OKAFOR-ONYILO v. NYSC & ORS (2020)

OKAFOR-ONYILO v. NYSC & ORS

(2020)LCN/15445(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, November 30, 2020

CA/A/376/2017

RATIO

COURT PROCEEDING: FACTORS TO BE CONSIDERED IN FOLLOWING DUE PROCESS OF THE LAW

Due process of law must be followed in every case. In doing this, regards must be had to the following:
(a) The statute establishing the Courts/Tribunal

GROUNDS OF APPEAL: WHETHER ISSUES FOR DETERMINATION MUST BE DEDUCED FROM GROUNDS OF APPEAL

An issue for determination will be deemed incompetent when it does not flow from any of the grounds of appeal, it must fall within the scope or ambit of the grounds of appeal.
An issue for determination can therefore encompass one or more grounds of appeal. In ASABORO & ANOR V. PAN OCEAN OIL CORPORATION NIGERIA LIMITED & ANOR (2005) LPELR — 5908 (CA) it was held that
“An issue for determination usually raised by one or more grounds of appeal, is a question, usually a proposition of law or of fact in dispute between the parties, necessary for determination by the Court and the determination of which will normally affect the result of the appeal. Its purpose is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity. — see OGBUAYINYA & ORS V. OKUDO & ORS (NO.2) (1990) 8 NWLR (PT. 146) 55. PER PER MOHAMMED MUSTAPHA, J.C.A.

WORDS AND PHRASES: “CONDITION PRECEDENT”

COMPETENCE OF COURT: RELEVANCE OF JURISDICTION

Jurisdiction or lack of it is always crucial in every case, not least because any decision taken without jurisdiction, no matter how well intentioned or well thought out amounts to nothing, as the absence of jurisdiction renders such decision null and void. This is more so in view of the fact that a Court cannot vest itself with jurisdiction not specifically conferred on it either by statute; see IJEBU-ODE LOCAL GOVT V. BALOGUN & CO. LTD (1991) LPELR – 1463 (SC); OLOBA V. AKEREJA (1988) 3 NWLR (PT. 84) 508; ADAH V. NYSC (2004) LPELR – 69 (SC).
In GAFAR V. GOVERNMENT OF KWARA STATE (2007) LPELR— 8073 the Supreme Court held that:
“it is settled law that Courts are creatures of statute based on the Constitution with their jurisdiction stated or prescribed therein. That being the case, it is obvious that no Court assumes jurisdiction except it is statutorily prescribed as jurisdiction cannot be implied nor can it be conferred by agreement of the parties. See ARIYO V. OGELE (1968) 1 ALL NLR 1, TIMITIMI V. AMABEBE (1953) 15 WACA 374; OSADEBE V. A- G BENDEL STATE (1991) 1 NWLR (PT 169) 525 @ 572”
The importance of jurisdiction to every case cannot then be over emphasised, as an objection to the jurisdiction of the Court, is one that touches on the competence of the Court. — OLUTOLA V. UNILORIN (2004) 18 NWLR (PT 905) 416; SPDC NIGERIA LTD V. ISAIAH & ORS (2001) LPELR – 3205; (2001) 11 NWLR (PT. 723) 168. PER MOHAMMED MUSTAPHA, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

BARTHOLOMEW OKAFOR – ONYILO APPELANT(S)

And

NATIONAL YOUTHS SERVICE CORPS 2. THE DIRECTOR – GENERAL, NATIONAL YOUTH SERVICE CORPS 3. THE DIRECTORATE, NATIONAL YOUTH SERVICE CORPS RESPONDENT(S)

MOHAMMED MUSTAPHA, J.C.A. (Delivering The Leading Judgment): This is an appeal against the judgement of Hon. Justice A. Abdu — Kafarati of the Federal High Court, Abuja judicial division, in suit No: FHC/ABJ/CS/713/2015 delivered on the 14th of February, 2017.

