CHIEF CHARLES ADU & ORS v. LAGOS STATE TASK FORCE ON ENVIRONMENT AND SPECIAL OFFENCES UNIT & ORS
(2016)LCN/8208(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 23rd day of February, 2016
CA/L/972M/2014
RATIO
COURT: ANCILLARY RELIEFS; WHETHER THE COURT CAN ADJUDICATE ON ANCILLARY RELIEFS WHERE IT HAS NO JURISDICTION TO ENTERTAIN THE MAIN CLAIM
The Law is that a Court cannot adjudicate on ancillary reliefs where it has no jurisdiction to entertain the main claim especially where the determination of the ancillary claim must necessarily involve the consideration of the main claim. See: Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517.
The corollary to this is that where Court can entertain both the main and ancillary reliefs the Court should go ahead and assume jurisdiction. per. SIDI DAUDA BAGE, J.C.A.
COURT: JURISDICTION; THE ESSENTIALS OF JURISDICTION
The Supreme Court in the case of Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt 117) 517 at PP. 560 – 561 Paras H – A, brought out the essentials of jurisdiction to include:
(a) The Legal capacity , the power and authority of a Court to hear and determine
a judicial proceeding in the sense that it has the right and power to adjudicate concerning the particular subject – matter in controversy;
(b) The geographical area in which and over which the Legal jurisdiction of the Court can be exercised . This area of authority is called the area of geographical jurisdiction or venue.
Both are important when one is considering the concept of jurisdiction and both must co-exist in any particular case to complete the circuit of jurisdiction. per. SIDI DAUDA BAGE, J.C.A.
CONSTITUTIONAL LAW: ENFORCEMENT OF FUNDAMENTAL RIGHTS; THE COURT’S CORRECT APPROACH IN A CLAIM FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS
On the originating motion, the Affidavit and Statements of the Appellants at the Lower Court, there was no claim as to title or recovery of a piece of Land to warrant the Court below declining its jurisdiction to hear the Appellants who were before it for the enforcement of their fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules 2009. See also on this the case of Sea Trucks Nig. Ltd v. Anigboro (2001) 10 WRN 78, (2001) 1 SC 45 where the Supreme Court stated as follows:
” The Court’s correct approach in a claim for enforcement of fundamental Rights is to examine the relief sought, the grounds for such relief and the fact relied upon” per. SIDI DAUDA BAGE, J.C.A.
PRACTICE AND PROCEDURE: CAUSE OF ACTION: THE MEANING OF ‘CAUSE OF ACTION’
Let me add strength to this position, by providing the meaning of” cause of action” stated by the Supreme Court in Tukur v. Govt. of Gongola State (supra). The apex Court at page 581 para. H, stated as follows:
”By the expression “cause of action” is meant the factual base or some factual situation a combination of which makes the matter in litigation an enforceable rights or an actionable wrong; Ibrahim v. Osim (1988) 3 NWLR (pt. 82) 257; Thomas v. Olufosoye (1986) 3 NWLR (Pt 18) 669 at 682.” per. SIDI DAUDA BAGE, J.C.A.
JUSTICES:
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
(1) CHIEF CHARLES ADU
(2) CHIEF JOSHUA MEDEPO
(3) MR OLUSEYI ADELEYE
(4) MR AFOLABI OLUKOYA
(5)MR. ADEBIYI JOHNSON
(6) ALHAJI OWOLABI AJALA
(7) MR IWUEZE EMMANUEL
(8) ALHAJI ISIAKA OBABIYI
(9) MR SALAMI LUKUMAN
(10) MR CHRISTIAN DAMIAN
(11) PROPHET SAMSON IWATOMO
(12) MR ENEANYA CHARLES
(13) MR JUSTTCE OVEMURAI
(14) MR PETER OKWA
(15) ALHAJI KOLAWOLE ADEWUNMI
(16) MR ADEDEJI IBRAHIM
(17) MR OLAWOLE ADIGUN
(18) MR ALAO ALAPANLA
(19) MR OLANIPEKUN AYANLEYE
(20) MR AFOLABI KEHINDE
(21) MR CHRTSTOPHER AKPICHE
(22) MR OLADIMEJI OLUWASEUN
(Suing for themselves and on behalf of the Landlords/house owners and residents of Atinporome Community, Araromi Ale Extension Community and Mowo Phase 2 Community) – Appellant(s)
AND
1. LAGOS STATE TASK FORCE ON ENVIRONMENT AND SPECIAL OFFENCES UNIT
2. LAGOS STATE MINISTRY OF PHYSICAL PLANNING
AND URBAN DEVELOPMENT
3. LAGOS STATE LANDS BUREAU
4. ATTORNEY-GENERAL OF LAGOS STATE
5. INSPECTOR GENERAL OF POLICE (IGP)
6. COMMISSIONER OF POLICE LAGOS STATE
7. AREA COMMANDER AREA ‘K’ POLICE COMMAND
8. ATTORNEY-GENERAL OF THE FEDERATION – Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading judgment):This is an appeal against the Ruling of the High Court of Lagos State, delivered by the Hon. Justice Y. A. Adesanya on the 10th of July, 2014.
