LORD AMEN OSUNDE & ANOR v. NASIRU SHAIBU BABA (2014)

LORD AMEN OSUNDE & ANOR v. NASIRU SHAIBU BABA

(2014)LCN/7291(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of June, 2014

CA/B/338/2010

RATIO

COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION TO A PROCEEDING AND THE CONDITIONS THE COURT MUST SATISFY BEFORE IT CAN BE SAID TO HAVE JURISDICTION

I wish to start at the point that jurisdiction is a radical and crucial question of competence. A defect in competence is offensive, fatal to adjudication and renders the entire proceeding, trial and findings invalid, null and void ab initio however brilliantly they must have been conducted and concluded. This is a settled principle of the law as enunciated in a plethora of cases. Babington Ashaye v. E.M.A.G Ent. (Nig) Ltd (2011) 10 NWLR (pt. 1256) 479 at 523; Njikoye v. MTN Nig Communication Ltd. (2008) 9 NWLR (Pt. 1092) 339; Ezenwosu vs. Ngonadi (1988) 3 NWLR (Pt. 81) 163.
In the case of Madukolu vs. Nkemdilim (1062) 2 SCNLR 341, the Supreme Court laid down the rule in that before a court of law can be said to have and to assume jurisdiction in a matter, the following ingredients must be shown to exist.
“(a) it must be properly constituted as to the number or of its membership;
(b) any condition precedent to its exercise of jurisdiction must have been fulfilled;
(c) the subject matter of the case must be within its jurisdiction; and
(d) the case or matter must have been brought to the court by the due process of the law.” per. HAMMA AKAWU BARKA, J.C.A.

COURT: JURISDICTION; WHAT THE COURT MUST EXAMINE WHEN THE ISSUE OF JURISDICTION IS RAISED

It is trite that when the issue of jurisdiction is raised, the court carefully examines the writ of summons and the statement of claim to see whether it has the requisite jurisdiction to entertain and to determine the matter Obieweubi vs. CBN (2011) 7 NWLR (Pt. 1247) 465 at 507; Tukur v. Govt of Gongola State (1989) 4 NWLR (Pt. 117) 517; Adeyemi v. Opeyori (1976) 9 – 10 SC 31. per. HAMMA AKAWU BARKA, J.C.A.

COURT: JURISDICTION; WHAT IS A HIGH COURT UNDER THE CONSTITUTION AND WHETHER THE FEDERAL HIGH COURT AND THE STATE HIGH COURT HAVE CONCURRENT JURISDICTION TO ENTERTAIN ISSUES BORDERING ON FUNDAMENTAL HUMAN RIGHTS

As to what is a high court, with in the contemplation of S. 46 of the constitution, the learned counsel to the respondent concedes to the fact that the word high court, relates to the federal high court and the state, high court, and both have jurisdiction to entertain matters under the section. 1 must say that he is very correct. The Apex court interpreting S.42 of the 1979 constitution, which is in pari material with S. 46 of the 1999 constitution, said,
“Now to deal with provisions in the constitution to which section 230 is subject, I am aware of only two sections dealing with such reservation; they are S.42 of the constitution which prescribed that a high court in a state may deal with matters under Chapter IV of the constitution… a high court in a state will include both the federal high court, and the state high court.”

This is the position echoed in the case of Jack v. UNAM (supra) at page 229,
“This provision was interpreted by this court in Bronik motors limited v. Wema bank limited (1983) 1 SCNLR 296 and Tukur v. Government of Gongola State (1989) 4 NWLR (pt 117) 517 to the effect that where both the state high court and the federal high court exist in a state, they have concurrent jurisdiction in matters pertaining to fundamental human rights.” See also S.1 (2) of the Fundamental human rights (enforcement procedure) rules 2009.