A brief statement of the facts of the case is as follows:
The appellant was a youth Corp member mobilised in 2008 for the Batch ‘B’ service year and was posted to Bauchi State by the 1st Respondent. The 1st respondent is the National Youth Service Corps which was established by law on the 1973.

The appellant left his place of primary assignment without first seeking permission from the 1st respondent as per the rules. Having being absent for three months, the appellant was then invited by the 1st respondent to appear before the disciplinary committee of the 1st respondent at the 1st respondent’s Bauchi State Secretariat. The appellant did not appear in person but sent a written representation wherein he disclosed that he had been absent from active service due to ill-health.

The 1st respondent after considering the letter decided that the appellant had absconded from service and consequently remobilised the appellant to Kebbi State for his National service.

Aggrieved by this decision, the appellant then approached the Federal High Court vide Originating Motion for enforcement of his fundamental Human Rights to fair hearing. He claimed the following:
i. A declaration that the purported trial of the applicant and his being found “guilty” of “absconding from the National Youth Service from December 2008” without inviting the applicant to defend himself constitutes a breach of the applicants right to fair hearing guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria, Art. 7 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act Art. 10 of the Universal Declaration of Human Rights.
ii. A declaration that the purported trial of the applicant and his being sentenced to another National Youth Service at Kebbi State without granting a hearing to the applicant constitutes a breach of the applicants right to fair hearing guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria, Art. 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and Art. 10 of the Universal Declaration of Human Rights.
iii. A declaration that a sentence passed upon the applicant based upon his activities in his efforts to save his life from imminent termination constitutes a breach of the applicant’s right to right to life guaranteed by Section 33 of the Constitution of the Federal Republic of Nigeria and Art. 4 of the African Charter on Human and People’s Right (Ratification and Enforcement) Act and Art. 3 of the Universal Declaration of Human rights.
iv. An order of this Honourable Court, bringing into this honourable Court, the proceedings and the decisions referred to above for the purpose of being quashed.
v. An order of this honourable Court quashing the proceedings of the said trial and the decisions therein contained.
vi. A declaration of this honourable Court that in the circumstance of this case that:
a. The respondent ought to pay to the applicant the total sum amounting to N60, 500.00 incurred as medical bills incurred by the applicant as a Youth Corp member, which the respondent has refused to reimburse the applicant.
b. The respondent ought to pay to the applicant, the total sum amounting to N76, 600.00 being the applicant’s monthly allowance of N9, 575.00 which was not paid to him for a period of eight months.
c. The respondent ought to pay to the applicant the total sum amounting to N48, 000.00 being the applicant’s State allowance and local government allowance due to the applicant in the respective sums of N24, 000.00 each.
vii. An order of this honourable Court directing the respondents to pay to the applicants a total sum of N50, 000, 000.00 being general and special damages for the infractions of the applicant’s fundamental rights enumerated above.
viii. And for such further order or other orders as this Court may deem fit to make in the circumstances of this case.

The respondents challenged the suit alleging that the appellant had not complied with Section 20 of the NYSC Act, which is a condition precedent that should have been fulfilled before the institution of the suit at the Federal High Court and as such, the trial Court lacked the requisite jurisdiction to entertain the case.

The trial Court declined jurisdiction, having agreed with the argument of the respondents’ that there was no cause of action due to the non-compliance with the condition precedent by the appellant.

It is that decision that has led to this appeal.
The appellant’s brief of argument settled by J. R. Nduka Esq. is dated 6th of July, 2017 and filed on the 17th of July, 2017 wherein he raised a sole issue for determination viz:
Whether assuming but without conceding, that the appellant failed to comply with the provisions of Section 20 of the NYSC Act, the Court is thereby deprived of the Jurisdiction to hear and determine the applicant’s application for the enforcement of his fundamental Rights.