In the said Ruling which can be found at pages 219 – 228 of the Record, the learned trial judge declined jurisdiction to hear the Appellants’ Fundamental Human Rights application on the ground that the Appellants suit ought not to have been commenced under Fundamental Rights Enforcement Procedure Rules.
The Appellants being aggrieved by the Ruling of the learned trial judge filed a Notice of Appeal dated 15th August, 2014 but filed on the 20th of August 2014 compromising two (2) grounds. The Appellants’ Notice of Appeal can be found at 229 – 233 of the Records.
Briefly the facts of the case are as follows:-.
The Appellants who are residents of 3 communities namely: Atinporomeh, Araromi Ale Extension and Mowo Phase 2 (all in Badagry Area of Lagos) have lived in these communities over the years
On the 14th of December 2013, they (Appellants) received a letter from the 5th-7th Respondents (the police) alleging
that the place which, they live had since been acquired by the 1st – 4th Respondents (the Lagos State Government) and allocated to them. See the said letter on page 26 of the record.
Sadly enough, even though the said letter was addressed to the Baale of Atinporome (one of the 3 communities), the subheading of the letter complained of encroachment of police land in a different community called Agemowo / Ageledo and not Atinporome or Araromi Ale or Mowo Phase II extension, which is the Appellants’ community.
In a swift reaction, the Appellants replied the police the next day though their counsel – Rickey Tarfa & Co. vide letter dated 15th December, 2014 and informed the police that their letter was misdirected. The police of course ignored this letter. Rickey Tarfa & co. Letter is on pages 27 – 29 of the records.
Two days later, precisely on the 16th of December 2013 at about 4:30am, the Appellants were rudely and shockingly woken up by the presence of over 100 heavily armed officers and men of the 5th – 7th Respondent who invaded their community. They also came with about 16 Black Maria vehicles and 12 bulldozer and compulsorily acquired
the Appellants’ properties by pulling down all their houses amidst wailings, tears and frustrations.
The operation lasted for two days i.e. 16th & 17th December, 2013 and at the end of the operation the Appellants’ houses and over 1,500 other houses belonging to other residents in the 3 communities of Atinporomeh, Araromi Ale and Mowo Phase II extension were completely demolished hence leaving them homeless.
The Appellants thus woke up to a sudden sad reality that their properties where they have inhabited over the years have been compulsorily acquired by the 1st – 7th Respondents, and not just acquiring them but also completely destroyed
As the demolition was going on the Appellants who dared to complain or explain or take photographs of the demolition exercise were beaten up, arrested tortured and detained to silence and intimidate them. None of them was allowed to remove a pin from their houses.
The Respondents went ahead in an inhuman manner to use the bulldozer to crush the rubbles and the household items in the buildings which they (respondents) later packed and sold.
The Appellants then approached the High Court of Lagos
sitting in Badagry and alleged that their fundamental rights under Sections 43 & 44 of the Constitution which guaranteed freedom to own and acquire property (i,e. Section 43) and freedom from compulsory acquisition of such property (i.e. Section 44) have been infringed upon
Other claims of the Appellants was that their right to Life liberty, freedom of movement, right to fair hearing and dignity of human person i.e. Sections 33, 34, 35, 36 41 & 45 have been violated.
