MBA & ORS v. I.G.P & ORS
(2020)LCN/14719(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, November 24, 2020
CA/LAG/CV/1111/2019
RATIO
JURISDICTION: IMPORTANCE OF THE ISSUE OF JURISDICTION
The law compels the Courts to accord premier attention to issue of jurisdiction, which is numerouno in adjudication, when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193. I will obey this legal commandment so as not to insult the law.
Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1.
A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”, see Madukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F. J.,Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. The three ingredients must co-exist in order to infuse jurisdiction in a Court. PER OGBUINYA, J.C.A.
JURISDICTION: EFFECT OF PROCEEDING DONE WITHOUT JURISDICTION
Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it will be marooned in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra). PER OGBUINYA, J.C.A.
JURISDICTION: WHAT DETERMINES THE JURISDICTION OF A COURT
Nota bene, the case-law has endorsed, in toto, a statement of claim as the major barometer to be used by the Court to measure the presence or absence of its jurisdiction, see Ikine v. Edjerode (2001) 18 NWLR (Pt. 745) 446; A.D.H. Ltd. v. A.T. Ltd. (2006) NWLR (Pt. 989) 635; Oni v. Cadbury (2016) 9 NWLR (Pt. 1516) 80; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Yar’adua v. Yandoma(2015) 4 NWLR (Pt. 1466) 213; Akpamgbo-Okadigbo v. Chidi(No. 2) (2015) 10 NWLR (Pt. 1466) 124; Isah v. INEC (supra); Lau v. PDP (supra); Azubuogu v. Oranezi (supra); Agi v. PDP (2017) 17 NWLR (Pt. 1595) 386; A.-G, Fed. v. A.-G., Anambra State (2018) 6 NWLR (Pt. 1615) 314; Roe Ltd. v. UNN (2018) 6 NWLR (Pt. 1616) 420; F.U.T., Minna v. Olutayo (2018) 7 NWLR (Pt. 1617) 176; A.-G., Lagos State v. Eko Hotels (2018) 7 NWLR (Pt. 1619) 518. In an action commenced by dint of originating summons/motion, as in this case, the affidavit in support serves as the statement of claim, see Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; PDP v. Ezeonwuka (2018) 3 NWLR (Pt. 1606) 187; Lau v. PDP (2018) 4 NWLR (Pt. 1608) 60; Owuru v. Adigwu (2018) 1 NWLR (Pt. 1599) 1; CBN v. Aribo (2018) 4 NWLR (Pt. 1608) 130. Relief, too, is one of the determinants of jurisdiction of Court, see Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382; Garba v. Mohammed(2016) 16 NWLR (Pt. 1537) 114; PDP v. Oranezi(2018) 7 NWLR (Pt. 1618) 245; Gbileve v. Addingi (2014) 16 NWLR (Pt. 1433) 394. PER OGBUINYA, J.C.A.
FUNDAMENTAL RIGHT: RULE ON SEEKING RELIEF IN COURT UNDER THE SANCTUARY OF FUNDAMENTAL RIGHT PROCEDURE
It is trite and elementary law that where the main/primary right/claim is not a fundamental right, or where a fundamental right is an ancillary to another claim, then it is improper to seek relief in a Court under the sanctuary of fundamental right procedure as such a situation impinges on the jurisdiction of the Court, see Sea Trucks (Nig.) Ltd. v. Anigboro (supra); WAEC v. Adeyanju (supra); Tukur v. Govt., Gongola State (1989) 4 NWLR (Pt. 117) 517; Jack v. UNAM (2004) 5 NWLR (Pt. 865) 208; Amale v. Sokoto Local Govt. (2012) 5 NWLR (Pt. 1292) 181; Emeka v. Okoroafor (2017) 11 NWLR (pt. 1577) 410, Nwachukwu v. Nwachukwu (2018) 17 NWLR(pt. 1648) 357. PER OGBUINYA, J.C.A.