The respondents’ brief of argument was settled by O. P. Omuru Esq., which was dated and filed on the 16th of August, 2017; wherein the following issues were formulated for determination by this Court:
1. Whether in view of the provisions of Section 20 of the National Youth Service Corps Act, Cap N84, Laws of the Federation of Nigeria, 2004, the trial High Court was right in law when it declined jurisdiction in this case for want of maturity and cause of action.
2. Whether, if the Court of Appeal is minded to assume the powers of the Trial High Court by virtue of Order 4, Rules 1, 2, 3 and 4 of the Court of Appeal Rules, 2016, the reliefs sought by the Appellant at the Trial Court lacked merit.

The appellant also filed an appellant’s reply brief of argument to the respondents’ brief of argument dated 4th of December, 2017 and filed on the 13th December, 2017 which was then deemed filed on the 22nd of September, 2020.

The lone issue distilled by the appellant suffices for the determination of this appeal.

ISSUE FOR DETERMINATION
Whether assuming but without conceding, that the appellant failed to comply with the provisions of Section 20 of the NYSC Act, the court is thereby deprived of the Jurisdiction to hear and determine the applicant’s application for the enforcement of his fundamental Rights.

Learned counsel for the appellant submitted that the decision of the trial judge was misconceived because Fundamental Rights Proceedings are a special type of proceeding, in a special class of their own, to be treated with due diligence, handled delicately, and that the object of fundamental rights is to provide a simple and effective process for the enforcement of fundamental rights in order to avoid the cumbersome procedure and technicalities for their enforcement under the rules of the common law or other statutory provisions. He relied on the cases of DIRECTOR OF SSS & ANOR. V. AGBAKOBA (1999) 3 NWLR (PT. 595) 314, N.U.T V. COSST. (2006) 5 NWLR (PT 974) 590 @ 610 CA.

Counsel argued further that the failure to exhaust the avenues for appeal does not affect the rights of the appellant and the protection guaranteed under Section 46(1) of the Constitution as well as fundamental rights protected by Sections 33 and 36 of the Constitution of the Federal Republic of Nigeria, Article 4 and 7 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act and Article 3 and 10 of the Universal Declaration of Human Rights.

Counsel, relying on the cases of BABARINDE V. OGUN STATE UNIVERSITY (2001) 1 CHR 156@ 165 PARAS H – 1, F.R.N. V. IFEGWU (2003) LPELR 3173 (SC) and OMONYAHUY & ORS V. IGP & ORS (2015) LPELR- 25581 (CA) argued that the Courts are important in safeguarding the fundamental rights of persons, through effective intervention whenever it is shown that such rights have been or are being threatened to be violated; thus, he contended that to suggest that the provisions of Section 20 of the National Youth Service Corp Act, Cap N84, LFN, 2004 is a bar to the enforcement of a fundamental right brought by way of the Fundamental Rights Enforcement Application does not take into account the special nature of the application, the authorities relied on, and the fact that only the High Court can address such matters relating to fundamental Human rights.

It is also the argument of counsel to the appellant that where a statute seeks to deprive a Court of the exercise of its jurisdiction on a matter, such a statute must be strictly and scrupulously construed; see O.R.L V. N.C.C. (2007) WRN (VOL. 18) 87. That the provision of Section 20 of the National Youth Service Corp Act, does not give the mandate of first reporting human rights actions to the Presidency before seeking enforcement in Court.

Counsel submitted further that the argument asserting lack of jurisdiction based upon the appellant failing to appeal to the presidency did not take into account “Exhibit G”; which is an appeal to the Minister of Youth Development. He submitted further that the Section 20 of the NYSC Act is merely directory and not mandatory, more so, where fundamental rights are involved. The only avenue for complaint is through the Fundamental Rights Enforcement Procedure) Rules. He relied on the case of UDENE V. UGWU (1997) 3 NWLR (PT. 491) 57 @20 where the Court held that the only procedure now available to a party who brings an action for the enforcement of fundamental rights is by the 1979 Rules made by the Chief Justice of Nigeria.

In conclusion, learned counsel urged this honourable Court to allow this appeal and assume the powers granted by Section 15 of the Court of Appeal Act and Order 4 of the Court of Appeal Rules, 2016 to assume the powers of the Trial High Court and grant the appellant’s prayers made to the court below.