They (Appellants) commenced the action under the fundamental right enforcement procedure rules. see pages 1 – 77 of the records and prayed as follows:
(a) A DECLARATION that the indiscriminate arrest, torture and detention of the Applicants and other seventy-two (72) residents/house owners by the agents of the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents for two (2) days at the station of the 3rd and 5th Respondents from the 16th of December, 2013 to 17th of December, 2013 for no just cause is wrongful, illegal, unlawful, unconstitutional, null and void as it violates the Appellants’ fundamental rights as enshrined in under Sections 33, 34, 35, 36, 41 and 46 of the 1999
Constitution of the Federal Republic of Nigeria.
(b) A DECLARATION that the invasion of the Applicants’ communities by the agent of the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Respondents at about 4:30am on the 16th of December, 2013 without cause, is illegal, unlawful, oppressive, unconstitutional, null and void as it violates the Applicants and other residents’ fundamental rights as enshrined in under Sections 33, 34, and 36 of the 1999 Constitution of the Federal Republic of Nigeria.
(c) A DECLARATION that the forceful demolition of the Applicant’ houses/buildings and other one thousand five hundred (1,500) houses from the 16th of December 2013 to 17 of December, 2013 by the agents of the Respondents during the pendency of the matter in Court and without any Order of the Court is wrongful, illegal, unlawful, unconstitutional, null and void as it violates the Applicants’ and other residents’ fundamental rights as enshrined under Sections 43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria
(d) A DECLARATION that the forceful demolition of the Applicants’ houses/buildings and other one thousand five hundred (1,500) houses from
the 16th of December 2013 to 17 of December; 2013 by the agents of the Respondents with less than 48 hrs notice even when the short notice was meant for another community is wrongful, wicked, illegal, unlawful, unconstitutional, null and void as it violates the Applicants’ and other residents’ fundamental rights as enshrined under Sections, 43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria
(e) A DECLARATION that the continuous threats of arrest detention, intimidation and harassment of the Applicants and other residents by the agents of the Respondents without cause is illegal, oppressive, unconstitutional, null and void as it violates the Applicants and other residents’ fundamental rights as enshrined in under Sections 33, 34 and 36 of the 1999 Constitution of the Federal Republic of Nigeria
(f) AN ORDER COMPELLING the Respondents jointly and severally to pay the sum of N100,000,000,000.00 (One Hundred Billion Naira) to the Applicants and other residents of the demolished and invaded communities being general and exemplary damages for the unlawful and wrongful invasion and demolition of the Applicant houses and other one
thousand five hundred (1,500) houses in the communities without any Order of the Court
(g) AN ORDER OF PERPETUAL INJUNCTION restraining the Respondent jointly and severally their officers, agents, servants, privies or however called and connected from arresting, intimidation, harassing, humiliating detaining or disturbing the Applicants and other residents of the communities in any manner whatsoever on any fact connected with, or related to the facts of this case.
(h) Cost of action assessed at N5,000,000 (Five Million Naira) only.
(i) SUCH FURTHER ORDER OR OTHER ORDERS as this honourable Court may deem fit to make in the circumstances of this case.
Upon service of the processes on the Respondents, the 1st – 4th Respondents raised a preliminary objection and contended that the Appellants’ suit is predicated on title to land and that to that extent, the suit was wrongly commenced vide a fundamental rights procedure. The said preliminary objection can be found on pages 105 – 117 of the records.
?The Appellants replied and contended vide their counter affidavit and written address and denied that their suit was predicated
on title to land and that all their reliefs are within the confines of Chapter 4 of the Constitution of the Federal Republic of Nigeria 1999 which encapsulates all the fundamental rights. The Appellants also distinguished the case of Tukur v. Govt?of Taraba State which the 1st – 4th Respondents relied on.
The Respondents had canvassed in their Preliminary Objection that because in Tukur’s case an issue of chieftaincy which was not a fundamental rights matter was the principal relief and consequently the Supreme Court having held that since chieftaincy matter is not a fundamental rights issue, and because the chieftaincy matter was the principal declaratory relief sought by Tukur while also seeking other ancillary reliefs which bothered on fundamental rights, therefore by extension of legal logic, it was wrong for the Appellants to commence their action vide a fundamental rights procedure.