RIGHTS: JUDICIAL FORMULA TO GUAGE THE PRESENCE OR ABSENCE OF MAIN OR ANCILLARY RIGHTS
Interestingly, the case-law has since evolved/invented the acceptable judicial formula which the Courts use as the yardstick/template to gauge the presence or absence of main or ancillary rights. In Sea Trucks (Nig.) Ltd v. Anigboro (2001) 3 NWLR (Pt.696) 159, Karibi-Whyte, JSC, incisively and insightfully, declared:
“The correct approach in a claim for the enforcement of fundamental rights is to examine the reliefs sought, the grounds for such relief, and the facts relied upon. Where the facts relied upon disclose a breach of the fundamental right of the applicant as the basis of the claim, there is here a redress through the enforcement of such rights through the Fundamental Rights (Enforcement Procedure) Rules, 1979. However, where the alleged breach of right is ancillary or incidental to the main grievance or complaint, incompetent to proceed under the rules. This is because the right, if any, violated, is not synonymous with the substantive claim which is the subject-matter of the action. Enforcement of the right per-se cannot resolve the substantive claim which is any case different.” PER OGBUINYA, J.C.A.
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
1. MR RICHARD MBA 2. MR AKINDURO LAWSON 3. CHIEF RAHEEM ABEGUNDE OJE 4. MR BEN OBIUWEVBI APPELANT(S)
And
- INSPECTOR GENERAL OF POLICE 2. NIGERIA POLICE FORCE 3. LAGOS STATE TASK FORCE ON ENVIRONMENT AND SPECIAL OFFENCES UNIT 4. ATTORNEY GENERAL OF LAGOS STATE RESPONDENT(S)
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal queries the correctness of the decision of the Federal High Court of Nigeria, Lagos Division (hereunder addressed as “the lower Court”),coram judice; M.B. Idris, J. (now JCA), in Suit No. FHC/L/CS/750/2016, delivered on 30th January, 2017. Before the lower Court, the appellants and the respondents were the applicants and the respondents respectively.
The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The appellants were residents and landlords in Atinporome Community in Badagry, Lagos State. On 14th December, 2013, the agents of the respondents wrote a letter to the appellants to vacate their houses and land. The appellants replied same through their solicitor intimating them that there was a subsisting Court order to maintain status quo on the land. At about 4.30am of 16th December. 2013, heavily armed police men and officials of the task force, with 16 black maria vehicles and 12 bulldozers, invaded the community and demolished the appellants’ houses alongside over 500 other houses without any Court order. The
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appellants alleged that they were arrested, tortured and detained on 16th and 17th December, 2013. They claimed that the demolition made them lose their valuables, homes, businesses and health. Sequel to these, the appellants beseeched the lower Court, via an originating motion filed on 3rd June, 2016 under the Fundamental Rights(Enforcement Procedure) Rules, 2009, and tabled against the respondents the following reliefs:
1. A DECLARATION that the arrest, torture and detention of the applicants by the agents of the respondents for two (2) days at the station/unit of the 3rd Respondent from the 16th of December 2013 to 17th December, 2013 without cause or any Court order is wrongful, illegal, unlawful, unconstitutional, null and void as it violates the Applicants fundamental rights as enshrined under Sections 33, 34, 35, 36 and 41 of the 1999 Constitution of the Federal Republic of Nigeria.
2. A DECLARATION that the forceful invasion and demolition of the Applicants residential houses on the 16th of December 2013 by the agents of the Respondents without any Court order is wrongful, illegal, unlawful, wicked, unconstitutional, null and void as it
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violates the Applicants and other residents fundamental rights as enshrined under Sections 36, 43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria.
3. A DECLARATION that the continuous threats of arrest, intimidation and harassment of the Applicants by the agent of the respondents without cause is illegal, oppressive, unconstitutional, null and void as it violates the Applicants’ fundamental rights as enshrined under Sections 33, 34 and 36 of the 1999 Constitution of the Federal Republic of Nigeria.
4. AN ORDER COMPELLING the Respondents jointly and severally to pay the sum of N500, 000,000.00 (Five Hundred Million Naira) to the Applicants being general and exemplary damages for the unlawful arrest and torture and detention and the forceful invasion and demolition of the Applicants residential houses without any order of the Court.