In response, it is submitted for the respondents that the trial Court was right in its decision to decline jurisdiction for want of maturity and cause of action; ATTORNEY-GENERAL, ANAMBRA STATE V. ATTORNEY – GENERAL OF THE FEDERATION (2007) 8 MJSC 28 @ 82, PARAS A – E.

That in determining jurisdiction a Court is enjoined to look at the processes filed by the plaintiff pointing out that the bone of contention at trial was the respondents’ decision to re-mobilise the appellant to Kebbi State for National Youth Service, following their finding that the appellant absconded from service. —Pages 28 of the record of appeal.

Learned counsel further submitted that there is nothing to show that appellant is aggrieved enough to appeal to the presidency, as provided by Section 20 of the NYSC Act; and that the use of the words “any action” and “any Court of law” presupposes that the action is mandatory irrespective of the mode that is adopted in instituting an action. The non-compliance thereto was fatal to his case, as it stripped the trial Court of the requisite jurisdiction to entertain the suit. – ADESANOYE V. ADEWOLE (2000) 10 MJSC 1 @ 15, PAPRAS E – F.

It is also argued for the respondent that the appellant knew he needed to satisfy the provisions of Section 20 of the NYSC Act that is why he stated at paragraph 33 of the facts of the Application and paragraph 24 of the Affidavit in support of his application that he “promptly appealed to the honourable minister of Youth and Development as required by the Act that created the NYSC”. This appeal was done through a letter dated 27th of July, 2009 at pages 31 and 32 of the Record of Appeal.

Learned counsel to the respondent submits that the admission that the appellant appealed to minister of youth is an admission against the appellant and that no further proof is required; as what has been admitted needs no further proof. — SECTION 123 EVIDENCE ACT, 2011, RAUPH BELLO OSENI V. CHIEF LASISI BAJULU & 2 ORS (2009) 12 MJSC (PT 1) 30 @ 50, PARAS B – D AND 53, PARAS B – C; VEEPEE INDUSTRIES LIMITED V. COCOA INDUSTRIES LTD (2008) 7 MJSC 125 @ 138 – 139, PARAS G – A.

It is further submitted that the only point of divergence on the issue of non – compliance with the provisions of Section 20 of the NYSC Act is that the appeal was misdirected, as a letter to the Minister of Youth Development did not suffice as an appeal to the presidency as contemplated by Section 20 of the NYSC Act. That Section 22 of the Act cannot be interpreted to mean the Honourable Minister of Youth Development and Presidency are one and the same office, as such the trial court was right to hold that the office of the Minister of Youth and Development is not under the Presidency, as it is a ministry of its own.

That it is clear from Section 22 of the NYSC Decree No 51 of 16th June, 1993, that the definition of presidency is restricted to the Office of the President and Commander in Chief of the Armed Forces.
While referring to AMINU TANKO V. THE STATE (2009) 1-2 MJSC 209 @ 255, PARAS F – G, learned counsel submitted further that where the provisions of a statute is clear, unambiguous, and plain, it must be given its ordinary meaning. Thus, if a matter is justiciable in Nigeria, the remedies available in the domestic forum must first be exhausted; as any resort to Court action would be premature.

That the provisions of Section 20 of the NYSC Act do not foreclose one’s right of access to Court as it is only a condition precedent which was supposed to be fulfilled before the appellant resorted to court; UBWA V. BASHI (2008) 4 NWLR (1077) 303; N.U.B LIMITEDV. SAMBA PET. CO. LIMITED (2006) 12 NWLR (PT. 993) 98.
Learned counsel referred this Court to Section 315 (5)(a) of the Constitution to drive home the point that where there is non-compliance with a stipulated pre-condition, the suit instituted is in contravention of a condition precedent and is incompetent, and that any law or rules of Court that contravenes that the provisions of the Constitution shall be void to the extent of its inconsistency, which includes the Fundamental Rights (Enforcement Procedure) Rules, 2009.

