ADEOYE v. FADEYI & ORS
(2022)LCN/16008(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, June 10, 2022
CA/L/443/2016
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Between
ADEBISI O. ADEOYE APPELANT(S)
And
1. MAGISTRATE M.K.O FADEYI 2. DEPUTY COMMISSIONER OF POLICE STATE C.I.D 3. CSP ADENOLA PANTI STREET YABA 4. MAGISTRATE ADEKOMAYA 5. BARRISTER M.K.O ADEGBENRO 6. THE SECRETARY, LAGOS STATE JUDICIAL SERVICE COMMISSION 7. ATTORNEY GENERAL OF LAGOS STATE AND COMMISSIONER FOR JUSTICE RESPONDENT(S)
RATIO
THE IMPORTANCE OF JURISDICTION TO A COURT
The importance of jurisdiction cannot be over-emphasized. It is often described as the life wire of the adjudication process. Without it, every step taken in the case amounts to a nullity, no matter how well conducted and no matter how erudite the decision emanating therefrom. Reliance is placed on OGBUJI & ANOR VS AMADI (2022) LPELR-56591 (SC); UTIH VS ONOYIVWE (1991) 1 NWLR (PART 166) 206; SHITTA-BEY VS A.G. FEDERATION & ANOR (1988) 7 SC (PART 2) 121; (1998) LPELR-3055 (SC) AT 30-31 F-G; PETROJESSICA ENT LTD VS LEVENTIS TECHNICAL CO. LTD. (1992) LPELR-2915 (SC) AT 23 E-F.
In UTIH VS ONOYIVWE (SUPRA), His Lordship, Bello CJN held:
“…Jurisdiction is like the blood that gives life to the survival of an action in a Court of Law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it, would be an abortive exercise.” PER BANKKOJO, J.C.A.
THE JURISIDTION OF THE FEDERAL HIGH COURT
Now, the jurisdiction of the Federal High Court is donated by Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria. The opening part of the Section reads:
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters.”
The provision then proceeded to list Eighteen Specific Areas in Paragraphs (a) to (r) where Exclusive Jurisdiction is conferred on the Federal High Court and, it concluded in Paragraph (s), that “such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly”. The effect of this provision is that it made the Federal High Court a Court of enumerated jurisdiction, and not one of general jurisdiction, and as such for the Federal High Court to have jurisdiction over a matter, the subject matter of action must fit into one of the enumerated areas of its jurisdiction. Reliance is placed on ANAO VS SUN PUBLISHING LTD (2013) 3 NWLR (PART 1341) 399, MERILL GUARANTY SAVINGS & LOANS LTD VS WORLDGATE BUILDING SOCIETY LTD (2013) 1 NWLR (PART 1336) 581, AHMED VS AHMED (2013) 15 NWLR (PART 1377) 274. PER BANKKOJO, J.C.A.
THE POSITION OF LAW ON THE VIOLATION OF THE FUNDAMENTAL HUMAN RIGHT OF AN APPELLANT
Now, the subject matter of this suit is the alleged violation of the fundamental human right of the Appellant. Section 46(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows:
46(1): Any Person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him, may apply to a High Court in that State for redress.
(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 this Chapter.
Both the Supreme Court and this Court have judicially interpreted the above provision as seen in OLUTOLA VS UNIVERSITY OF ILORIN (2004) 18 NWLR (PART 905) 416; JACK VS UNIVERSITY OF AGRICULTURE, MAKURDI (2004) 5 NWLR (PART 865) 208; ZAKARI VS IGP (2000) 8 NWLR (PART 670) 666; AND THE NIGERIAN NAVY VS GARRICK (2006) 4 NWLR (PART 69) 69. PER BANKKOJO, J.C.A.
WHETHER OR NOT SOMETHING CAN BE ADDED TO AN ACT THAT IS VOID
It is well settled that where an act is void, it is void and nothing can be added to it. It is expressed in the Latin ex nihilo nihil fit. If an act is void, then it is in law a nullity. It is not only bad, but also incurably bad and every proceeding, which is founded on it, is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. Denning L.J. commented on this Principle of nullity succinctly in U.A.C. LTD. VS MACFOY (1961) 3 ALL E.R AT PAGE 1172. See also NZOM & ANOR VS JINADU (1987) LPELR-2143 (SC). PER BANKKOJO, J.C.A.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered by Hon. Justice C.J. Aneke of the Federal High Court, sitting at Lagos, delivered in SUIT NO: FHC/L/CS/995/2011 on the 21st day of February 2014, as seen on Pages 191-200 of the Record of Appeal.
The Appellant (as the Claimant) instituted the suit at the lower Court against the Respondents via an Application dated the 22nd August 2011 seeking for the enforcement of his fundamental rights in terms of the reliefs set out in the Statement accompanying his Application.
Facts related to the suit will hereby be summarized for the purpose of understanding the issues in this appeal. The Appellant (then Claimant) alleged at the lower Court that his arrest by the 2nd & 3rd Respondents at the instance of the 1st, 4th and 5th Respondents on the 20th January 2010 was unlawful and constituted a violation of his Fundamental Rights.