5. AN ORDER OF PERPETUAL INJUNCTION restraining the respondents, jointly and severally, their officers, agents, servants, privies or however called and connected from arresting, intimidating, harassing, humiliating, detaining or disturbing the applicants in any manner whatsoever on any fact
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connected with or related to the facts of this case.
6. Cost of action assessed at N5,000,000 (Five Million Naira) only.
7. SUCH FURTHER ORDER OR OTHER ORDERS as this Honourable Court deem fit.
In reaction, the third and fourth respondents joined issue with the appellants and denied liability by filing a preliminary objection, counter-affidavit and a written address. The appellants reached to the preliminary objection and filed a further affidavit. The lower Court, duly heard the suit. In a considered judgment delivered on 30th January, 2017, found at pages 140-159 of the record, the lower Court declined jurisdiction and transferred the matter to the Lagos State High Court for adjudication.
The appellants were dissatisfied with the decision. Hence, on 6th April, 2017, the appellants lodged a 3-ground notice of appeal, copied at pages 160-167 of the record, wherein they prayed this Court for:
AN ORDER allowing the appeal and setting aside the Judgment of the lower Court by Honourable Justice M.B IDRIS of the Federal High Court, Ikoyi, Lagos delivered on the 30th of January, 2017.
AN ORDER hearing the Appellants case on the
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merits and granting all the reliefs sought by the Appellants in the originating motion dated 31st May 2016.
Thereafter, the parties through counsel, filed and exchanged their respective briefs of argument in line with the procedure for hearing civil appeals in this Court. The appeal was heard on 15th October, 2020.
During its hearing, learned appellants’ counsel, O.E Ogungbeje, Esq., adopted the appellants’ brief of argument filed on 27th May, 2020 but deemed properly filed on 28th May, 2020, and the appellants’ reply brief, filed on 24th June, 2020, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned third and fourth respondents’ counsel, Hameed Oyenuga, Esq., adopted the third and fourth respondents’ brief of argument, filed on 15th June, 2020 as forming his reactions against the appeal. He urged the Court to dismiss it. The first and second respondents despite being duly served, were unrepresented and filed no brief of argument.
In the appellants’ brief of argument, learned counsel distilled two issues for determination to wit:
1. WHETHER THE LEARNED
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TRIAL JUDGE WAS RIGHT WHEN HE DECLINED TO THE APPELLANTS FUNDAMENTAL RIGHTS SUIT AGAINST THE RESPONDENTS.
2. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE REFUSED AND FAILED TO HEAR THE APPELLANTS SUBSTANTIVE FUNDAMENTAL RIGHTS SUIT ON THE MERIT AND GRANT THE RELIEFS THEREIN.
In the third and fourth respondents’ brief of argument, learned counsel crafted two issues for determination, viz:
1. Whether the trial Court was right when it declined jurisdiction to entertain the Appellants suit commenced under the Rights (Enforcement Procedure) Rules of 2009.
2. Whether the learned trial Judge was right when he refused and failed to hear the Appellants’ suit on the merit and grant the reliefs sought therein.
A close look at the two sets of issues shows that they are identical in substance. In fact, the third and fourth respondents’ issues can be conveniently subsumed under the appellants’. For this reason of sameness, l will decide the appeal on the issues formulated by the appellants: the undoubted owners of the appeal. In this wise, issue one is sufficient to determine the appeal.
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Arguments on the issue:
Learned counsel for the appellants submitted that the lower Court and the High Court have concurrent jurisdiction to hear fundamental right matter. He relied on Jack v. UNAM (2004) 5 NWLR (Pt. 865); FUTA Minna v Olutayo (2017) LPELR – 43827 (S.C); 208; NDIC v Governing Council of ITF (2012) 9 NWLR (Pt. 1305) 252; Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 (FREPR). He asserted that the current approach to determine whether a matter would fall under fundamental right procedure was stated in Sea Trucks (Nig) Ltd v. Anigboro (2001) LPELR – 3025 (SC). He stated that the appellants’ reliefs showed that the suit constituted a breach of their fundamental rights under Chapter IV of the Constitution, as amended.