That also learned counsel to the appellant wrongly interpreted the law as it applies to Fundamental Rights Enforcement Proceedings, as the provisions refer specifically to positions that are based either on locus standi or limitation statute, and do not invalidate the provisions of Section 20 of the NYSC Act; which is neither a pre-action notice or limitation statute; as such, the authorities relied upon by the appellant are not applicable to the case at hand.

Learned counsel to the respondents noted that the appellant has two grounds of appeal but that he only argued one issue based on ground one and did not formulate or argue any issue based on ground two. Learned Counsel argued further that if indeed the appellant had argued both grounds of appeal in the sole issue formulated, the appellant failed to seek the court’s indulgence to do so. That ground two of the Grounds of appeal should be considered abandoned by the appellant; and discountenanced or struck out as a consequence. – WAEC V. ADEYANJU (2008) 6 MJSC 1 @ 20 PARAS D- F.

Also that in the event this honourable Court does not strike out Ground two, then he submits that the trial Court was right in law when it held that the cause of action will not accrue until the applicant/appellant complies with the provision of Section 20 NYSC Act.

Learned Counsel urged this honourable Court not to invoke Section 15 of the Court of Appeal Act to assume the powers of the trial High Court and grant his prayers made to the Court below, because the prayer was an after-thought and did not originate from the Notice of Appeal.

He urged this Court to resolve the issue in favour of the respondents, affirm the decision of the trial Court and ultimately dismiss this appeal for lacking merit with substantial costs.

In reply it is submitted for the appellant that Section 20 of NYSC Act is neither a limitation statute nor a pre-action notice, and also that the case the respondents relied upon do not advance their argument, because an action under the Fundamental Rights Enforcement Rules is a peculiar action, considered sui generis.

That it is misconceived to assume that the words “any action” and “any court of law” used in Section 20 of the NYSC Act do not permit any exceptions and that it is mandatory as it is settled law that where any law is inconsistent with the provisions of the Constitution that other law shall to the level of its inconsistency be void; therefore, as far as Section 20 purports to touch on fundamental rights, then Section 20 of the NYSC Act is null and void.

That the learned counsel to the respondents’ argument that the appellant failed to formulate an issue for determination on ground two of the grounds of appeal is misconceived as the distinction between grounds of appeal and issues for determination is that, the grounds of appeal accentuates the defects in the judgement sought to be set aside while issues for determination accentuate the crux of the reasons encompassing one of more grounds of appeal. — ONIAH V. ONYIA (1989) 1 NWLR (PT 99) 514 @ 516 and OYEKAN V. CHRISMATEL SHIPPING CO LTD (2001) 8 NWLR (PT. 716) PAGE 685; and that the sole issue raised covers the complaints stated in the grounds of appeal.

RESOLUTION:
Jurisdiction or lack of it is always crucial in every case, not least because any decision taken without jurisdiction, no matter how well intentioned or well thought out amounts to nothing, as the absence of jurisdiction renders such decision null and void. This is more so in view of the fact that a Court cannot vest itself with jurisdiction not specifically conferred on it either by statute; see IJEBU-ODE LOCAL GOVT V. BALOGUN & CO. LTD (1991) LPELR – 1463 (SC); OLOBA V. AKEREJA (1988) 3 NWLR (PT. 84) 508; ADAH V. NYSC (2004) LPELR – 69 (SC).
In GAFAR V. GOVERNMENT OF KWARA STATE (2007) LPELR— 8073 the Supreme Court held that:
“it is settled law that Courts are creatures of statute based on the Constitution with their jurisdiction stated or prescribed therein. That being the case, it is obvious that no Court assumes jurisdiction except it is statutorily prescribed as jurisdiction cannot be implied nor can it be conferred by agreement of the parties. See ARIYO V. OGELE (1968) 1 ALL NLR 1, TIMITIMI V. AMABEBE (1953) 15 WACA 374; OSADEBE V. A- G BENDEL STATE (1991) 1 NWLR (PT 169) 525 @ 572”
The importance of jurisdiction to every case cannot then be over emphasised, as an objection to the jurisdiction of the Court, is one that touches on the competence of the Court. — OLUTOLA V. UNILORIN (2004) 18 NWLR (PT 905) 416; SPDC NIGERIA LTD V. ISAIAH & ORS (2001) LPELR – 3205; (2001) 11 NWLR (PT. 723) 168.

