limited to the 5th Respondent; ‘the Hon. Attorney General and Commissioner for Justice Lagos State; the 7th & 8th Respondents; the DPP Lagos State from instituting and or maintaining any criminal proceeding or charges relating to any of the charges contained either in its original or amended form in CHARGE/ SUIT NO: ID/2626C/2016. STATE OF LAGOS V. ALHAJI ABDUL RAUF AND ALHAJI FARRY YUSUF Or any other offences that having the same ingredients as the offences contained either in its original or amended form of the instant charges.
3. AN ORDER of the Hon. Court of Appeal compelling the state of Lagos High Court presided over by Hon. Justice Hakeem Oshodi. J that is sitting as Appellate Court on the final judgment/ orders of the Federal High Court to grants as follows;

a) Immediate grant of stay of proceeding on: CHARGE/ SUIT NO: ID/2626C/2016. STATE OF LAGOS V. ALHAJI ABDUL RAUF TIJJANI AND AKANNI SAUDA. And CHARGE/ SUIT NO: ID/2626C/2016. STATE OF LAGOS V. ALHAJI ABDUL RAUF TIJJANI AND ALHAJI FARRY YUSUF.

b) Grant the stay of enforcing the unlawful warrant of arrest of the Applicant/ Appellant herein and his privies issued by the State High Court of the 5th, 7th and 8th Respondents that operating as Appellate Court to sit on the final decision of the Federal High Court without Authority of law.

c) And AN ORDER setting aside all the proceeding/ decisions taken so far in two mentioned suit numbers Supra including releasing of the International Passport of the Applicant/ Appellant herein and his privies from all the encumbrances imposed on them in the said purported Appellate of Lagos State High Court Anarchistically created by the 5th, 7th and 8th Respondents without Authority of law.

4. And for Status Quo to be secured; AN ORDER of the Hon. Court of Appeal discharge and Acquittal the Applicant/ Appellant herein and his privies; the Defendants/ Applicants thereof on the grand of legislative law and constitution as a means by which the law vindicates the Public interest in the Administration of Justice.
5. AND for such further order or other order as this Honorable Court of Appeal may deem fit to grant in the circumstance.

The grounds for the application are:

1. The Court is a creation of the constitution. It will not give its aid, under any guise, to a violation of any provision of the Constitution, which give it life. And as argued by learned Counsel for the respondents in the oral application Judges must, at all times and under all circumstances, strive to honour their oath office to defend and protect to constitution.
2. The object of interlocutory injunction is to protect the applicant against injury by violation of his right for which he would not be adequately compensated on damages recoverable in the action, if the uncertainty were resolved in his favour at the trail.
3. It is the duty of the judiciary to keep in check the excesses of the executives and overbearing and abrasive tendencies of the Legislature so that each of the 3 components of the government confines itself within the province allocated or prescribed for it by the constitution … I am of view that, it should be understood that a constitution is not a mere common legal document. It is essentially a document relating to and regulating the affairs of the nation state and stating the functions and powers of the different apparatus of the government as well as regulating the relationship between the Citizen and the State. It equally makes provision for rights of the citizen within the compass of the state.
4. An interlocutory injunction which is granted in the litigation process is basically aimed at maintaining the status quo pending the determination of the issues submitted for adjudication by the Court. It is an equitable jurisdiction which the Court is called upon to exercise in the light of the facts presented before it by the applicant.
5. The injunction is not granted as a matter of grace, routine or course. On the contrary, the injunction is granted only in deserving cases, based on hard law and facts. Some of the principles or factors to be considered in an application for interlocutory injunction are:
6. There must be a subsisting action.
7. The subsisting action must clearly denote a legal right which the applicant must protect.
8. The applicant must show that there is a serious question or substantial issue to be tired.
9. And because of (3) above, the status quo should be maintained pending the determination of the substantive action.

​The application is supported by a nine-paragraph affidavit deposed to by Alhaji Abdul-Rauf Tijjani MNI OFR, with the written address in support of motion as well as exhibit A1, AB, exhibit A3A, A3B, A4, A5, A6, A7, T1 and T5 attached. The affidavit of urgency was withdrawn and struck out on the 4th of March, 2021; the 6th was served with both the hearing notice but was not in Court.

The Applicant urged the Court to grant the application in the interest of justice.

U.O. Sule Esq., SAN for the 1st Respondent did not file a counter affidavit but opposed the application on points of law; urging the Court to dismiss the application because, it does not relate to this appeal in his opinion.

Innocent Daagba Esq., of counsel for the 2nd Respondent while adopting the submissions of U.O. Sule SAN also urged the Court to dismiss the application because the application relates to a case before the Lagos State High Court and not this Court.