The argument of Appellants in response was that all their reliefs, whether principal or ancillary are within Chapter 4 of the Constitution of the Federal Republic of Nigeria 1999; hence it was proper for them to have commenced their action under the fundamental
rights enforcement procedure rules. They also made it clear that they did not ask for declaration of title to land as reasoned by the 1st – 4th Respondents.
On the 10th of July 2014, the trial Court gave ruling and relied on the claim or assertion of the 1st – 4th Respondents that the Appellants’ suit was predicated on title to land. Accordingly, the Appellants suit was struck out on grounds that the procedure of fundamental rights which was adopted by the Appellants was wrong which automatically denied the Court of jurisdiction. The ruling is on pages 219 – 228.
Aggrieved by this ruling, the Appellants have appealed to this Honourable Court vide a notice of appeal dated 15th August, 2014 but filed on the 20th of August, 2014. The said notice of appeal is on pages 229 – 233.
The Learned Counsel to the Appellant distilled the following two (2) issues from the Grounds of Appeal as follows:
(i) Whether there is any relief(s) of the Appellants(principal or main or ancillary) that falls outside Chapter 4??of the Constitution of the Federal Republic of Nigeria 1999 which houses the fundamental ?rights as to make the suit of the Appellants which was commenced vide fundamental right enforcement procedure rules incompetent thus leading
to its being struck out by the trial Court for want of jurisdiction – Ground one.
(ii) Whether it was proper to rely on the claim of the Respondents to make a finding on issue of jurisdiction and then come to the conclusion that the trial Court has no jurisdiction to entertain the Appellants’ suit – Ground two.
The Learned Counsel to the Respondents on the other hand formulated the following two (2) issues for the determination of this appeal as follows: –
(1) Whether it was proper for the Appellants to commence this suit under the fundamental Right Enforcement Procedure Rules 2009 – Grounds 1 & 2.
(2) Whether the trial Court had jurisdiction to adjudicate upon the suit as commenced by the Appellants under the Fundamental Right Enforcement Procedure Rules 2009 – Ground 1 and 2.
?On a careful perusal of the two sets of issues proposed by both the Appellants and the Respondents, the issues are exactly similar, but put differently. Having read the judgment of the Learned Trial Court, and in order to eliminate the duplicity in the issues set out for determination, I have rephrased for determination a sole issue which in my
considered view will bring ease to the management of the appeal as follows: –
“Whether it was proper for the Appellant to commence this suit under the fundamental Right Enforcement Procedure Rules 2002 to entitle the Court to jurisdiction over the matter”
Learned counsel to the Appellants submitted that, from the reliefs sought by the Appellants none of those reliefs is for a declaration of title to land. All the reliefs from 1 – 5 were declaratory reliefs on alleged infringement of the Fundamental Rights of the Appellants while reliefs 6, 7 & 8 were for damages, injunction and the omnibus relief. The application is based on an affidavit, that the Fundamental Rights to life, fair hearing, dignity of human person, to own property and freedom from compulsory acquisition of such property have been infringed upon and they stated how these rights were infringed upon. All these rights are rights which are guaranteed under Chapter 4 of the 1999 Constitution of the Federal Republic of Nigeria, and Section 46 (1) of the same Constitution enjoins any person who alleges that any of the provisions of Chapter 4 of the Constitution as it relates to
him / her has been infringed or contravened may apply to a High Court in that State for redress. The Appellants therefore approached the Lagos State High Court sitting at Badagry to seek redress. Such redress can be sought for under Section 46 (3) of the Fundamental Rights Law Enforcement Rules. The said Rules have the same force of Law as the Constitution itself. See Abia State University Uturu v. Chima Anyaibe (1999) 1 NWLR (Pt 439) 646 at 660 – 661.
Learned Counsel further submitted that it was wrong for the Trial Court to have declined jurisdiction on the grounds that the Appellant’s suit is not a purely fundamental rights action. The Court held that the Appellant’s main reliefs were not fundamental right breaches, rather it was the ancillary relief that were fundamental rights breaches. This finding of the Trial Court is fundamentally flawed having regard to the reliefs on the face of the Appellants’ application. The Trial Court could not pin point any of those reliefs which are outside the fundamental rights or to say which of the main relief that is outside the provisions of Chapter 4 or even to say which of the ancillary reliefs that fall within
the provisions of Chapter 4.