A careful perusal of the grounds of appeal and briefs of arguments of both counsel in this case shows that the main grouse is not really about whether the fundamental right of the appellant was breached or infringed upon, but rather it borders on whether or not the said infringement is actionable since there is a condition precedent by virtue of Section 20 of the NYSC Act.

A condition precedent is one which delays the vesting of a right until the happening of an event; see PRINCE J.S ATOLAGBE & ANOR V. ALHAJI AHMADU AWUNI & ORS (1997) LPELR – 593 – SC, and ADEIGBE & ANOR V. KUSIMO & ANOR (1965) NMLR 284 it was held:
“A Court is competent when 1… 2…
3. The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction…” see also TELIAT A.O. SULE V. NIGERIAN COTTON BOARD (1985) LPELR – 3124 (SC)
Now, where a condition precedent is ordered to be fulfilled before a litigant is entitled to sue, failure to satisfy such a condition renders the action incompetent, as the Courts cannot ignore such a condition precedent. This is informed by the fact that a condition precedent is a key component of jurisdiction that should not be toyed with or taken lightly as it affects the core of the matter or suit as the case may be.
It is contended for the respondents that by virtue of Section 20 of the NYSC Act, there was a condition precedent that ought to have been fulfilled by the appellant before recourse is had to the Court, that failure to fulfil the condition precedent in this case rendered the suit premature and therefore not ripe for hearing. This indeed is the position of the law. For the avoidance of doubt, Section 20 of the NYSC Act provides:
“Notwithstanding the provisions of Section 19 of this Act any person aggrieved by any decision of the Directorate or by the exercise by the Directorate of any power under this Act shall have the right of appeal to the presidency in the first instance and the Presidency may, notwithstanding anything to the contrary to this Act and subject to the approval of the National Defence and Security Council confirm or reverse the decision of the Directorate or take such further measures in relation to the appeal as he may think just before any action may be commenced in any Court of law in Nigeria.”
This provision of the law is clearly a condition precedent to the commencement of an action in a Court of law; with all due respect learned counsel to the appellant clearly misinterpreted this provision by contending that failure to exhaust avenues for appeal as provided by Section 20 of the NYSC Act does not affect the appellant’s right to institute a Fundamental Rights Enforcement Procedure action, as protection is guaranteed under Section 46(1), 33 and 36 of the 1999 Constitution, Article 7 and 4 of the African Charter, and Universal declaration of Human Rights Article 3 and 10.
I do not share this view, because in principle, Section 20 of the NYSC Act simply seeks to resolve grievances one may have against decisions of the Directorate before recourse is had to Court.
Also worthy of note is the fact that the appellant had indeed written a letter in an attempt to comply with the provisions of Section 20. However, that letter was channelled or directed at the wrong recipient. What the appellant should have done, in my opinion, was simply to write another letter, addressed and sent to the appropriate authority, before having recourse to Court.
This would have satisfied Section 20 of the NYSC Act, and saved both parties from unnecessary litigation. I do not agree in the least that Section 20 of the NYSC Act seeks to foreclose the appellant’s right to pursuance of the enforcement of his fundamental human rights, because the intention behind the promulgation of Section 20 is clearly to resolve whatever grievance the complainant may have, failing which the complainant then has a right to seek redress in Court.
It is very important not to lose sight of the fact that the NYSC is almost a paramilitary organisation of sorts with its rules of discipline as in all such institutions. Once a youth signifies his intention to perform the national service, by signing an undertaking, the expectation is that he has to abide by those rules and regulations. No one is compelled to undertake national service, in the sense that one is at liberty at any point in time to disengage without being prosecuted. But once one decides to participate, he cannot be heard to complain about the rules, as in this case.
The Fundamental Rights Enforcement Procedure Rules cannot take precedence over the NYSC Act, an Act of National Assembly provided for in the Constitution. The Fundamental Rights Procedure Rules, like any rules of Court, are rules of procedure, which do not by themselves confer jurisdiction, but only regulate the exercise of jurisdiction – See CLEMENT v. IWUANYAWU (1989) 4 S.C. (PT. 11)
On the authorities relied upon by Learned counsel to the appellant, they do not support the case of the appellant to drive home their point. It is my opinion that they do not support the case of the appellant.
Counsel to the respondent has argued that the appellant was wrong to have raised or distilled a single issue for determination from the two grounds of appeal raised. It is the position of the law that issues for determination must as a necessity flow from or relate to the grounds of appeal filed and no more. — KALU V. ODILI (1992) NWLR (PT 340)
An issue for determination will be deemed incompetent when it does not flow from any of the grounds of appeal, it must fall within the scope or ambit of the grounds of appeal.
An issue for determination can therefore encompass one or more grounds of appeal. In ASABORO & ANOR V. PAN OCEAN OIL CORPORATION NIGERIA LIMITED & ANOR (2005) LPELR — 5908 (CA) it was held that
“An issue for determination usually raised by one or more grounds of appeal, is a question, usually a proposition of law or of fact in dispute between the parties, necessary for determination by the Court and the determination of which will normally affect the result of the appeal. Its purpose is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity. — see OGBUAYINYA & ORS V. OKUDO & ORS (NO.2) (1990) 8 NWLR (PT. 146) 55
Even though the appellant failed to formulate any issue on ground two, the sole issue covered ground two as well. The appellant ought to have tied it up but that failure cannot lead to abandonment of ground two.
It is the considered opinion of this Court that the failure of the appellant to satisfy the condition precedent as provided by Section 20 of the NYSC Act rendered his application for fundamental rights enforcement premature and not ripe for adjudication in a Court of law.
The position of this court, and indeed the Supreme Court in recent times is that Chapter IV of the 1999 Constitution, as amended protects individuals and ensures that there is no breach or continued infringement of an individual’s fundamental human rights. However, in the instant case, it is my opinion that the appellant’s case before the trial Court was incompetent for not satisfying a condition precedent that would have given rise to an otherwise actionable cause of action. For this reason, I resolve the sole issue for determination in favour of the respondents, against the appellant. The judgement of the trial Court is hereby affirmed. This appeal fails for lack of merit and is hereby dismissed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