There is no dispute even in the present contest as to whether the federal high court and the state high court have concurrent jurisdiction to entertain issues bordering on fundamental human rights, I understand the vexed issue as to whether the federal high court has jurisdiction on all matters relating to fundamental human rights. The respondents hold tenaciously to this position, relying on the holding of the Supreme Court in Jack v. UNAM (supra) at page 229, paragraph C – E, refusing to yield to the courts position in the case of Adetona v. I.G. Ent. Ltd (2011) 7 NWLR (pt 1247) 535 at 564 per I.T. Muhammad JSC,
“Although, unlike the 1979 constitution S.318 (1) of the present constitution does not define “High Court”, there is no doubt that the term carries the same meaning as given by section 277(1) of the 1979 constitution to mean federal high court or the high court of a state. Therefore it is my understanding that where a persons fundamental right is breached, being breached or about to be breached, that person may apply under S46 (1) to the judicial division of the federal high court in the state or the high court of the state or that of the federal capital territory in which the breach occurred or is occurring or about to occur. This is irrespective of whether the right involved comes within the legislative competence of the federation or the state or the federal capital territory. See the case of Minister of internal affairs v. Shugaba (1982) 3 NCLR 915. It has to however be noted that the exercise of this jurisdiction by the federal high, court, is where the fundamental right threatened or breached falls within the enumerated matters on which that court has jurisdiction. Thus fundamental rights arising outside its jurisdiction cannot be enforced by the federal high court. See Tukur v. Government of Gongola State (1989) 3 NSCC 225.
Equally, a high court of a state shall lack jurisdiction to entertain matters of fundamental human rights,although brought pursuant to S.46 (2) of the constitution where the alleged breach of such matters arose from a transaction or subject matter which fall within the exclusive jurisdiction of the federal high court as provided by Section 251 of the constitution. per. HAMMA AKAWU BARKA, J.C.A.

COURT: JURISDICTION; THE DEFINITION OF JURISDICTION

Now, jurisdiction means the authority which a court has to decide matters before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority which may be territorial or as to the subject matter are imposed by the statute under which the court is constituted, and may be extended or restricted by like means. See ARJAY LTD vs. AIRLINE MANAGEMENT SUPPORT LTD (2003) 5 MJSC 1 at 35A – B. Jurisdiction has also been defined as the limits imposed on the power of a validly constituted court to hear and determine issues between persons seeking to avail themselves of its process by reference to the subject matter of the issues or to the persons between whom the issues are joined or to the kind of relief sought: OBIUWEUBI vs. CENTRAL BANK OF NIGERIA (2011) LPELR (2185) 1 at 42. Per. UGOCHUKWU ANTHONY OGAKWU, JCA.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

1. LORD AMEN OSUNDE
(For himself and on behalf of Edo State Petroleum Monitoring Committee)
2. HON. ATTORNEY – GENERAL, EDO STATE Appellant(s)

AND

NASIRU SHAIBU BABA Respondent(s)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, sitting in Benin City in suit No. FHC/B/CS/301/2009, delivered on the 12th of March, 2010, dismissing the appellants preliminary objection, and granting the claim of the plaintiffs. The facts that gave rise to this appeal are as follows:-
The respondent who was the plaintiff at the court below, instituted an action against the appellants by way of an originating motion on notice for the enforcement of his fundamental right to liberty, fair hearing and dignity of human person under the Fundamental Rights (Enforcement Procedure) Rules, 2009.

The motion was supported by a 27 paragraph affidavit deposed to by Mr. Nasiru Shaibu Baba, the appellant, a verifying affidavit deposed to by the same Nasiru Shaibu Baba, a written statement and counsel’s written address. Hinged on the motion paper is Exhibit ‘A’, a document titled “Testing of flow meter pumps at filing/service stations with unapproved instrument by Edo Sate Task Force on Petroleum Monitoring Committee”, dated the 18th of June, 2009.

Reacting to the application filed, the appellants with the leave of court filed a joint counter affidavit of 16 paragraphs deposed to by Clifford Odio a member and legal Adviser to the Edo State Petroleum Task Force Monitoring Committee (the appellants), a preliminary objection challenging the jurisdiction of the court and the learned counsel’s written address.

Both counsel adopted their written addresses, and after considering the arguments of counsel, the learned trial Judge on the 12th of March 2010 overruled the preliminary objection, and entered judgment in favour of the respondent.
Aggrieved with the decision of the lower court, the appellants filed a notice of appeal dated the 11th day of May, 2010, seeking for an order setting aside the judgment being appealed from in its entirety.

On the 21/5/2014, V.U. Adeleye learned counsel for the appellants adopted the brief of argument he had filed and settled on the 13/6/2012. In the brief the learned counsel had distilled a single issue for the courts determination:
“Whether the learned trial Judge was right, when he held that the State High Court and Federal High Court have concurrent jurisdiction in all matters of enforcement of fundamental human rights and therefore assumed jurisdiction over the suit notwithstanding the parties and the subject matter of the suit.”