Rex Irame Esq., of counsel for the 3rd Respondent adopted the submissions of U.O. Sule SAN and also urged the Court to dismiss the application without much ado.

Boniface Bassey Esq., for the 4th Respondent adopted the submissions of the 1st and 2nd Respondent’s counsel as well.

​Ojonimi S. Appeh Esq., for the 5th, 7th and 8th Respondents filed a eight paragraph counter affidavit deposed by Ayobami K. Oke Esq., in opposition to the application.

I have carefully gone through the application alongside the affidavits, exhibits attached, the counter affidavit and the various submissions of counsel; especially that of the applicant who contends that he pleaded illegalities contained in reliefs 4 to 7 and established them through affidavit evidence that need no further proof; especially what he referred to as “the crime of unlawful removal of the case file that contained the final judgment of the Federal High Court and rights of the applicant… and the crime of contempt and anarchistic act of the 5th, 7th and 8th Respondents that converted their State High Court of Lagos to an appellate Court for final judgment/orders of the Federal High Court in excesses of sovereign power vested by the constitution and the law to the Executive Arms of the State of the Federation of which, the 5th, 7th and 8th Respondents… “

The Applicant formulated a sole issue for determination as follows:

Whether the Courts established by the Constitution of the nation are constitutionally licensed to protect validly exercised rights of a party that placed before it along with established illegalities of other parties in the context of law?

The Applicant contends while referring to AKILU V FAWEHINMI 2 (1989) 2 NWLR part 102 at page 149, that Courts have jurisdictional power to protect rights of parties “…that falls within the sphere of his or their legal liberty.”

While referring to LAWAL-OSULA & ORS V CHIEF SAKA LAWAL OSULA & ORS (1995) LPELR-1763-SC, the applicant contends that exhibits Al and AB attached to his supporting affidavit established that the 4th, 5th, 7th and 9th Respondents have no locus standi to seek discretionary remedy from the lower Court; and that the only “jurisdictional power the trial Court has in the circumstances is to protect all the legal instruments issued in favour of the Applicant herein as against the 5th, 7th and 8th Respondents…”

That all the processes filed and argued at the lower Court, as well as the decision of the Court are exercises in futility, as they “…ab initio ousted the jurisdiction of the Court of Appeal to entertain any of their positions in the instant application or in the main appeal…” The Applicant urged this Court to grant all the reliefs sought in this application; he referred the Court to SALEH V ALHAJI SHETTIMA MONGUNO & ORS (2006) LPELR-2992-SC MUHAMMADU BUHARI & ORS V CHIEF OLUSEGUN AREMU OBASANJO & ORS (2003) LPELR-813-SC.

The Applicant also urged this Court “…not to fall into the same booby trap set down vides the sophistry of technical minded counsel of the adversary of the Appellant/Applicant herein who is not a legal practitioner but bent to exercise his civic constitutional duty that must be respected and encourage to further brighten the sphere of civilization of the citizens and stabilization of the rules of law…”

He urged this Court to resolve the sole issue in favour of the Applicant, against the Respondents.

​It is important to point out that the Applicant appeared for himself. He is not a legal practitioner. He articulated his case very well in spite of the uphill task he had to contend with; and that partly explains why he urged this Court, in apparent apprehension, not to be bogged down by technicality “…by falling into the same booby-trap set down by the sophistry of technical minded counsel…”

While the Court is always willing to assist any party who is not a legal practitioner to conduct their case without let or hindrance, in the interest of justice, the Court is always mindful of its duty as an impartial arbiter, not to jump into the arena in sympathy or empathy; OKON V OKON (2009) LPELR-8699- CA; See also SUBERU V. STATE (2010) 8 NWLR PT. 1197 PG. 586; AJUWON VS. AKANNI (1993) 9 NWLR PT. 316 PG. 182; SALUBI V. NWARIAKU (1997) 5 NWLR PT. 505 PG.442 AND OLORUNFEMI VS. ASHO & ORS (1999) 1 NWLR PT. 585 PG. 1.

Having gone through the reliefs sought, it is clear to this Court that the central issue is indeed the judgment of the Federal High Court Lagos at pages 532 to 561 of the record of appeal; and most importantly, on proper scrutiny, the reliefs sought show that the application filed on the 10th of March 2021 seeks reliefs this Court cannot grant. This Court cannot, because it is in no position to, in the circumstances “…arrest the anarchy brought into the judicial system” as claimed by the applicant.

​The reliefs sought have all been listed elaborately, and this Court does not have the jurisdiction to grant any one of them, not least because they are uncertain and imprecise, and most importantly because they refer to processes filed before the trial Court and not before this Court.