On behalf of the respondents, learned counsel contended that the appellants’ suit as constituted robbed the lower Court of jurisdiction to hear it. He highlighted the fundamental nature and ingredients of jurisdiction. He cited Ohakim v Agbaso (2010) LPELR – 2359; Utih v Onoyivwe (1991) 1 NWLR (Pt. 166) 166; A-G, Lagos v Dosumu (1989) 3 NWLR (Pt. 111) 552; Madukolu v. Nkemdilim (1962)
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2 SCNLR 341. He enumerated the process to be considered in determining jurisdiction of Court. He referred to Adeyemi v. Opeyori (1976) 9-10 SC 31; Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 427. He posited that the appellants’ main claims were their title to land, demolition of their houses and trespass which did not fall under fundamental rights but incidental to them. He explained that it is a condition precedent that the main claim must be under fundamental right for a Court to have jurisdiction. He relied on Ezeanyika v. Governor of Imo State (2007) All FWLR (Pt. 361) 151; Uzoukwu v. Ezeonu II (1991) 6 NWLR(Pt. 200) 708: WAEC v. Akinkunmi (2008) 9 NWLR (Pt. 1091) 151; Gafar v. Govt of Kwara State (2007) 4 NWLR (Pt.1024) 375, Tukur v. Govt of Taraba (1997) 6 NWLR (Pt 510) 549; Tukur v Govt. of Gongola State (1989) 4 NWLR (pt 117) 517; Sea Trucks Nig. Ltd v. Anigboro (2001) 3 NWR (Pt. 696) 159; WAEC v. Adeyanju (2008) LPELR – 3467 (SC); Abdulhamid v. Akar (2006) 13 NWLR (Pt. 966) 127.
Learned counsel conceded that the High Court in that State under Section 46 (1) of the Constitution, as amended, meant the High Court or the Federal High Court.
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He explained that for the lower Court to have jurisdiction the fundamental right matters must be in relation to the items in Section 251(1) of the Constitution, as amended, that it would exercise jurisdiction. He cited Gafar v. Government of Kwara State (supra); Adetona v. Igele General Enterprises Ltd (2011) 7 NWLR (Pt. 1247) 542; Abdullahi v. Komolafe (2019) LPELR – 46519 (CA).
On points of law, learned appellants’ counsel urged the Court to follow its decision in Adu v. Lagos State Task Force on Environment and Special Offences Unit (unreported) Appeal No. CA/L/972/2014, delivered on 23rd February, 2016.
Resolution of the issue
In total loyalty to the injunction of the law, I will settle issue one first. The hub of the issue is plain. It centres on the jurisdiction of the lower Court to hear the suit which mothered this appeal. The law compels the Courts to accord premier attention to issue of jurisdiction, which is numerouno in adjudication, when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016)
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9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193. I will obey this legal commandment so as not to insult the law.
Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding, see Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1.
A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon
10
fulfillment of any condition precedent to the exercise of jurisdiction”, see Madukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F. J.,Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. The three ingredients must co-exist in order to infuse jurisdiction in a Court.
Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it will be marooned in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra).