It was also the claim of the Appellant that his arraignment by the 2nd, & 3rd Respondents before the 4th Respondent’s Court on the 21st January 2010 at the instance of the 1st, 4th and 5th Respondents is unlawful and an infringement on his Fundamental Rights.
On 21st January, 2010, the Appellant having been arraigned before the 4th Respondent was granted bail but his bail was not perfected and this made the Appellant to remain in detention between 21st January 2010 and 26th January 2010 when he eventually perfected his bail. The Appellant claimed that the Respondents orchestrated his stay in detention during the above dates, and therefore, he sought the following Reliefs Suits before the Lower Court as follows: –
1. AN ORDER enforcing the Applicant’s Fundamental Rights in the manner set out in the (i) Statement of Facts, (ii) Verifying Affidavit, and (iii) the Relief sought and in the manner stated hereunder as follows:
2. A Declaration that the arrest of the Applicant by the 2nd and 3rd Respondents at the instance of the 1st, 4th and 5th Respondents on the 20th day of January, 2010 was unlawful and was a gross violation of the Applicant’s Rights as guaranteed by the Constitution.
3. A Declaration that the arraignment of the Applicant by the 2nd and 3rd Respondents before the 4th Respondent’s Court on the 21st day of January 2010 and at the instance of the 1st, 4th and 5th Respondents is unlawful and gross violation of the Applicant’s rights as guaranteed by the Constitution.
4. A Declaration that the detention of the Applicant by the 1st, 2nd, 3rd 4th and 5th Respondents from the 20th day of January 2010 to 26n day of January 2010 is unlawful and gross violation of the rights of the Applicant as guaranteed by the prosecution (sic) AND
5. Declaration that the prosecution of the Applicant by the 1st, 2nd, 3rd 4th and 5th Respondents, from the 21st day of January 2010 until July 2010, when the case was removed from the 4th Respondent, is unlawful and a gross violation of the rights of the Applicant as guaranteed by the Constitution.
6. (1) Claim for N2billion Substantial/Exemplary Damages against the Respondents jointly and severally for unlawful arrest on the 20th day of January 2010.
(2) N2billion Substantial/Exemplary Damages against the Respondents jointly and severally for unlawful detention of the Applicant from 20th day of January 2010 to 26n day of January 2010.
(3) N2billion Substantial/Exemplary Damages against the Respondents jointly and severally of January 2010 until July, 2010 when the Applicant from 21st day was removed from the 4th Respondent.
On 5th June 2012, the 7th Respondent filed a Counter-Affidavit and Written Address in opposition to the Appellant’s Application. This can be found at Pages 176-180 of the Records of Appeal.
On the 21st February 2014, the lower Court delivered its judgment striking out the Applicant’s suit for want of jurisdiction.
Dissatisfied with the decision, the Appellant filed his Notice of Appeal on the 1st April 2014 (See Pages 202-203 of the Record of Appeal).
Subsequently, by way of a Motion dated the 25th day of March but filed on the 31st of March 2021, the Appellant applied before this Court to withdraw this appeal filed against the 2nd and 3rd Respondents, and the prayers were granted on the 6th day of July 2021.
The Appellant’s Brief was filed 24th November 2021 and settled by A.O Adeoye Esq. The 7th Respondent’s Brief, filed on 6th March 2019, was settled by T. Shitta-Bey (Ms.) and deemed 16th March 2022. The Appellant’s Reply Brief was filed 3rd of October 2019 and deemed 16th March 2022.
Learned Counsel to the Appellant in his Brief formulated the following Three (3) Issues for the determination of this appeal, which are:
1. Whether from the surrounding facts as contained in the Appellant’s Statement of Facts, Affidavits Counter Affidavit, and Application of Law, the trial Judge had jurisdiction or not.
2. Whether the judgment is a nullity or not having been delivered over a year or more than 90days/3months.
3. Whether the Court of Appeal after setting aside the judgment, has the statutory power to review the case and give judgment to the Appellant without ordering a rehearing of the application for enforcement of the Appellant’s Fundamental Rights by another Judge.
Learned Counsel for the 7th Respondent, on the other hand, raised the following Three (3) issues for determination, which are:
1. Whether the Learned Trial Judge was right in law to have declined jurisdiction and struck out the case having found out that the Respondents are not Federal Government Agents.
2. Whether the delay in the delivery of the judgment being appealed against beyond the Constitutionally required 90 days made the Appellant to suffer a miscarriage of justice to have rendered the Judgment a nullity in law.
3. Whether this appeal has merit to enable My Lords set aside the judgment of the lower Court, review the case and pass its own judgment or order for rehearing of the case by another Judge of a Federal High Court.
Now, a close look at the issues formulated by the Two Parties will reveal that they are not dissimilar, and therefore this Court will adopt the issues formulated by the Appellant to resolve this appeal. We will resolve Issue One separately and subsume Issue 3 under Issue 2 and treat them as a single Issue for determination.