It is for these reasons that this Court cannot in all fairness hear and determine this application as presently constituted, because it lacks the jurisdiction to do so.

Even though the Applicant appears to be highly educated and very intelligent, and buoyed by his constitutional right to represent himself, some cases are better handled by counsel due largely to technicalities of the law, and parties will be better served if they engaged the services of counsel, at least for advice to avoid certain pitfalls that non lawyers inevitably face when handling cases of this nature on their own. I am fortified in this belief by several decisions of this Court and the apex Court, chief amongst which is TIJANI & ANR V FBN PLC (2013) LPELR- 20656-CA where this Court held among other things that:

“… it’s a well settled principle, that the participation of a lawyer in any criminal proceedings, as well as in complex civil proceedings (such as the instant case), on behalf of an accused person (or litigant, as the case may be), is very essential to a fair trial. The participation of a lawyer in a case is intrinsically connected to the accused person’s or litigant’s right to adequately defend himself, or present his case. As once aptly articulated by Lord Denning, MR- It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or (even) wanting in- intelligence. He cannot examine or cross-examine witnesses. We see it every day. A Magistrate says to a man: You can ask any questions you like; whereupon the man immediately starts to make speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task? See PETT VS. GREYHOUND RACING ASSOCIATION (NO. 1) (1968) 2 ALL ER 545 @ 549.

​From the above eloquent dictum of Lord Denning, MR, it’s rather obvious, that what actually makes the participation of a lawyer (counsel) in a Court case so vital is his adequate knowledge of the law. His ability to apply that knowledge to given fact situations; to sift relevant, admissible and often complex evidence from what is irrelevant and inadmissible. And most importantly, his skills in argumentation and power of persuasion. I think, it was Lord Simon who once cited with approval Dr Johnson’s observation in 5 BOSWELL’S LIFE OF JOHN- (Birkbeck Hill edition) 26, thus: As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the community, who by study and experience, have acquired the art and power of arranging evidence, and of applying to the points at issue what the law has settled. A lawyer is to do for his client all that his client might fairly do for himself if he could. See WAUGH VS. BRITISH RAILS BOARD (1979) 2 ALL ER. 1169 @ 1176. See also ARTICLE 14 (3) (d) of the International Covenant on Civil and Political Rights; Article 7 (i) (c) of the African Charter on Human and Peoples Rights; Article 8 (2) (d) of the American Convention on Human Rights; Article 6 (3) (c) of the European Convention for the Protection of Human Rights And Fundamental freedoms. At this point in time, the following rhetorical question is rather pertinent, what then are the likely consequences of a party’s election to conduct his case in person? I think, the answer to that pertinent rhetorical question is not far-fetched. See AMICI CURIAE; PROSECUTOR VS. MILOSEVIC: CASE NO. IT-02-54- AR73.6, dated January 20, 2004, wherein consequent upon the complaint of the accused person that the Trial Chamber had not accorded him adequate time to prepare his defence (and for instance, he had to peruse at least 350,000 pages of complex material evidence of the prosecution), the Appeals chamber held, inter alia, thus: There is no doubt that, by choosing to conduct his own defence, the Accused deprived himself of resources a well-equipped legal defence team could have provided. A Defendant who decides to represent himself relinquishes many of the benefits associated with representation by counsel. The legal systems respect for a Defendant’s decision to forgo assistance by counsel must be reciprocated by the acceptance of responsibility for the disadvantages this choice may bring.” Per SAULAWA, J.C.A, as he then was (Pp. 14-17, paras. F-B).

The decision or choice to forgo the services of counsel is left to the litigant out of respect for his rights;

“The best person to decide who represents him as counsel is the appellant, and that is his Constitutional right…” Per BELGORE, J.S.C (P. 3, paras. E-G).

0000000000 That compels me in this respect to endorse the observation of Denning L.J. (as he then was) inR. V. STAFF SUB-COMMITTEE OF LCC’S EDUCATION COMMITTEE & ANOR EX PARTE SCHONFIELD & ORS (1956) 1ALL ER 753 to the effect that: “Much as we value the help of the Bar, we must never go so far as to refuse an applicant simply because he is in person.” Per OGUNDARE, J.S.C (Pp. 37-38, para. F)

The justice of this case demands that the Applicant seeks assistance. There is no compulsion to do that, but where the applicant, as in this case, chooses to go the whole hog himself, then he sinks or swims on his own.

I am compelled to strike out this application filed on the 10th of March, 2021 for lack of jurisdiction to hear and determine the motion as presently constituted without much ado.

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Others: CA/ABJ/CV/43/2021(R)