Nota bene, the case-law has endorsed, in toto, a statement
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of claim as the major barometer to be used by the Court to measure the presence or absence of its jurisdiction, see Ikine v. Edjerode (2001) 18 NWLR (Pt. 745) 446; A.D.H. Ltd. v. A.T. Ltd. (2006) NWLR (Pt. 989) 635; Oni v. Cadbury (2016) 9 NWLR (Pt. 1516) 80; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Yar’adua v. Yandoma(2015) 4 NWLR (Pt. 1466) 213; Akpamgbo-Okadigbo v. Chidi(No. 2) (2015) 10 NWLR (Pt. 1466) 124; Isah v. INEC (supra); Lau v. PDP (supra); Azubuogu v. Oranezi (supra); Agi v. PDP (2017) 17 NWLR (Pt. 1595) 386; A.-G, Fed. v. A.-G., Anambra State (2018) 6 NWLR (Pt. 1615) 314; Roe Ltd. v. UNN (2018) 6 NWLR (Pt. 1616) 420; F.U.T., Minna v. Olutayo (2018) 7 NWLR (Pt. 1617) 176; A.-G., Lagos State v. Eko Hotels (2018) 7 NWLR (Pt. 1619) 518. In an action commenced by dint of originating summons/motion, as in this case, the affidavit in support serves as the statement of claim, see Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; PDP v. Ezeonwuka (2018) 3 NWLR (Pt. 1606) 187; Lau v. PDP (2018) 4 NWLR (Pt. 1608) 60; Owuru v. Adigwu (2018) 1 NWLR (Pt. 1599) 1;
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CBN v. Aribo (2018) 4 NWLR (Pt. 1608) 130. Relief, too, is one of the determinants of jurisdiction of Court, see Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382; Garba v. Mohammed(2016) 16 NWLR (Pt. 1537) 114; PDP v. Oranezi(2018) 7 NWLR (Pt. 1618) 245; Gbileve v. Addingi (2014) 16 NWLR (Pt. 1433) 394.
Now, the marrow of the appellants’ chief agitation, indeed the foremost on the killer issue, is pegged on the lower Court’s declination to entertain their suit, which was commenced under the canopy of fundamental rights procedure, on the footing of want of subject matter jurisdiction. In reaching at the ultimate finding, the lower Court was highly influenced by the defence, erected by the respondents, that the appellants’ claimed rights and main reliefs were incidental and outside the firmament of fundament rights procedure. The respondents greeted the appeal with the same defence before this Court. It is trite and elementary law that where the main/primary right/claim is not a fundamental right, or where a fundamental right is an ancillary to another claim, then it is improper to seek relief in a Court under the sanctuary of fundamental right
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procedure as such a situation impinges on the jurisdiction of the Court, see Sea Trucks (Nig.) Ltd. v. Anigboro (supra); WAEC v. Adeyanju (supra); Tukur v. Govt., Gongola State (1989) 4 NWLR (Pt. 117) 517; Jack v. UNAM (2004) 5 NWLR (Pt. 865) 208; Amale v. Sokoto Local Govt. (2012) 5 NWLR (Pt. 1292) 181; Emeka v. Okoroafor (2017) 11 NWLR (pt. 1577) 410, Nwachukwu v. Nwachukwu (2018) 17 NWLR(pt. 1648) 357.
Interestingly, the case-law has since evolved/invented the acceptable judicial formula which the Courts use as the yardstick/template to gauge the presence or absence of main or ancillary rights. In Sea Trucks (Nig.) Ltd v. Anigboro (2001) 3 NWLR (Pt.696) 159, Karibi-Whyte, JSC, incisively and insightfully, declared:
“The correct approach in a claim for the enforcement of fundamental rights is to examine the reliefs sought, the grounds for such relief, and the facts relied upon. Where the facts relied upon disclose a breach of the fundamental right of the applicant as the basis of the claim, there is here a redress through the enforcement of such rights through the Fundamental Rights (Enforcement Procedure) Rules, 1979. However, where the
14
alleged breach of right is ancillary or incidental to the main grievance or complaint, incompetent to proceed under the rules. This is because the right, if any, violated, is not synonymous with the substantive claim which is the subject-matter of the action. Enforcement of the right per-se cannot resolve the substantive claim which is any case different.”
I have, in due fidelity to the desire of the law, consulted the record: the spinal cord of the appeal. My first port of call is the residence of the appellants’ reliefs, grounds for the reliefs and facts in the affidavit which colonise pages 5-11 of the record. I have perused them with a fine tooth comb. Admirably, they harbuour no ambiguity. I have also married them with the inelastic positions of the law catalogued above. The raison d’etre for the juxtaposition is not far-fetched. It is to ascertain if the appellants’ suit, as displayed in their reliefs, grounds or facts, obeyed or flouted the law on main or incidental claim within the ambit of fundamental right procedure.