For the respondent, learned counsel, on its behalf adopted a brief of argument settled by K. O. Obamagie, and dated the 22/1/2013, but deemed filed on the 28/4/2014, wherein a single issue was also distilled for determination:
“Whether, the learned trial judge was right when he held that he had jurisdiction to hear respondents’ claim.”

Indeed the issues raised are one and the same thing; I intend to approach, the resolution of the arguments on the basis of the issue formulated by the appellants.

Learned counsel concedes that the Federal High Court and the State High Court have concurrent jurisdiction to entertain fundamental human right case raised but contend that in assuming jurisdiction the court must have jurisdiction over the subject matter as well as over the parties.

Jurisdiction, he argues is fundamental to adjudication as any exercise without it is a nullity. He contends that it is the conduct of the Edo State Petroleum Monitoring Committee that led to this suit i.e. false imprisonment, wrongful arrest and detention well outside the purview of matters for which the federal High Court has jurisdiction. He argues still that to assume jurisdiction over fundamental human right issues, the breached or threatened right must fall within the provision of S. 251 of the 1999 Constitution of the Federal Republic of Nigeria. On this, counsel relies on the book, The Practice and Procedure of the Federal High Court with Investment and Securities Tribunal and the National Industrial Court by Sir T.A. Nwamara; and the case of Tukur vs. Gov. of Gongola State (1989) 4 NWLR (Pt. 117) at 517 and Okoruma v. Uba (1999) 1 NWLR (Pt. 587) 359 at 364 – 365.

Counsel examined the power conferred on the Federal High Court by S. 251, of the constitution against the back drop of the present case, and argues that the arrest and detention of the respondent was unlawful making it a simple case of the tort of false imprisonment for which the State High Court has exclusive jurisdiction. On this counsel seeks the support of the decision of Prince Adul Adetona vs. Igele General Enterprises Ltd. (2011) 7 NWLR (pt. 1247) 635 at 571.

Learned counsel is of the opinion that the case of Jacks vs. U.N.A.M (2004) 5NWLR (pt 865) 208, does not change the decision expressed in Tukur’s case as well as the case of Prince Abdul Adetona (supra).

Making inference, to the age old case of Madukolu vs. Nkemdilim (1962) 2 SCNLR 341, counsel concluded by saying that the actions falls outside the ambit of the Federal High Court and the decision and Order made by the court was without jurisdiction.

Arguing his lone issue, the respondents referred to pages 2 – 19 of the record containing the action of the court below, leading to the present appeal and submits that the Supreme Court in the case of Jack vs. University of Agric Makurdi (2004) 5 NWLR (pt. 865) 208 settled the issue to the effect that the State High Court and the Federal High Court have concurrent jurisdiction on matters bordering on enforcement of fundamental rights pursuant to S. 46 of the constitution of the Federal Republic of Nigeria, 1999 (as amended).

Counsel referred to the interpretation of S. 42 (1) of the 1979 Constitution now S. 46(1) of the 1999 Constitution in the case of Bronik Motors Ltd vs. Wema Bank Ltd (1983) 1 SCNLR 296 and Tukur v. Government of Gongola State (supra), which decided that the two courts have concurrent jurisdiction. The definition of court is that under O.1 R 2 of the Fundamental Rights (enforcement procedure) Rules, 2009 and the case of Jack vs. University of Agriculture, Makurdi was re-inforced in the latter case of Adetona vs. I.G. Enterprises Ltd. (2011) 7 NWLR (Pt. 1247) 635 at 564.

Counsel goes on to argue that in view of the Supreme Court decision in Jack vs. University of Agriculture Makurdi (supra) the status of the party is irrelevant, and contends that the case is not founded on the tort of false imprisonment as alleged going by the originating summons and the reliefs being claimed. He goes on to say that the case of Prince Adul Adetona v. Igele General Ent. Ltd. (2011) 7 NWLR (Pt. 1247) 635 which relates purely to landlord and tenant relationship does not help the appellant.

On the 2nd and 3rd grounds of appeal filed, counsel relies on the case of Haruna vs. KSHA (2010) 7 NWLR (Pt. 1194) 604 at 633 as well as the case of Imasuen vs. University of Benin (2010) 3 NWLR (Pt. 1182) 591 at 601 to canvass that the two grounds have been abandoned.

The issues raised by the appellants and the respondents counsel in their briefs of argument are not dissimilar. I am minded to adopt the issue as raised in the appellants brief of argument in the consideration of this appeal.

