CROSS RIVER STATE FORESTRY COMMISSION & ANOR v. MURI EFFIONG ARCHIBONG ANWAN & ORS
(2012)LCN/5553(CA)
In The Court of Appeal of Nigeria
On Monday, the 9th day of July, 2012
CA/C/13/2009
RATIO
JURISDICTION: EFFECT OF LACK OF JURISDICTION TO ENTERTAIN PRINCIPAL CLAIM ON THE ANCILLARY CLAIMS
“In an action for the enforcement of fundamental rights, where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the court cannot be properly exercised, as it will be incompetent. Also, where a court lacks jurisdiction to entertain principal or main claims in an action, that court cannot adjudicate over the incidental or ancillary claims where a determination of such incidental claims must involve a consideration of the main claim. PER UZO I. NDUKWE-ANYANWU, JCA
JURISDICTION: WHAT IS EXAMINED BY COURT IN ORDER TO DETERMINE WHETHER AN ISSUE OF JURISDICTION WAS GENUINELY RAISED
In order to determine whether an issue of jurisdiction was genuinely raised, the court will examine the grounds of appeal and the whole proceedings which gave rise to the appeal. PDP vs. Abubakar (2007) 2 NWLR pt 1018 page 303. PER UZO I. NDUKWE-ANYANWU, JCA
FUNDAMENTAL RIGHTS: CORRECT APPROACH IN A CLAIM FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS
see Sea Trucks Nig. Ltd vs. Anigboro (2001) 2 NWLR pt 696 page 159. where Achike JSC opined that:
The correct approach in a claim for the enforcement of fundamental rights is to examine the reliefs sought, the grounds for such reliefs, and the facts relied upon. Where the fundamental right of the applicants is the basis of the claim, then redress may be sought for the enforcement of such rights through the Fundamental Right (Enforcement procedure) rules, 1979. However, where the alleged breach of right is ancillary or incidental to the main grievance or complaint, it is incompetent to proceed under the Rules. This is because the right, if any, violated, is not synonymous with the substantive claim which is the subjected-matter of the action. Enforcement of the right per se cannot resolve the substantive claim which is in any case different. PER UZO I. NDUKWE-ANYANWU, JCA
LAND LAW: WHICH COURT HAS JURISDICTION IN RESPECT OF PROCEEDINGS PERTAINING TO LAND
By virtue of S. 39 (1) of the 1978 Land Use Act, the High Court, which is defined to be the High Court of a Sate under S.51 of the Act, shall have exclusive original jurisdiction in respect of proceedings in respect of any land. This, therefore, excludes Federal High Court in matters pertaining to land See Attorney General River State v. Ohochukwu (2004) 6 NWLR Pt.869 page 340, Okafor vs. Okonkwo (2002) 17 NWLR pt 796 Page 262, Nzegwu vs. Omatu (1999) 2 NWLR pt 592 page 537. PER UZO I. NDUKWE-ANYANWU, JCA
JUSTICES
MOHAMMED IAWAI GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. CROSS RIVER STATE FORESTRY COMMISSION
2. COMMISSIONER OF POLICE, CROSS RIVER STATE – Appellant(s)
AND
1. MURI EFFIONG ARCHIBONG ANWAN
2. AKAN UWEM BASSEY
3. MONDAY UKO
4. IDORENYIN B. HARRY
5. ZENITH BANK OF (NIG.) PLC – GARNISHEE/RESPONDENT – Respondent(s)
UZO I. NDUKWE-ANYANWU, JCA (delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting in Calabar said to have been delivered on 8th October, 2007 but dated 5th October, 2007.
The 1st – 4th Respondent as plaintiffs filed a motion ex parte for leave to enforce their fundamental rights as enshrined in Section 44(1) of the 1999 Constitution.
The 1st-4th Respondents filed their statutory statement together with a verifying affidavit with Exhibits A-D and D1-D9 annexed. Leave was thereafter granted the 1st-4th Respondents on 1st March, 2007, following which they filed their motion and relied on the verifying affidavits together with the exhibits.