ISSUE 1
Whether from the surrounding facts as contained in the Appellant’s Statement of Facts, Affidavits Counter Affidavit, and Application of Law the Trial Judge had jurisdiction or not.
ARGUMENTS OF THE PARTIES
On this issue, Learned Counsel to the Appellant submitted that the 4th Respondent acted mala fide and committed an abuse of Court’s Process, through illegal prosecution, with the assistance of the 2nd and 3rd Respondents in collaboration with the 5th Respondent by continuing with the arraignment of the Appellant despite the objection raised by the Appellant that there was an Order of the Federal High Court given by Hon, Justice Abang ousting the jurisdiction of the 4th Respondent. He referred to Pages 24 and 25 of the Record of Appeal for the Copy of the Order.
Learned Counsel submitted further that the Learned Trial Judge relied on Section 73 of the Lagos State Magistrate Court Law, now Section 88 without reference to the PROVISO to that Section which states that ‘’…provided he at the time, in good faith, believed himself to have jurisdiction to do or Order to be done the act in question” (underline his). If the Learned Trial Judge had considered the above Proviso, he would have assumed jurisdiction and he would have concluded that the 4th Respondent was liable for disobeying the Court.
Learned Counsel submitted that the 4th Respondent lacked jurisdiction at the time he ignored the Order of the High Court. He pointed out the observation of Hon. Justice Abang in his further ruling of 7th May, 2010 at Page 41, line 1 -7 of the Record, where he confirmed the fact that the 4th Respondent was confronted with his Order on the day of arraignment but the 4th Respondent overlooked the Order.
Learned Counsel submitted further on the mala fide act of the 4th Respondent, in the area of granting of Bail to the Appellant on the day of arraignment. He stated that the mala fide act is apparent in the harsh Bail condition imposed on the Appellant and the way the 4th Respondent absconded from his Chambers when the Sureties of the Appellant were announced to the 4th Respondent for interrogation. It is on record that 4th Respondent surreptitiously left his chambers, without considering the Appellant’s Bail application and made him to be in prison custody at Ikoyi for six (6) days. He referred to the Appellant’s Statement of Facts at Pages 4-8 of the Records, and submitted that the Respondents, particularly by the 4th Respondent, never controverted these statements.
Learned Counsel submitted on the position of the Trial Judge in respect of 2nd and 3rd Respondents, who according to the Trial Judge, are Agents of the State Government, and argued that the Learned Trial judge was wrong to have set aside the whole action instead of striking out the Appellant’s Action in respect of the 2nd and 3rd Respondents. He argued that while the Agents get away from their wrongful acts, the Principal they work for, and that is, the 4th Respondent, cannot get away and he urged the Court to resolve this Issue in favor of the Appellant.
Learned Counsel to the 7th Respondent on the other hand, submitted on this Issue that the Learned Trial Judge was right in law to have declined jurisdiction in the matter and right to have struck out the Action. The Learned Trial Judge was well guided by the law that jurisdiction is primus inter pares in any adjudication, without which no proceeding however brilliantly conducted by the Court or Tribunal can be valid. He relied on the Case Law Authorities of OHAKIM VS AGBASO (2010) 19 IVWLR (PART 1226) 172 SC; MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341; IKE VS NZEKWE (1975) 2 S. C; TUKUR VS GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PART 117) 517.
Learned Counsel submitted again that in order to determine whether or not a Court has jurisdiction in a case, the Court would consider the Originating Process and the Enabling Statute vesting jurisdiction on the Court. He relied on AMAECHI VS INEC (2007) 9 NWLR (PART 1040) 504 at 534 Para E-A. The Respondents especially the 2nd & 3rd Respondents, at all material times to the suit, were not Agents of the Federal Government rather, they acted as Agents of Lagos State Government. Ipso facto, the Federal High Court lacks jurisdiction to entertain the matter, as the case of the Applicant (now Appellant) cannot be grounded under Chapter IV and Section 251 (l) of the Constitution of the Federal Republic of Nigeria. None of the Provisions of Section 251 of the Constitution of the 1999 (As Amended) relates to Enforcement of Fundamental Rights Action, where the Respondents are Agents of a State.
Learned Counsel called the attention of the Court to the fact that by virtue of Section 122(1) and (2) of the Evidence Act 2011, this Court is obliged to take Judicial Notice of relevant laws and enactments in force in Nigeria when considering an appeal. He relied on SDPC NIG (Plc.) VS DINO (2007) 2 NWLR (PART 1019) 438 at 462 PARAS A – D (C.A.). Thus, it was right for the Learned Trial Judge to have declined jurisdiction as the Respondents are not Agents of the Federal Government at all material times to this suit. He relied further on PPMC VS DELPHI PETROLEUM INC (2005) 8 NWLR (PART 298) 458.