There is no gain saying that the respondent’s action was commenced by way of an originating motion taken under section 34(1), 35(1), 36(1) and 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 and O. 11 Rules 1, 2, 3, 4 and 5 of the Fundamental Rights (Enforcement Procedure) Rules, 2009. The sections of the constitution set out deals with the right to liberty, fair hearing and the dignity of the human person. Paragraphs 12 to 20 of the supporting affidavit bear the crux of the respondent’s complaint at the court below. I reproduce them.

“12. That the 1st Respondent took me by force to Government house and he threatened to detain me if I do not pay the sum of N50, 000.00 (Fifty thousand naira) bribe to him.
13. That the 1st Respondent ordered me to sit on the bare floor of his office and thereafter released me after two hours saying I should come and pay the money the following day.
14. That as the 1st Respondent was with all manner of thugs I was constrained to obey him by sitting on the bare floor of his office.
15. That the following day the 1st Respondent sent his agents twice to come and collect the money from me and said if I do not pay he would release the video he recorded the previous day to Edo State Broadcasting Service to broadcast in order to blackmail and blacklist me.
16. That on 23rd November, 2009 at 5pm, the 1st Respondent dispatched his agents to my aforesaid station to arrest and take me to Government House, G.R.A, Benin City to meet with him.
17. That when I got to Government house, I met with the 1st Respondent, who said that I had defaulted in paying N50,000.00 (Fifty thousand naira) bribe and must therefore to into detention.
18. That I was detained in Quarter Guard cell at Government House, Benin City from 6pm on 23rd November, 2009 to 3pm on 24th November, 2009.
19. That whilst in detention, no statement was taken from me and I was not told what I had done wrong other than my refusal to pay the said N50, 000.00 (Fifty thousand naira) bribe.
20. That I was released after a delegation of Independent Petroleum Marketers Association of Nigeria (IPMAN) led by Mr. A.T. Abu came to Government house to protest my unlawful detention.

From these averment of facts, the respondent sought for the following reliefs.
“(a) A declaration that the arrest and detention of the Applicant by the 1st Respondent on 23rd November, 2009 at Quarter Guard cell, Government House, Benin City is unlawful and violative of the Applicant’s fundamental right to liberty as guaranteed by section 35(1) of the Constitution of the Federal Republic of Nigeria, 1999.
(b) A declaration that the inhuman treatment meted to the Applicant by the 1st Respondent by asking him to sit on the bare floor of his office at Government House, Benin City on Monday, 16th November, 2009 is a violation of Applicant’s right to human dignity as guaranteed by section 34(1) of the Constitution of the Federal Republic of Nigeria, 1999.
(c) A declaration that the constitution and/or establishment of the Edo State Petroleum Task Force Monitoring Committee by Edo State Government is unconstitutional, illegal and violative of the Provisions of the Petroleum Act, Cap. P10, Laws of the Federation of Nigeria, 2004 and the regulations made thereunder and Article 22 and 24 of African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap. A9, Laws of the Federation of Nigeria, 2004.
(d) The sum of N10,000,000.00 (Ten million naira) being general, damages for 1st Respondent’s violation of Applicant’s fundamental right to dignity of the human person, liberty and fair hearing guaranteed by Sections 34(1), 35(1) and 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 on Monday, 16th November, 2009 and 23rd – 24th November, 2009 respectively.
(e) An order directing the 1st Respondent to tender an unreserved written apology to the Applicant for his unlawful violation of Applicant’s fundamental right to human dignity on 16th November, 2009 and Applicant’s right to liberty on 23rd – 24 November, 2009.
(f) An order of perpetual injunction restraining the Respondents, their servants, agents, employees and subordinates from further detaining the Applicant in violation of his guaranteed fundamental human rights enshrined in sections 34(1), 35(1) and 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.

The applicants at the lower court filed a notice of preliminary objection dated the 11th of February, 2010 and filed the next day being the 12th of February, 2010. At pages 25 to 31, the learned respondents filed a written address urging upon the Federal High Court to decline jurisdiction upon reasons stated in the address.

The learned trial judge in considering whether he had jurisdiction or not from pages 47 – 50 of the record, went back to history, beginning with the decision in Bronik Motors Ltd vs. Wema Bank (1983) 1 SCNLR 296, and the case of Tukur v. The Govt of Gongola State (1989) 4 NWLR (Pt. 117) 517, and concluded that the recent case of Jack vs. Unam (2004) 5 NWLR (Pt. 865) 208 settled the position, and concluded, that the Federal High Court had jurisdiction in the circumstance to entertain the matter.