The Law is that a Court cannot adjudicate on ancillary reliefs where it has no jurisdiction to entertain the main claim especially where the determination of the ancillary claim must necessarily involve the consideration of the main claim. See: Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517.
The corollary to this is that where Court can entertain both the main and ancillary reliefs the Court should go ahead and assume jurisdiction.
The main contention of the Appellants in this appeal is that, for somebody to compulsorily acquire a person’s property contrary to Section 44 of the Constitution is a matter of breach of fundamental rights and is within the contemplation of the drafters of Section 44 of the Constitution. It is not a claim of title to land. See also Section 44 (a) & (b). The Law is settled that two matters can arise and be maintained contemporaneously in so far as the causes of action are different. See: Ohaki v. Agbaso (2010) 19 NWLR (Pt 1226) 172 at 202. See also Sea Trucks Nig. Ltd v. Anigboro (2001)10 WRN 78, (2001) 1 SC 45.
?Learned Counsel submitted further that, the general
principle of Law is that it is the claim of the Claimant (in this case the Applicants/Appellants) that determines the jurisdiction of the Court. See: Adeyemi v. Opeyori (1976) 6 – 10 SC 31. (At page 103 of the records) from ground 2, & 3 of the 5th, 6th, 7th & 8th (now 1st – 4th Respondent). Therefore the preliminary objection that averred and asserted that the Appellant’s claims are predicated on title to Land and the Trial Court that has keyed into this and believed them have thus come to the wrong conclusion that the Appellants’ claim were ancillary to the claim of title to Land. There was no claim of title to Land whatsoever by the Appellants.
In reply to the submissions above, the Learned Counsel for the 1st – 4th Respondents contended that the Appellants’ suit is predicated on title to Land and for the Applicants to succeed in this application, the Appellants must prove title. It is a trite law that in proof of title in Land Matters, oral evidence must be taken to prove the authenticity of the Appellants claim. The Fundamental Rights Procedure Rules 2009 does not provide for the taking of oral evidence. By the provisions of Order 3 Rule 1
of the High Court of Lagos State Civil Procedure Rules 2012, all civil actions are to be commenced by writ of summons, except as provided for by the Rules.
?This present action was wrongly commenced under Fundamental Right Enforcement Procedure Rules 2009 as the main claim of the Appellants borders on title to Land. The main claim in this suit is the alleged act of trespass to the Land in dispute. The Appellants cannot succeed in an action in trespass to Land without proof of title. The ancillary claim is the right to own property as entrenched in the Constitution. Also the alleged act of trespass of the Respondents by demolishing houses on the Appellant’s Land constitute trespass and nothing more, therefore before the Appellants are entitled to the reliefs sought in their statement they must establish title to the Land in dispute. See: See Trucks Nig. Ltd. v. Anigboro (2001) 3 NWLR (Pt 690) 159 on the correct approach in a claim for enforcement of Fundamental Rights to examine the relief sought the ground for such relief and the facts relied upon.
?Learned Counsel submitted further that in order to determine whether a Court has jurisdiction to entertain a
matter or not what is to be considered is the originating processes of the Plaintiff which generally are the writ of summons and statement of claim only. The Court shall not consider any other process filed be it affidavit or statement of defence. See: Adeyemi v. Opeyori (1976) 9 – 10 SC 31; Inakoju v. Adeleke (2007) 4 NWLR (Pt 1025) 427.
In the instant case where the action was commenced by way of an application for enforcement of Fundamental Human Rights pursuant to Fundamental Rights (Enforcement Procedure) Rules 2009, it is the originating motion, the Affidavit in support and statement of the Applicant that should be considered by the Court to determine whether the Court has the jurisdiction to determine the action as constituted.
???Learned Counsel further submitted that the main reliefs sought by the Appellants in their originating motion and statement was the alleged forceful demolition of the Appellants’ houses/buildings and the other one thousand five hundred (1500) houses from the 16th of December, 2013. For the Applicants to invoke the special jurisdiction of the High Court under Section 46 of the 1999 Constitution of the Fed. Rep. of Nig.
the principal or main claim sought by the Applicant must fall within one or more of the Fundamental Right provided for under Section 33 to 44 of the 1999 Constitution of the Fed. Rep. of Nig.