Learned Counsel also submitted that by virtue of Section 46 of the 1999 Constitution of Nigeria, the Federal and State High Court including the High Court of the Federal Capital Territory Abuja have concurrent Special Jurisdiction in matters for enforcement of Fundamental Human Rights. However, Section 46(2) made the Special Jurisdiction vested in the High Court subject to the provisions of the Constitution. Therefore, having regard to the Provisions of Section 46(2) and Section 251(1) of the Constitution, the Federal High Court lacks jurisdiction to entertain any suit in respect of matters of fundamental right against a State Government or any of its Agencies. He relied on GAFAR VS GOVT KWARA STATE (2007) 4 NWLR (PART 1024) 375; TUKUR VS GOVT OF GONGOLA STATE (SUPRA).
Finally, Learned Counsel submitted in regard to the Appellant’s Claims, that there was a Competent Order of a Federal High Court directed, amongst other persons, to the 4th Respondent not to arraign the Appellant, but he went ahead and did so. Further, assuming but not conceding that the 4th Respondent truly disobeyed a Subsisting Court Order, it is only when there are Proper Parties before a Court that such an issue can be canvassed and ruled upon by the Court. It was therefore lawful for the Honourable Court to have struck out the case for want of jurisdiction. He relied on the Case Law Authorities of OJO VS OGBE (2007) 9 NWLR PART 1040 542 CA; MOBIL OIL PLC VS D.E.N.R. LTD (2004) 12 NWLR PART 853 Page 142 C.A; BIYU VS IBRAHIM (2006) 8 NWLR PART 981 Page 1 CA.
The Appellant’s Reply was a repetition of his arguments made earlier in his Brief. It is trite law that a Reply Brief is a response to a new point of law raised in the Respondent’s Brief, and is not an opportunity for the Appellant to rehash the arguments in his Brief. It is filed when an issue of law or arguments raised in the Respondent’s Brief, calls for a response. Therefore this Brief should only deal with new points arising from the respondent’s brief. In the absence of a new point, a Reply Brief is otiose and the Court is entitled to discountenance it. According to Counsel, a Reply Brief is not a repair kit, to put right any lacuna or error in the Appellant’s Brief and he referenced the Decided Case Authorities of MOZIE & ORS VS MBAMALU & ORS (2006) LPELR-1922 (SC); and AWUSA VS NIGERIAN ARMY (2018) LPELR-44377 (SC).
RESOLUTION OF THE ISSUE
The importance of jurisdiction cannot be over-emphasized. It is often described as the life wire of the adjudication process. Without it, every step taken in the case amounts to a nullity, no matter how well conducted and no matter how erudite the decision emanating therefrom. Reliance is placed on OGBUJI & ANOR VS AMADI (2022) LPELR-56591 (SC); UTIH VS ONOYIVWE (1991) 1 NWLR (PART 166) 206; SHITTA-BEY VS A.G. FEDERATION & ANOR (1988) 7 SC (PART 2) 121; (1998) LPELR-3055 (SC) AT 30-31 F-G; PETROJESSICA ENT LTD VS LEVENTIS TECHNICAL CO. LTD. (1992) LPELR-2915 (SC) AT 23 E-F.
In UTIH VS ONOYIVWE (SUPRA), His Lordship, Bello CJN held:
“…Jurisdiction is like the blood that gives life to the survival of an action in a Court of Law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it, would be an abortive exercise.”
In declining jurisdiction to hear this instant suit, the lower Court gave reasons for his decision thus:
“It is very clear that the Applicant brought this application for enforcement of his fundamental rights in the Federal High Court because he believes that whenever the Police arrests or detains a person whether rightly or wrongly during the investigation of complaints, that the Police is acting as agents of the Federal Government. But this is not correct. The Court of Appeal in the case of OKOROMA VS UBA (1999) 1 NWLR (PART 587) 359, stated thus:
“A Police Officer in Nigeria is capable of enjoying a dual status. When he is complying with the directions of the Governor of a State with respect to maintaining and securing of public safety and public order within the State, he is an agent of the State and not an agent of the Federal Government. On the other hand, where he is also complying with the directions of the President in maintaining and securing public safety and public order issued to the Inspector General of Police then he is acting as an agent of the Federal Government. In the instant case, the 2nd — 5th Respondents were securing public safety and public order in Enugu State either on the special or general directions of the Governor of the State and were for that purpose agents of the State. (MILITARY ADMINISTRATOR OF KWARA STATE VS LAFIAGI (1998) 7 NWLR (PART 557) 202, 213 (REFERRED TO PAGES 387, PARAGRAPHS F- H, 388, PARAGRAPHS C- G).”
The Court of Appeal has therefore held that the Police can act in dual capacity and that the capacity in which they are acting depends on whether they are maintaining and securing public safety and public order within the State as an agent of the State or whether they are maintaining and securing public safety and public order issued to the Inspector General of Police. In TUKUR VS GOVERNMENT OF GONGOLA STATE (1989) 3 NSCC 225, the Supreme Court stated that the enforcement of fundamental rights in matters outside the jurisdiction of the Federal High Court is not within the contemplation of Section 42(2) of the 1979 Constitution. Section 42(2) is now Section 46(2) of the 1999 Constitution.