The main issue to my mind in respect of the appeal is whether the Federal High Court had jurisdiction to entertain the respondent’s case at the court below.

The present action having been fought on affidavit evidence, the court will have to fall back on the affidavit in support of the originating process to determine whether it had jurisdiction or not.
Looking critically at the supporting affidavit, the subject matter of the litigation giving rise to this appeal relates to the arrest, detention and humiliation allegedly meted out to the respondent by the appellants. For a clear appreciation of the wordings of S. 46(1) of the Constitution of the Federal Republic of Nigeria, 1999, it is expedient to reproduce them;
46 (1) any person who alleges that any of the provisions of this chapter 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.

(2) subject to the provisions of this constitution, a high court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such order, issue such writs, and give such directions, as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any right to which the person who makes the application may be entitled under the chapter.

(3) The Chief justice of Nigeria may make rules with respect to the practice and procedure of a high court for the purposes of this section.

I am in agreement with the appellants that the subject matter of the instant case does not fall within those matters captured by S 251 of the constitution. It is apparent that the appellants are agents of the state government, the wrong alleged against them, was in pursuance of the duty reposed on them by the state. I understand the grouse of the respondent, as having been arrested, detained and humiliated without cause, thus infringing his fundamental rights as a case of the tort of unlawful arrest and false imprisonment, as ably argued by the appellants. I equally agree with the appellants that this falls within the exclusive purview of the state high court, the learned trial judges holding to the effect that he had jurisdiction to try the instant case, was made in error and I so hold.

It has been argued and rightly too, that the appellant did not raise any issue in respect of grounds 2 and 3, and that arguments were not made in respect of the two grounds, the consequence of which it should be deemed as having been abandoned. I totally agree with the respondent, that the two grounds having been made a non issue are deemed abandoned, and therefore discountenanced.

Having resolved the sole issue in favour of the appellant, the appeal succeeds, and it is hereby allowed. The decision of the Federal High Court, Benin City delivered on the 12th of March 2010 is hereby set aside being a nullity.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother, HAMMA AKAWU BARKA, JCA. I am in complete agreement with his reasoning and conclusion that this appeal should be allowed. I will add a few words.

The Respondent’s fundamental rights were alleged to have been infringed upon by the 1st Appellant, an agent of the Edo State Government in pursuance of the latter’s work in monitoring sale of petroleum products. The Edo State Petroleum Monitoring Committee was set up by the Edo State Government, which made the 2nd Appellant a party. The Respondent commenced fundamental human rights proceedings against the Appellants at the Federal High Court sitting in Benin. The vexed question here is whether that court has the jurisdiction to entertain the claims of the Respondent as constituted at the trial court.

The position of the Appellants is that in the circumstances of this case, only the State High Court has jurisdiction to entertain the fundamental human rights proceedings relating to violations of the rights of the Respondent by an agent of the Edo State Government. The argument of the Respondent is that since the term “a High Court in a State” includes both the State High Court and the Federal High Court within a State’s territorial jurisdiction, then the fundamental human rights proceedings was rightly commenced at the Federal High Court sitting in Benin. Needless to say, that was the position of the Supreme Court in Jack v. UNAM (2004) 5 NWLR Pt. 865 Pg. 208 at 226 when Katsina-Alu JSC (as he then was) stated generally that a State High Court has concurrent jurisdiction with the Federal High Court in matters of enforcement of a person’s fundamental rights provided for in Chapter IV of the Constitution.
The Supreme Court in Jack v. UNAM also established a dichotomy in relation to the fact that jurisdiction is derived from the subject matter of the dispute. Even though the Supreme Court allowed the appeal in that case, it struck out the case at the trial court because the cause of action was a breach of contract and not violation of the fundamental human rights of the Appellant. In Adetona & ors. v. I.G. Enterprises Ltd. (2011) 7 NWLR pt. 1247 pg. 535 at 564, Muhammad JSC, who delivered the lead judgment apparently enlarged the position of the Supreme Court on the matter. Their Lordships were of the view that a State High Court has jurisdiction in all fundamental human rights cases irrespective of whether the right involved comes within the legislative competence of the Federation or the state or the FCT. I.T. Muhammad JSC stated at Pg. 554 as follows:
“It has to however be noted that the exercise of this jurisdiction by the Federal High Court is where the fundamental right threatened or breached falls within the enumerated matters on which that court has jurisdiction. Thus fundamental rights arising outside its jurisdiction cannot be enforced by the Federal High Court. See Tukur v. Government of Gongola State (1989) 3 NSCC 225. Equally, a High Court of a State shall lack jurisdiction to entertain matters of fundamental human rights, although brought pursuant to S.46(2) of the constitution where the alleged breach of such matters arose from a transaction or subject matter which fall within the exclusive jurisdiction of the Federal High Court as provided by s.251 of the constitution.” (Underlining Mine)