A resume of the crux of the appellants’ case, decipherable from the facts in the affidavit and the
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grounds for reliefs, is that they were unlawfully arrested, tortured, detained and their residential houses illegally demolished by the respondents. The appellants’ first declaratory relief is anchored on their wrongful arrest and detention by the respondents contrary to their fundamental rights as guaranteed by Sections 34, 35, 36, and 43 of the Constitution, as amended. Their second declaratory relief orbits around the illegimate demolition of their residential homes/houses in violation of their fundamental rights as entrenched in Sections 36, 43 and 44 of the Constitution, as amended. Their third declaratory relief appertains to a foreclosure of their arrest and harassment in futuro. It is a classic exemplification of quiatimet remedy that is sanctioned by Section 46(1) of the Constitution, as amended. The fourth relief is weaved on a claim for compensation. That is cognisable under Section 35 (6) of the Constitution, as amended, see Jim-Jaja v. C.O.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225; FBN Plc v. A-G; Fed (2018) 7 NWLR (pt 1617) 121; Muhammed v IGP (2019) 4 NWLR (pt 1663) 492. Thus, the appellants’ claims are hinged on their rights to
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dignity of human person, personal liberty, fair hearing and acquire/own immovable property anywhere in Nigeria as enshrined in Sections 34, 35, 36, 43 and 44 of the constitution, as amended, respectively. The fundamental rights of the Nigerian citizenry are warehoused in Chapter IV which encompasses Sections 33-45 of the Constitution, as amended.
It stems from these that the appellants’ principal claims, as chronicled above, fall squarely within the commodious four walls of fundamental rights. The fifth relief is a supplication for an order of injunction. In the eyes of the law, an injunctive claim has no independent life of its own. Its success or failure is parasitic on that of the declaratory relief, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Put differently, it is bears/wears the hallmark of tributary relief that is tied to the apron strings of the main claim. A Court that is equipped with jurisdiction to hear the main claim is clothed with the vires to try the auxiliary relief and vice versa. This traces its pedigree to the Latin Maxim. Accesoruim non-ducitsedsequitussuum principale, id est, that which is incidental does not lead, but
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follows its principal, see Tukur v. Govt of Gongola State (1989) 4 NWLR (Pt.117) 517. It follows that the appellants’ claims, as amply demonstrated above, are deeply rooted in the allegation of breach of their fundamental rights. This brief legal anatomy on main and accessory claims done in due obeisance to the law, with due reverence, clearly punctures/deflates the respondents’ defeasible defence of categorisation of the appellants’ claim as incidental to fundamental rights. It is disabled from its birth.
My noble Lords, it is now settled law beyond any per adventure of doubt, that the High Court of a State and the Federal High Court share concurrent jurisdiction in matters bordering on enforcement of fundamental rights as donated and ordained in Section 46 (1) of the Constitution, as amended, irrespective of the parties therein, see Jack v. UNAM (2004) 5 NWLR (Pt.865) 208; F.U.T, Minna v. Olutayo (2018) 7 NWLR (Pt. 1617) 176. Recently, in EFCC v. Wolfgang Reinl (2020) 9 NWLR (pt. 1730) 489 at 514 and 515, the Supreme Court, per Kekere – Ekun, JSC, re-echoed the inflexible position of this law in these illuminating words:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
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…So long as the enforcement of the applicant’s fundamental right is the main claim in the suit and not an ancillary claim, the Federal High Court and State High Courts, including the High Court of the FCT, concurrent jurisdiction to entertain it. See Tukur v. Government of Gongola State (supra).
This magisterial pronouncement, which is housed in an ex cathedra authority, is another clincher that drowns the respondents’ seemingly dazzling contention on the absence of jurisdiction of the lower Court to entertain the appellants’ suit. It confirms absolutely that the lower Court is the appropriate forum competent for the determination of the appellants’ action which is anchored on the infractions of their fundamental rights.