Consequently, the Federal High Court can only enforce fundamental rights arising from cases in which it ordinarily would have jurisdiction. It is therefore clear that if the 2nd and 3rd Respondents in this matter did not act as agents of the Federal Government in this case, the Federal High Court would therefore not have jurisdiction to hear and determine the instant application.
On the authority of OKOROMA v. UBA (supra), it is the considered view of this Honourable Court that based on the facts and circumstances of this case, that the 2nd and 3rd Respondents did not act as agents of the Federal Government as they were merely maintaining and securing public safety and public order within Lagos State and that the Federal Government has no interest whatsoever in this case.
In the result, it is therefore my finding and I so hold that this Court has no jurisdiction to entertain the Applicant’s Fundamental Rights Application and that because of the Provisions of Section 73 of the Magistrate Court Act of Lagos State, I do not think that it will be in the interest of Justice to transfer this Matter to the High Court of Lagos State for hearing and adjudication.
Accordingly, this suit is hereby struck out for want of jurisdiction. I make no Order as to cost.”
Now, the jurisdiction of the Federal High Court is donated by Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria. The opening part of the Section reads:
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters.”
The provision then proceeded to list Eighteen Specific Areas in Paragraphs (a) to (r) where Exclusive Jurisdiction is conferred on the Federal High Court and, it concluded in Paragraph (s), that “such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly”. The effect of this provision is that it made the Federal High Court a Court of enumerated jurisdiction, and not one of general jurisdiction, and as such for the Federal High Court to have jurisdiction over a matter, the subject matter of action must fit into one of the enumerated areas of its jurisdiction. Reliance is placed on ANAO VS SUN PUBLISHING LTD (2013) 3 NWLR (PART 1341) 399, MERILL GUARANTY SAVINGS & LOANS LTD VS WORLDGATE BUILDING SOCIETY LTD (2013) 1 NWLR (PART 1336) 581, AHMED VS AHMED (2013) 15 NWLR (PART 1377) 274.
This point was succinctly made by this Court by Nweze, JCA (as he then was) in OLADIPO VS NIGERIAN CUSTOMS SERVICE BOARD (2009) 12 NWLR (PARTT 1156) 563 AT PAGE 585 thus:
“…Before we return to this question, we must first return to the implication of the drafting technique in Section 251 (Supra). The point must be noted that the draftsman of that section painstakingly itemized the subject matters that fall within the exclusive jurisdiction of the Federal High Court in eighteen major items. The implication of this technique is that the said Court (Federal High Court) is 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 matter enumerated therein. It would, therefore amount to wrecking 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…. The effect of the circumscription of the jurisdiction of the Court to those eighteen major items is that whenever the question of 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.”
Now, the subject matter of this suit is the alleged violation of the fundamental human right of the Appellant. Section 46(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows:
46(1): Any Person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him, may apply to a High Court in that State for redress.
(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 this Chapter.
Both the Supreme Court and this Court have judicially interpreted the above provision as seen in OLUTOLA VS UNIVERSITY OF ILORIN (2004) 18 NWLR (PART 905) 416; JACK VS UNIVERSITY OF AGRICULTURE, MAKURDI (2004) 5 NWLR (PART 865) 208; ZAKARI VS IGP (2000) 8 NWLR (PART 670) 666; AND THE NIGERIAN NAVY VS GARRICK (2006) 4 NWLR (PART 69) 69.
Clearly, this Section 46 gives the right to seek for redress at the High Court in any State wherein the infringement of a person’s fundamental rights has been breached. The High Court, vested with Original Jurisdiction, can make any Orders it deems fit in the circumstances to make when determining such applications.
Further, the Provisions of Order 1, Rule 2 Fundamental Rights (Enforcement Procedure) Rules made pursuant to Constitutional Provisions, defined Court to mean the Federal High Court or the High Court of a State. What this means is that both the Federal High Court and the High Court of a State have concurrent jurisdiction in matters of enforcement of fundamental rights.
The issue of jurisdiction of a Court to determine a case may be determined as per the subject matter of the case, the Parties between whom the issue is joined, or the kind of Reliefs sought. For the Federal High Court, these factors operate together, such that if one is faulty, in spite of the other two being present, the Court cannot exercise any valid jurisdiction. The mere presence of one feature does not exclude the need for the presence of all other features. This position was affirmed by the Supreme Court in the case of OBIUWEUBI VS CENTRAL BANK OF NIGERIA (2011) 7 NWLR 465 thus:
“For the Federal High Court to have jurisdiction under Section 230 of the 1979 Constitution or Section 251 of the 1999 Constitution, the following must Co-exist. (a) The Parties or a Party must be the Federal Government or its Agencies: (b) Subject Matter of the Litigation. That is to say, jurisdiction is the combination of parties and subject matter. The words used in this piece of legislation are plain as can be and have been interpreted by this Court on several occasions. See: N.E.P.A. VS EDEGBERO 2002 18 NWLR (PART 798) P79, OLORUNTOBA-OJU VS ABDUL-RAHEEM & 3 ORS 2009 5-6 SC (PART 11) PAGE 57 Per RHODES-VIVOUR, J.S.C.”