Thus the issue of who has jurisdiction between the State and Federal High Court is only circumscribed by the exclusive jurisdiction of the Federal High Court in matters provided under S. 251 of the constitution. By the doctrine of stare decisis, we are obliged to shift our position to the one postulated by the Supreme Court on this issue.

In the circumstances of this case, the alleged breach of his rights complained of by the Respondent being committed outside the purview of S.251 of the constitution by agents of Edo State Government, the Federal High Court lacked the jurisdiction to entertain the action. The suit is struck out for want of jurisdiction of the Federal High Court. The decision of Hon. Justice M.B. Idris J. in FHC/B/CS/301/2009 delivered on 12/3/2010 is hereby set aside. Appeal Allowed.
I abide by the order as to costs in the lead judgment.

UGOCHUKWU ANTHONY OGAKWU, JCA: I had a preview of the judgment just delivered by my learned brother, HAMMA AKAWU BARKA, JCA. He assiduously considered and painstakingly examined the facts and issues involved in this matter. I agree with his reasoning and conclusion that the appeal is meritorious and ought to be allowed. I only wish to add a few words of mine by way of emphasis since the appeal involves the recurrent problem of the jurisdiction of the Federal High Court vis-a-vis the High Court of a State.

This appeal is against the decision of the Federal High Court, Benin Division delivered on 12th March 2010. In an application for the enforcement of fundamental rights, the Respondent herein, as the Applicant before the lower court claimed the following reliefs:
“(a) A declaration that the arrest and detention of the Applicant by the 1st Respondent on 23rd November, 2009 of Quarter Guard cell, Government House, Benin City is unlawful and violative of the Applicant’s fundamental right to liberty as guaranteed by section 35(1) of the Constitution of the Federal Republic of Nigeria, 1999.
(b) A declaration that the inhuman treatment meted to the Applicant by the 1st Respondent by asking him to sit on the bare floor of his office of Government House, Benin City on Monday, 16th November, 2009 is a violation of Applicant’s right to human dignity as guaranteed by section 34(1) of the Constitution of the Federal Republic of Nigeria, 1999.
(c) A declaration that the constitution and/or establishment of the Edo State Petroleum Task Force Monitoring Committee by Edo State Government is unconstitutional, illegal and violative of the provisions of the Petroleum Act, Cop. P10, Laws of the Federation of Nigeria, 2004 and the regulations made thereunder and Article 22 and 24 of African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. A9, Laws of the Federation of Nigeria, 2004.
(d) The sum of N10, 000,000.00 (Ten million naira) being general damages for 1st Respondent’s violation of Applicant’s fundamental right to dignity of the human person, liberty and fair hearing guaranteed by Sections 34(1), 35(1) and 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 on Monday, 16th November, 2009 and 23rd – 24th November, 2009 respectively.
(e) An order directing the 1st Respondent to tender an unreserved written apology to the Applicant for his unlawful violation of Applicant’s fundamental right to human dignity on 16th November, 2009 and Applicant’s right to liberty on 23rd – 24th November, 2009.
(f) An order of perpetual injunction restraining the Respondents, their servants, agents, employees and subordinates from further detaining the Applicant in violation of his guaranteed fundamental human rights enshrined in sections 34(1), 35(1) and 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.”
(See pages 9- 10 of the Records)

The Appellants herein, who were Respondents at the lower court, could not see their way clear with the jurisdiction of the lower court to entertain the matter. They consequently filed a preliminary objection challenging the jurisdiction of the lower court. In its Ruling on the preliminary objection which was taken along with the substantive application for enforcement of fundamental rights, the lower court upheld its jurisdiction and proceeded to enter its verdict in favour of the Respondent herein.