In the interest of emphasis, a fundamental right action is peculiar and special with its own rules for its adjudication, see Onyekwuluje v. Benue State Govt., (2015) 16 NWLR (Pt. 1484) 40 per Peter-Odili, JSC. Put differently, it is to a large extent, sui generis. The jurisdiction donated to the lower Court by the prescription of Section 46 (1) of the Constitution, as amended, displayed earlier, is a
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special jurisdiction while the one under Section 251 (1) of the selfsame Constitution, as amended, is general jurisdiction. It is a notorious principle of law that where there is a special provision in a statute/legislation, a later general provision, in the same law, is not to be interpreted as derogating from what has been specially provided for individually save an intention to do so is unambiguously declared. In the Latin days of the law, it was encapsulated in the Maxims: Generali specialibus non derogrant: general things do not derogate from special things; or Speciliageneralibusderogrant- special things derogate from general one, seeSchroder & CO. v. Major & Co. Ltd.(1989) 2 SCNJ 210/(1989) 2 NWLR (Pt. 101) 1; Tukur v. Govt., of Gongola State (supra), Abubakar v. Nasamu (No. 1) 2012) 17 NWLR (Pt. 1330) 40; Adebayo v. PDP (2013) 17 NWLR (pt. 1382) 1; A-G, Lagos State v. A-G. Fed. (2014) 1 NWLR (Pt. 1412) 217; Ardo v. Nyako (2014) 10 NWLR (Pt. 1416) 591; Jombo United Co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt. 1536) 439; PDP v. Umeh (2017) 12 NWLR (Pt. 1579) 272; A.-G., Bauchi State v. A.-G., Fed (2018) 17 NWLR (Pt. 1648) 299. This ageless
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principle of law, with due reverence, exposes the poverty of the respondents’ alluring contention that the lower Court’s jurisdiction to hear fundamental right matter is fixated by its jurisdictional provision in Section 251(1) of the Constitution, as amended. It is lame.
At the foot of page 158, lines 11-19, of the record, the lower Court declared:
This matter is no doubt an application for the enforcement of fundamental rights. It is clear that the application have (sic) its roots in a dispute over land at Atinporome Community of Badagry, Lagos State, Nigeria.
It appears to be the law that where the application for the enforcement of fundamental rights have their roots in a dispute over land, subject of a State Law as in this case, the Federal High Court will have no jurisdiction to entertain the action.
In the light of the above juridical survey, done in consonance to the law, the lower Court’s ultimate proclamation/finding, with due respect, is a serious defilement of the law and assailable one. It will smell of judicial sacrilege to allow it to stand and command any validity. In the end, l have no choice than to
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resolve the sole issue in favour of the appellants and against the respondents.
On the whole, having resolved this singular issue in favour of the appellants, the fortune of the appeal is obvious. It is imbued with merit. Consequently, l allow the appeal. The judgment of the lower Court, delivered on 30th January, 2017, in suit No. FHC/L/CS/750/2016, filed by the appellants is hereby set aside. The suit is remitted to the Honourable Chief Judge of the Federal High Court of Nigeria for reassignment to another Judge for trial de novo.
The parties shall bear the respective costs they expended in the prosecution and defence of the fruitful appeal.
JAMILU YAMMAMA TUKUR, J.C.A.: I had a preview of the lead judgment just delivered by my learned brother OBANDE FESTUS OGBUINYA JCA, and I adopt the judgment as mine with nothing useful to add.
EBIOWEI TOBI, J.C.A.: I have been afforded the privilege of reading in draft the leading judgment of my learned brother, Obande Festus Ogbuinya, J.C.A. and I see no reason to disagree with my lord’s resolution on all the issues proffered by counsel representing their clients. My lord has done justice
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to this appeal and as such I have nothing more to add.
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Appearances:
O.E. Ogungbeje, Esq. For Appellant(s)
Hameed Oyenuga, Esq., Director Civil Litigation, Ministry of Justice, Lagos State, for the third and fourth respondents
No legal representation for the first and second respondents. For Respondent(s)