It was the case of the 1st to 4th Respondents that a group of persons suspected to be area boys stormed the Efut community, in Calabar south Local Government Area, and seized 10 sawing machines, 11 chains, 11 bars and 100 litres of fuel from the Respondents. The area boys came in 3 canoes. They were also armed with pistols and matchets. These area boys also beat the 1st Respondent’s Workmen operating in the forest.
When the 1st-4th Respondents went to retrieve the items seized from the police they were informed that 1st Appellant claimed that the 1st-4th Respondents had no permit to enter the land to fell and harvest trees. The 1st-4th Respondents argued that the land in question belonged to Efut Community and they were not given notice of the said Cross River State Government acquisition of the land. The Respondents had re-iterated that they had, by several letters, invited the Cross River State Government to pay compensation of N45m and take over the forest.
The 1st-4th Respondents argued that the items seized were fast deteriorating and claimed N200,000.00 in damages.
The learned trial Judge delivered his Ruling on 8th October, 2007 though dated 5th October, 2007. The Court in its considered ruling granted the reliefs of the 1st – 4th Respondents to the effect that the continuous detention of their items of trade is illegal null and void.
The trial Judge made an order releasing the said items to the Respondents. The court also awarded the Respondents N400,000.00 as compensation for depriving them of their tools of trade.
On 21st December, 2007, the 1st-4th Respondents filed an ex parte motion for leave to issue an order against the garnishee for the payment of N400,000.00. That application was struck out for lack of diligent prosecution. Thereafter, another ex parte motion was filed on 25th June, 2008. On 1st July, 2008 a garnishee order nisi was issued in favour of the 1st -4th Respondents attaching the funds of the 1st Appellant with Zenith Bank, the 5th Respondent.
Being dissatisfied, the Appellants filed a notice and 7 grounds of appeal. Time was, however, extended by this Court to file the Appellant’ brief.
The Appellants filed their Appellants’ brief on 20th July, 2009. The appellants distilled 6 issues for determination. They are as follows:
“1. Whether the learned trial Judge was correct when he refused to rely on the provisions of Section 44(2)(k) of the 1999 Constitution, the Forest Law of Cross River State, and the Forest Commission Law of Cross River, and then held that the appellants have infringed fundamental rights of the Respondents.
2. Whether the learned trial Judge was correct when he held that it is unfair, illegal and unconstitutional for government to acquire the Respondents’ land and refused to pay compensation to them.
3. Whether the learned trial Judge was correct when he ordered that the Respondents should not be rearrested on their own land and also awarded N400,000.00 to the Respondents as against the N200,000,00 claimed by the Respondents.
4. Whether the learned trial Judge had jurisdiction under Section 251 of the 1999 Constitution of Nigeria to consider and make pronouncement on whether or not compensation has been paid on the land constituted as forest reserves by the Cross River State Government.
5. Whether the learned trial Judge had jurisdiction to entertain the garnishee proceedings and made the order nisi absolute having been intimated of the non-service of the order nisi on the Appellants as stipulated by Section 83(2) of the Sheriffs and Civil process Act, 2004.
6. Whether the learned trial Judge was correct when he proceeded to make the garnishee order absolute without first considering and pronouncing on his jurisdiction to further entertain the garnishee proceedings, based on non-service of the order nisi raised and argued by the appellants in their written address.”
The Appellants upon receipt of the Respondents’ brief filed a reply on 8th February, 2012 and deemed properly filed and served on 22nd February, 2012.
The 1st -4th Respondents filed their brief on 14tn May, 2010 but deemed properly filed and served on 17th May, 2010. In it, they distilled 6 issues for determination as follows:
“1. Whether the learned trial Judge was right when he held that the Appellants have infringe on the Fundamental Right of the 1st – 4th Respondents as enshrined in section 44(1) of the 1999 Constitution.
2. Whether the learned trial Judge was right when he held that the Appellants having failed to comply with the requirements of Section 44(1) of the 1999 Constitution should not re-arrest the 1st – 4th Respondents.