Also see ANGADI VS PDP & ORS (2018) LPELR-44375 (SC); ADEYEMI VS OPEYORI (1976) 9-10 SC 31; IKINE VS EDJERODE (2001) 92 LRCN 3288 AT 3316; ALADEGBEMI VS FASANMADE (1988) 3 NWLR (PART 81) 129.
Now, this Court has already established that both Federal High Court and State High Court have Concurrent Jurisdiction on the Subject Matter (Fundamental Human Rights) of this suit. Therefore, it is necessary to critically look at the Parties involved to determine the Appropriate Court to entertain this suit.
The trial Judge had agreed with the 7th Respondent that the 2nd and 3rd Respondents are Agents of the State Government therefore the suit ought to be instituted at the State High Court. Going by the Reliefs sought by the Applicant, which relate to enforcement of fundamental Rights against the 1-7th Respondents who are Agents of the Lagos State Government, a matter that is not within the ambit of Section 251(1) of the Constitution, this Court is in agreement with the lower Court that the 2nd and 3rd Respondents acted as the Agents of the Lagos State Government. Reliance is placed on these Case Law Authorities of SIR JUDE AGBASO VS HON. SIMEON IWUNZE (2014) LPELR-24108 (CA); AG LAGOS STATE VS REGISTERED TRUSTEES OF CATTLE DEALERS ASSOCIATION LAGOS STATE & ORS (2016) LPELR-40475 (CA).
Based on the foregoing finding that though the subject matter in this suit is a matter of Concurrent Jurisdiction of both Federal and State High Court, the Parties involved are Agents of the State Governments, not Federal Government, the trial Court lacked jurisdiction to entertain this matter. Regard is had to the Case Law Authorities of NEPA VS EDEGBERO & ORS (SUPRA); OLORUNTOBA-OJU & ORS VS DOPAMU & ORS (2008) LPELR-2595 (SC).
The Appellant erroneously submitted that the trial Court ought to strike out the 2nd and 3rd Respondents from the suit and entertain the suit against the 4th Respondent solely. This submission is watery having gone through the process and discovered that the 4th Respondent is a Magistrate, who is also an Agent of the Lagos State Government, acting in her official capacity. It is clearly out of the scope of the Federal High Court.
Consequentially, the earlier Order given by Justice Abang of the Federal High Court, which had ousted the jurisdiction of the Magistrate Court and stopping it from adjudicating on the suit, was also given in nullity, because the Federal High Court did not possess the requisite jurisdiction to entertain suits of this Nature
For a matter to be heard in Court and completely determined, the Court must be clothed with jurisdiction to hear such matters, and there must be no feature in the case, which prevents the Court from exercising its jurisdiction. Reference is made to the decided cases of KURMA VS SAUWA (2018) LPELR-46317 (SC); MADUKOLU & ORS VS NKEMDILIM (1962) SC; ALAFIA & ORS VS GBODE VENTURES (NIG) LTD & ORS (2016) LPELR-26065 (SC); ABRAHAM ADESANYA VS PRESIDENT OF FRN (1981) NCLR 38.
Flowing from the foregoing Paragraph, the arguments of the Appellant premised on this Earlier Order of the Federal High Court has no leg to stand on. It is well settled that where an act is void, it is void and nothing can be added to it. It is expressed in the Latin ex nihilo nihil fit. If an act is void, then it is in law a nullity. It is not only bad, but also incurably bad and every proceeding, which is founded on it, is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. Denning L.J. commented on this Principle of nullity succinctly in U.A.C. LTD. VS MACFOY (1961) 3 ALL E.R AT PAGE 1172. See also NZOM & ANOR VS JINADU (1987) LPELR-2143 (SC).
This issue is therefore resolved in favour of the Respondents against the Appellant.
ISSUE 2
Whether the judgment is a nullity or not having been delivered over a year or more than 90days/3months.
ARGUMENTS OF THE PARTIES
Learned Counsel to the Appellant submitted on this issue that the judgment having been delivered beyond the period stipulated by law is a nullity. The judgment ought to have been delivered 90 days or 3 months from 20th February 2013 and not after a period of more than one (1) year i.e. on the 21st day of February 2014. There is no reason to believe that the delay in the delivering of the judgment was/is in the interest of Justice. He urged this Court to exercise its power by virtue of Section 23 Part IV and Order 19 Rule 11 of the Act and the Rules, to give judgment to the Appellant instead of remitting back the case to another Judge of the Federal High Court. He based this argument on the fact that the case before the Federal High Court is for the Enforcement of the Appellant’s Fundamental Rights, where the Procedure had been laid down by the Rules.