Parties to bear their respective costs.

STEPHEN JONAH ADAH, J.C.A.: I have read in draft the judgment just delivered in Court by my learned brother, Mohammed Mustapha, JCA.
I am in complete agreement with the reasoning and the conclusion that this appeal lacks merit and ought to be dismissed. In our law, it is trite that a Court is competent when:
1. It is properly considered as regards number and qualifications of the members of the bench and no member is qualified for one reason of 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 fulfilment of any condition precedent to the exercise of jurisdiction.
See: Madukolu v. Nkemdilim (1962) LPELR – 24023 (SC) and Ohakim v. Agbaso (2010) 19 NWLR (Pt. 1226) 172, 243 – 244.
Due process of law must be followed in every case. In doing this, regards must be had to the following:
(a) The statute establishing the Courts/Tribunal

(b) The subject-matter of litigation.
(c) The litigation parties.
(d) The procedure by which the case is initiated.
(e) Proper service of process.
(f) Territory where the cause of action arose or, as the case may be, where the defendant resides.
(g) Composition of the Court/ Tribunal.
In the instant case, Section 20 of the NYSC Act, which is a condition precedent was not complied with. The lower Court was therefore, right to decline jurisdiction. I therefore, align myself with my learned brother in the lead judgment and I dismiss this appeal.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; MOHAMMED MUSTAPHA, JCA. I agree with the reasoning, conclusion and orders therein.

Appearances:

Y. K. Nduka For Appellant(s)

O. P. Onuru For Respondent(s)