It therefore follows that an Applicant must ensure that the alleged breach of his Fundamental Right is his main complaint, otherwise, his application would be struck out for being incompetent. See: Uzoukwu v. Ezeonu II (1991) 6 NWLR (Pt 200) 708 at 751;W.A.E.C. v. Akinkunmi (2008) 9 NWLR (pt. 1091) 151; BRTC v. Egbuonu (1997) 12 SCNJ 99; Gafar v. Govt. of Kwara State (2007) 4 NWLR (Pr 1024) 375; Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 587 at 595; Borno Radio Television Corporation v. Basil Egbuonu (1997) 12 WLR (Pt. 531) 29; Tukur v. Governor of Taraba (1997) 6 NWLR (Pt 510) 549; Tukur v. Govt. of Gongola State (1989) 4 NWLR (pt. 117) 517 at 546.
???On the part of the Court, submissions made by Counsels on both sides are carefully examined. The convenient point to start is the examination as to when an application can be made to enforce fundamental right. The Appellants in this appeal had approached the High Court of Lagos
State sitting in Badagry vide an originating motion, and alleged that their fundamental rights under Section 43 & 44 of the Constitution which guaranteed freedom to own and acquire property (i.e Section 43) and freedom from compulsory acquisition of such property (i.e Section 44) have been infringed upon. The Appellants also claim their right to life, liberty, freedom of movement, right to fair hearing and dignity of human person i.e. Section 33, 34,35,36, 41 and 46 have been violated.
The claims put forward by the Appellants took place in Badagry in Lagos State of Nigeria. One of the indicia of jurisdiction as decided by the Supreme Court in Madukolu v. Nkemdilim (1962) 1 All NLR 587 at 595 is that the subject matter of the case is within the jurisdiction of the Court. jurisdiction may therefore imply the power or authority of a Court to adjudicate over a particular subject matter.
The Supreme Court in the case of Tukur v. Govt. of Gongola State (1989) 4 NWLR (Pt 117) 517 at PP. 560 – 561 Paras H – A, brought out the essentials of jurisdiction to include:
(a) The Legal capacity , the power and authority of a Court to hear and determine
a judicial proceeding in the sense that it has the right and power to adjudicate concerning the particular subject – matter in controversy;
(b) The geographical area in which and over which the Legal jurisdiction of the Court can be exercised . This area of authority is called the area of geographical jurisdiction or venue.
Both are important when one is considering the concept of jurisdiction and both must co-exist in any particular case to complete the circuit of jurisdiction.
From the above therefore, the High Court of Lagos State sitting at Badagry had the requisite jurisdiction; and the Appellants were therefore right to have approached it seeking the enforcement of their Fundamental Rights.
We had earlier on in this judgment highlighted the reliefs sought by the Appellants in their originating motion. The said reliefs which were eight (8) in number, four (4) of which were declaratory reliefs which related to or alleged arrest, torture and detention, continuous threats of arrests, detention, intimidation and harassment of the Applicants. The other three (3) of the declaratory reliefs related to the invasion and forceful demolition of
the Appellants’ properties. The last is the monetary claim for the sum of one Hundred billion Naira as general and exemplary damages for the unlawful and wrongful invasion and demolition of the Appellants’ houses.
In the 1st – 4th Respondent’s brief of argument, at Paragraph 4.11,the Respondents stated as follows:
”In the instant case where the action was commenced by way of an application for enforcement of Fundamental Human Right pursuant to the Fundamental Rights( Enforcement Procedure) Rules 2009 it is the originating motion, the Affidavit in Support and Statement of Applicant that should be considered by the Court to determine whether the Court has jurisdiction to determine the action as constituted.”
This is a clear stand of the 1st-4th Respondents which correctly represents the position of the Law on this subject matter.