The Appellants appealed against the decision and in the briefs of argument filed by the parties, the following issues were distilled. The Appellant distilled the issue to be:

Whether the learned trial Judge was right when he held that the State High Court and Federal High Court have concurrent jurisdiction in all matters of enforcement of fundamental human rights and therefore assumed jurisdiction over the suit notwithstanding the parties and the subject matter of this suit.

In not on entirely dissimilar issue the Respondent crafted the issue for determination to be:-
“whether the learned trial Judge was not right when he held that he had jurisdiction to hear the Respondents claim.”

As already stated, this appeal has once again raised the issue of the jurisdiction of the State High Court vis-a-vis the Federal High Court. There has been a continual and recurrent jurisdictional contest between the Federal High Court and the High Court of a State right from the days of the Federal Revenue Court. In ONUORAH vs. KRPC LIMITED (2005) 6 MJSC 137 at 150, Niki Tobi, JSC referred to this contest when he stated thus:
“This appeal once more brings into the fore the jurisdictional struggle between the Federal High Court and the High Court of a State. The more the courts interpret the issue, the more cases come before the courts. And they will continue to come before the courts as long as lawyers disagree as to the real purport of the constitutional provisions in respect of the two courts.”
It is trite law that it is the claim of a plaintiff that determines the jurisdiction of a court that is invited to adjudicate in the matter. See LADOJA vs. INEC (2007) 40 WRN 1 at 37 – 38, 42 – 43 and 66, NATIONAL UNION OF ROAD TRANSPORT WORKERS vs. ROAD TRANSPORT EMPLOYERS ASSOCIATION OF NIGERIA (2012) LPELR (7840) 1 at 63 – 64 and OLORUNTOBA-OJU vs. DOPAMU (2008) 7 NWLR (PT 1085) 1 at 23.

I have already set out the reliefs claimed by the Respondent before the lower court. It seems to be the settled legal portion that both the Federal High Court and the High Court of a State have concurrent jurisdiction in actions for enforcement of fundamental rights: JACK vs. UNIVERSITY OF AGRICULTURE (2004) 5 NWLR (PT 865) 208. But there is an important caveat which I hasten to add and it is this; in the case of the Federal High Court, the subject matter of the alleged infringement of the fundamental right must fall within the enumerated jurisdiction of the Federal High Court under Section 251 (1) of the 1999 Constitution in order for the action to be validly within the jurisdictional competence of the Federal High Court. See TUKUR vs. GOVERNMENT OF GONGOLA STATE (1939) LPELR (3272) 1. The same applies with equal force to the High Court of a State; where the subject matter of an action for the enforcement of fundamental rights falls within the enumerated items in which exclusive jurisdiction has been vested in the Federal High Court by Section 251 (1) of the 1999 Constitution, then the High Court of a State will not have jurisdiction. See ADETONA vs. IGELE GENERAL ENTERPRISES LTD (2011) 7 NWLR (PT 1247) 535 at 564.

One of the reliefs claimed by the Respondent at the lower court is –
“A declaration that the constitution and/or establishment of the Edo State Petroleum Task Force Monitoring Committee by Edo State Government is unconstitutional, illegal and violative of the provisions of the Petroleum Act, Cap. P10, laws of the Federation of Nigeria, 2004 and the regulations made thereunder and Article 22 and 24 of African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. A9, Laws of the Federation of Nigeria, 2004.”
(See page 10 of the Records)

By this relief, the Respondent sought to have the Federal High Court make a declaration that an agency of the Edo State Government is unconstitutional. The glaring question is whether this comes within the provisions of Section 251 (1) of the 1999 Constitution in which exclusive jurisdiction has been vested in the Federal High Court. In this regard, I can do no better than redact the dictum of my learned brother Nweze, JCA in OLADIPO vs. NIGERIA CUSTOMS SERVICE BOARD (2009) 12 NWLR (PT 1156) 563 at 585C – F where he stated as follows:
“…the said court [Federal High Court] is a actually a court of enumerated jurisdiction, that is, a court whose jurisdiction is not only delimited by statute but whose jurisdiction is delineated in relation only to the subject matters enumerated therein.
It would, therefore, amount to wreaking havoc on the express letters and intendment of the said Section 251 to construe it as granting the said court a carte blanche to deal with every conceivable matter (that is, beyond those expressly enumerated…) that relates to a Federal agency. This cannot be so.
The effect of the circumscription of the jurisdiction of the court to those eighteen major items is that wherever the question of the jurisdiction of the court is canvassed attention ought to be focused on the subject matter of the suit. If the subject matter of the suit cannot be pitch forked into any of those eighteen major items, then that court is not the proper forum for the ventilation of the action.”
See also OLUTOLA vs. UNILORIN (2004) 18 NWLR (PT 905) 416 at 462.