Learned Counsel, in urging this Court to consider the Merits of the Case, submitted further that the Parties before the Federal High Court and to this appeal, had strictly complied with the Procedures, and the Proceedings at the Federal High Court, which are fully embodied in the Record of Appeal before this Court. Furthermore, the Record of Appeal is not voluminous and complicated to warrant a rehearing by another Judge,
Finally, Learned Counsel submitted that the position of the Learned Trial judge that the Appellant had asked for damages in the sum of N600 million was not true, having regard to the Appellant’s Request under B: 2 Quantum of Damages at Page 52 of the Record and His Lordship’s review of the facts in his judgment of 21st day of February 2014 at Page 192 at item 6 of the judgment. He urged the Court to allow this appeal by giving judgment against the 4th Respondent as the Main Tortfeasor; against the 1st and 5th Respondent as Collaborators; and against the 6th and 7th Respondent as being vicariously liable. He urged the judgment to be rendered in accordance with the Appellant’s Reliefs sought from the Federal High Court.
Learned Counsel to the 7th Respondent on the other hand, submitted that the failure of the Learned Trial Judge to deliver the judgment being appealed against within 90 days as required by Section 294 (l) & (5) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) did not render the judgment a nullity in law. This is founded on the law that Section 294(1) cannot be effected without the condition precedent to that Section which is provided for under Subsection (5) of the Section.
Learned Counsel submitted further that the Appellant’s mere claim that the judgment is a nullity for not being delivered within the Constitutional limit of 90 days, and without showing how that delay made him suffer miscarriage of justice, is fatal to his claim, and this assertion, should be discountenanced by this Honourable Court. He relied on GBADAMOSI VS DAIRO (2007) 3 NWLR (PART 1021) 282 AT 306; AKPAN VS BOB (2010) 17 NWLR (PART 1223) 4210 479; AKOMA & ANOR VS OSENWOKWU & ORS (2014) LPELR-22885 (SC); OTUNBA ABDUL LATEEF OWOYEMI VS PRINCE YINUSA OLADELE & ORS (2003) 12 SC PART 1 PAGE 1 AT 24-25.
Learned Counsel also submitted on this issue, that the judgment being appealed against was heard on Briefs (Written Addresses) and Affidavit Evidence of Parties and not on the Evidence of Witnesses. Therefore, the judgment being appealed against under this appeal could not have occasioned any miscarriage of justice. He concluded that this appeal lacks merit and should be dismissed because there is no Ground in Law to warrant an Order for retrial of this case, which was delivered by the lower Court.
In his Reply, Learned Counsel to the Appellant submitted that if this Court finds the judgment not to be a nullity, this appeal could still be decided on the other Grounds formulated by the Appellant in his Notice of Appeal. He urged the Court to ignore the Prayer of the 7th Respondent that the Court should dismiss this appeal on the ground that the trial Court struck out this suit but did not dismiss it. Furthermore the Appellant canvassed an Alternative Prayer before the trial Court, which could have been considered by the Court.
Learned Counsel prayed this Court to give judgment to the Appellant by setting aside the judgment of the lower Court by virtue of the provisions of Order 2, Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009, which the Appellant had strictly complied with. Also Learned Counsel to the 7th Respondent based his submission on technicality so this Court should do substantial Justice by allowing the appeal and by giving the Appellant judgment with substantial amount of damages awarded in consonance with the reasoning of the Supreme Court in the case of IJEBU-ODE LOCAL GOVERNMENT VS ADEDEJI BALOGUN & CO LTD (1991) 1 S.C.N.J 1.
Finally, Learned Counsel submitted that if this Court finds that the Appellant’s case is not maintainable in the Federal High Court against the remaining Respondents on Ground of Jurisdiction, this appeal should be struck out or the case be sent back to the High Court of Lagos as the Court of Appeal did in the GAFAR VS GOVERNMENT OF KWARA STATE (2007) 4 N.W.L.R. (PART 1024) 375 and approved by the Supreme Court in the case of TUKUR VS. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PART 117) 517.
RESOLUTION OF THE ISSUE
Now, on the failure of the lower Court to deliver the judgment within the period of time prescribed, Section 294 (1) of the 1999 Constitution of Federal Republic of Nigeria seems to have settled all the contentions of the Parties surrounding this. For the purpose of clarity, I will reproduce this relevant provision of Section 294(1).
SECTION 294 (1) provides thus:
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
Flowing from this Section 294(1), apparently, the lower Court, as a Court established under the Constitution, is directed and bound by this provision, to deliver its judgment/decision in writing within Ninety (90) days after the conclusion of evidence and final addresses in a case. The Provisions imposed a Legal and Judicial duty and obligation on the lower Court to do so when and as prescribed therein, without option. The purpose of the provision is to make the Courts render their decision in a case, while the facts, evidence and peculiar circumstances placed before it, was still fresh and within its reasonable memory. Once decided promptly, a Court will be in a proper position to make informed appraisals, assessment and evaluation of all relevant and material points that calls for determination.