The Trial Court in its ruling at page 226 of the record, strayed away or went into a frolic of its own, when it held that:- The claim of the Appellant in the originating motion arose from the assertion of ownership by the Nigerian Police over the land subject matter of the suit and the latter action in exercise of the said
ownership and recovery of possession of the land In other words inextricably intertwined in the claim of the Respondents is the issue of title Land, subject matter of this action
From the eight reliefs sought by the Appellants before it, the issue of title to Land never arose. We have been admonished by the Supreme Court on the Courts extending or limiting their jurisdiction. See Tukur v. Govt. of Gongola State pages 545 Para b, and 549 Paras C – D:
”The Court in this country without exception have no power to prescribe jurisdiction for themselves. Neither do they have power to expand or reduce their areas of jurisdiction. The exercise of their interpretative jurisdiction is to expound and declare the limit of their jurisdiction. Judges have no duty and indeed no power to expand the jurisdiction conferred on them but they have a duty and indeed jurisdiction to expound the jurisdiction conferred on them. In the process of expounding the jurisdiction conferred on them the Court have always emphasized the need to decline jurisdiction where its exercise will concern issues it has no jurisdiction to hear and determine African Press of Nigeria v. The Fed
Rep. of Nig (1985) I AII NLR 50 at 175 (1985) 2 NWLR (pt. 6) 137 at 165; Odunsi v. Aminu (1961) AII NLR 283 and Nwafia v. Ububa (1966) NMLR 219.
On the originating motion, the Affidavit and Statements of the Appellants at the Lower Court, there was no claim as to title or recovery of a piece of Land to warrant the Court below declining its jurisdiction to hear the Appellants who were before it for the enforcement of their fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules 2009. See also on this the case of Sea Trucks Nig. Ltd v. Anigboro (2001) 10 WRN 78, (2001) 1 SC 45 where the Supreme Court stated as follows:
” The Court’s correct approach in a claim for enforcement of fundamental Rights is to examine the relief sought, the grounds for such relief and the fact relied upon”
In the present case, the Court strayed away from the duty stipulated on it in Fundamental Rights Procedure, on the wrong notion, that the reliefs being sought for were inextricably intertwined to issue of title to Land.
Let me add strength to this position, by providing the meaning of” cause of action” stated by the Supreme Court in Tukur v.
Govt. of Gongola State (supra). The apex Court at page 581 para. H, stated as follows:
”By the expression “cause of action” is meant the factual base or some factual situation a combination of which makes the matter in litigation an enforceable rights or an actionable wrong; Ibrahim v. Osim (1988) 3 NWLR (pt. 82) 257; Thomas v. Olufosoye (1986) 3 NWLR (Pt 18) 669 at 682.”
It is thus clear from the above decision of the Supreme Court that the Trial Court should have examined the reliefs sought by the Appellants before it, to ascertain whether they have an enforceable right or an action wrong. The Trial Court failed in this duty.
Before I conclude, let me state the fact that, I do not consider this case as one which necessitates the invocation of the powers of this Court under Section 15 of the Court of Appeal Act, to proceed and examine those reliefs as claimed by the Appellants. The Appellants were never heard on their claims before the Lower Court, they must return to that Court to be heard first.
In the final analysis, I find this appeal to be meritorious on the basis of the sole issue determine.
?The appeal is allowed. The ruling of Hon.
justice Y. A. Adesanya of the high Court of Lagos State, sitting at Badagry in suit No. BD/254MFH/2014 on page 219 of the record, delivered on 10th day of July 2014 is hereby set aside by this Court.
This Court makes the following orders:
(1) The case file is to be sent back to the Hon. Chief Judge of Lagos State, for a fresh trial before another judge and not Hon. Justice Y. A. Adesanya.
No order as costs.
JOSEPH SHAGBAOR IKYEGH. J.C.A.: I agree.
YARGATA BYENCHIT NIMPAR J.C.A.: I had the privilege of reading the Judgment just delivered by my learned brother, SIDI DAUDA BAGE, JCA in advance and I am in complete agreement with the reasoning and conclusion arrived at In the lead Judgment.
The Judgment considered all the issues distilled by the parties and it leaves no room for me to add anything. I also set aside the ruling of HON. JUSTICE Y.A, ADESANYA delivered on the 10th of July, 2014. I abide by the consequential orders made In the lead Judgment.
Appearances
Ebun-Olu Adegborowa For Appellant
AND
H.O. Oyenuga DCL LSMJ with him, F.R Olugbamiya and C.W. Bello PSC, SSC LSMJ for 1st to 4th respondents For Respondent