Doubtless, the reliefs for the enforcement of the fundamental right to personal liberty, dignity of human person and fair hearing can be entertained by the Federal High Court. However it seems that the declaration for the agency of the Edo State Government to be declared unconstitutional cannot be pitch forked into any of those eighteen major items in which exclusive jurisdiction has been vested in the Federal High Court. The position therefore seems to be that while the Federal High Court has jurisdiction in respect of some of the reliefs, it does not have jurisdiction in at least one of the reliefs.
In addition to having jurisdiction to hear the reliefs for enforcement of the fundamental rights to personal liberty, dignity of human person and fair hearing, the High Court of Edo State would have jurisdiction to entertain the relief for a declaration that an agency of the Edo State Government is unconstitutional. It is now hornbook law since the case of TUKUR vs. GOVERNMENT OF GONGOLA STATE (supra) at 39 that where there exists a court that has the competence to hear all aspects of a matter, it would be better to approach that court rather than going to a court that only has competence in respect of some aspects of the matter. In NIGERIA TOBACCO CO. PLC vs. OSIFESO (2000) 14 WRN 37 at 47, Dalhatu Adamu, JCA stated thus:
“… I am of the view that where is a concurrence of jurisdiction between two sets of courts as in the present case and one has unlimited jurisdiction while the other has exclusive jurisdiction over the matter or subject matter of the dispute, it is preferable for the court with an exclusive jurisdiction to hear and determine such a case.”

Jurisdiction is a fundamental prerequisite in the adjudication of any matter. It is a threshold matter, the lifeline of all suits, indeed the spinal cord of a court of law: A – G OYO STATE vs. NLC (2003) 8 NWLR (PT 821) 1 at 26. Hence, where a court does not have jurisdiction to entertain a matter, the proceedings however well conducted are nullity as the defect or lack of jurisdiction is extrinsic to the adjudication: MADUKOLU vs. NKEMDILIM (2001) 46 WRN 1 at 13 and FGN vs. OSHIOMHOLE (2004) 3 NWLR (PT 860) 305 at 319D.

A court of law has no duty and indeed no power to expand the jurisdiction conferred on it, but it has a duty and indeed jurisdiction to expound the jurisdiction conferred on it. See THE AFRICAN PRESS OF NIGERIA vs. THE FEDERAL REPUBLIC OF NIGERIA (1985) 1 ALL NLR 50 at 175 or (1985) 2 NWLR (PT 6) 137 at 165 and EGBUE vs. ARAKA (2003) 9 MJSC 17 at 35. In the process of expounding the jurisdiction conferred on it, the courts have always emphasised the need to decline jurisdiction where the exercise of jurisdiction will involve issues which a court has no jurisdiction to hear and determine: ODUNSI vs. OJORA (1961) ALL NLR 283, NWAFIA vs. UBUBA (1966) NMLR 219 and TUKUR vs. GOVERNMENT OF GONGOLA STATE (supra) or 39-40.

Since it is evident that all the reliefs claimed by the Respondent were not within the jurisdiction of the Federal High Court, the lower court did not have the competence to expand its jurisdiction by entertaining the action.
In the words of Obaseki, JSC in OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 at 520:
“If a court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of time for the court to embark on hearing and determination of the suit, matter or claim… There is no justice in exercising a jurisdiction where there is none. It is injustice to the law, the court and to the parties to do so.”

I kowtow. In the light of relief (c) highlighted above the lower court ought not to have assumed jurisdiction to entertain the Respondent’s action as there existed a court, the High Court of Edo State, which had jurisdiction to entertain all the reliefs claimed.
It is for the foregoing reasons and the detailed and fuller reasons contained in the lead judgment that I join my learned brother, Barka, JCA in allowing this appeal and setting aside the decision of the Federal High Court, Benin Division delivered on 12th March, 2010 in Suit No. FHC/B/CS/301/2007 for being a nullity. I abide by the orders therein made.

Appearances

V.U. Adeleye (Mrs) Assistant Director, Public Prosecution, Edo StateFor Appellant

AND

K.O. Obamogie Esq., with S.E. Onyemendam Esq., and E.C. Umoru Esq.For Respondent