The longer it takes for a decision to be delivered in a case, the more likely it is for a clear, precise and accurate memory of the special peculiarities of a case, to fade away and be overlooked by a Court. For that reason, every Court established under the Constitution has a first line binding obligation and duty to deliver its decision in a case in strict compliance and accordance with the provisions. Where it fails or omitted to do so, resort could be had to the Principles of interpretation, which permits a Section made up of more Subsections, to be considered holistically and interpreted in consonance, in order to find out determine the true intention of the Provision and to determine what the consequences of the omission or failure to comply with the provisions of the subsection would be.
SECTION 294 (5) provides thus:
“The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision, is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
In the Case Law Authorities of COTECNA INTERNATIONAL LIMITED VS CHURCHGATE NIGERIA LIMITED (2010) 18 NWLR (1225) 346, the Apex Court dealing with the provisions of Section 294 Subsections (1) and (5), said that: –
“Section 294(1) of the 1999 Constitution provides that a Written Judgment of every Court established under the Constitution shall be delivered not later than Ninety (90) after the conclusion of evidence and final address. By virtue of Subsection 5 of Section 294 of the Constitution, this Court is enjoined not to set aside the judgment of a trial Court solely on the ground that it was delivered outside the Ninety Days period after final address, unless the party complaining has suffered a miscarriage of justice. It would appear to me, and I am of the view that the delivery of judgment earlier than the scheduled date without notice to the Appellant will not nullify the judgment, unless the Appellant can show that it has resulted in a miscarriage of justice.” See also TOTAL NIGERIA PLC VS NEW C.H.C. (2015) 17 NWLR (1489); AHMED VS CBN (2013) 11 NWLR (1365) 352 AT 555, ALIMI VS KOSEBINU (2016) 17 NWLR (1542) 337.
The Provision of the law is therefore, that a judgment delivered outside or after the expiration of the period of ninety (90) days as stipulated in Subsection 294, shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provision, unless the party complaining of the non-compliance satisfies the Appellate Court that he has suffered a miscarriage of justice thereby. As a result, it is not enough for a party to simply complain at the Appellate Court that a lower Court did not comply with the provisions of Subsection 1 of Section 294. Before such judgment can be set aside or treated as a nullity, the Appellant has an additional burden to show and satisfy the Appellate Court, that the non-compliance did in fact occasion a miscarriage of justice to him. Reference is made to SBN LIMITED VS STARITE INDUSTRY OVERSEAS CORPORATION (2009) 8 NWLR (1144) 491, SPDCN LIMITED VS EKWENS (2009) 4 NWLR (1131) 220, IGWE VS KALU (2002) 5 NWLR (761) 678, ATUNGWU VS CHEKWU (2004) 17 NWLR (901) 18.
Putting it better, the burden placed on the Complainant is not discharged by mere assertion that a miscarriage of justice was occasioned due to non-compliance, and calling on the Appellate Court to conjecture such an effect, but the Complainant must go further to demonstrate that the delay in delivering the judgment had denied or robbed the trial Court of the expected capacity to fully and correctly appreciate the peculiar facts, evidence and circumstances disclosed in the case or must prove that material impressions experienced during the trial, have been lost as a result of this non-compliance. See also FBN LIMITED VS ADEPETU & COMPANY NIGERIA LIMITED (2009) 11 NWLR (1157) 156.
In the one (1) Page Argument on the issue in the Appellant’s Brief, there was no attempt by the Appellant to demonstrate how this non-compliance with the provisions of Subsection 1 of Section 294 occasioned him a miscarriage of justice. He bore the burden of satisfying this Court that there is justification for the judgment to be treated as a nullity.
Though the judgment was delivered by the trial Court outside the period of time stipulated by the Constitution, this Court has not seen where this delay occasioned a miscarriage of justice to the Appellant. Consequentially, there is no basis to set aside this judgment.
Therefore in conclusion, this issue is resolved against the Appellant and in favour of the Respondents. Based on the foregoing analysis and judicial authorities, this appeal is hereby dismissed for lacking in merit. The judgment of the trial Court delivered 21st February 2014, is hereby upheld.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular opportunity to peruse in draft, the succinct leading judgment delivered by my learned brother: Adebukunola Adeoti Banjoko, JCA. I agree fully with the legal reasoning and conclusion in it. I, too, dismiss the appeal in the manner decreed in the leading judgment. I abide by the consequential orders ordained therein.
MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I had a preview of the leading judgment prepared by my learned brother, ADEBUKUNOLA ADEOTI BANJOKO, JCA, just delivered. I agree with his judicial reasoning and conclusion that the appeal is lacking any scintilla of merit.
The Appellant, having failed to establish miscarriage of justice, occasioned as a result of the delivery of judgment outside the constitutional period of 90 days, is not entitled to have the judgment of the lower Court set aside.
In also dismissing the appeal and affirming the decision of the lower Court, I adopt his lordship’s comprehensive legal expositions in the leading judgment as mine.
Appearances:
A.O ADEOYE, ESQ. For Appellant(s)
T. SHITTA-BEY (MS) – for 7th Respondent. For Respondent(s)