3. Whether the sum of N400,000.00 (Four hundred thousand naira) awarded in favour of the 1st-4th Respondents was just and necessary in the circumstances of this case.
4. Whether the reference to non-payment of compensation by the trial Court amounted to a decision on the payment or non-payment of compensation on the land constituted as Forest Reserve by the Cross River State Government.
5. Whether the Appellants being the judgment debtors are competent parties to participate in the garnishee proceedings as well as appealing in Appeal No.CA/C/14/2009.
6. Whether the Appellants as judgment debtors can in the circumstances of this case complain that they were not served with the garnishee order nisi.”
The 5th Respondent also filed his brief on 2nd March, 2011.
Before getting into the arguments of the parties, it should be noted that the substantive Ruling in this appeal is CA/C/13/2009 whilst that of the garnishee proceedings is CA/C/14/2009. Both were consolidated by the orders of this court made on 29th June, 2009.
The issues as articulated by the Appellants are more comprehensive and I will, therefore, utilize them in the determination of this appeal.
I will treat issues 1 and 4 together as they border on jurisdiction of the court to hear this suit.
“3.1. Whether the learned trial Judge was correct when he refused to rely on the provisions of Section 44(2)(k) of the 1999 Constitution, the Forest Law of Cross River State, and the Forest Commission Law of Cross River, and then held that the appellants have infringed fundamental rights of the Respondents.
3.4. Whether the learned trial Judge had jurisdiction under Section 251 of the 1999 Constitution of Nigeria to consider and make pronouncement been paid on the land constituted as forest reserves by the cross River State Government.”
Learned Counsel for the Appellants submitted that the trial Court neglected to rely on the provisions of the Cross River State Law, Calabar/Cross River Estuaries and Mangrove Forest Reserve Order and section 44(2)(k) of the 1999 constitution of Nigeria.
Counsel referred the Court to the provisions of the Forest Law, CAP.F5 Vol.4 Laws of cross River state, 2004 Sections 5(1)(b), 25, 29(1), 31(1)(a), (h), (h) (i), (l) and (p), 35(1), 35(2) ,40(a), (g), and (k), 44(1), (2)(a) and (b) and 46. Other relevant provisions are Sections 9-14 of the Forest Regulations made pursuant to the provisions of the Forest Law, 18(1) of the Regulation, Section 19 of the Regulation, Section 24 of the Regulation, Sections 25, 26 and 27 of the Regulation. See also Sections 6(a), (c), (d) and (h) and Section 9(2)(a) of the Forestry Commission Law CAP.F6, Laws of Cross River State, 2004.
By Section 5(1)(b) of the Forest Law, the Commissioner may constitute as forest reserve any land in respect of which it appears that the growth on such land be protected. It was under Section 15 of the Forest Law, Cross River State Legal Notice No.2 of 2005 published in Cross River State of Nigeria Gazette No.19 of 24th November, 2005 Vot.38, the Cross River State Government constituted the forest which the 1st-4th Respondents exploited without permit as forest reserve.
Counsel submitted that once a forest is constituted a forest reserve, no one has the liberty to enter it and exploit without a permit. The provisions of Section 15 of the Regulation, provides that a permit is to be issued as in Forms 1-7 in the schedule to enable a person to exploit the forest reserves on stated conditions. By Section 18(1) of the Regulation, any permit issued has a life span of six months from the date of issue. And by Section 19 of the Regulation, it is an offence for a holder of a permit to refuse to produce his permit for inspection by a forest officer, police officer, etc. Under section 24 of the Regulation, any timber derived from a tree felled under a permit which on the expiry of such permit, has not been removed from the place of felling may be disposed of and the holder of the expired permit shall have no right thereto. Under Sections 25, and 27 of the Regulations, any permit issued could be cancelled, if the holder fails to comply with any of the conditions stated therein. It is also an offence for a holder of a permit to transfer same to another person without an approval. And within 15 days from the date of expiry or cancelation of any permit, the holder of such permit is enjoined to return the permit to the office from which it was issued.
Counsel submitted that the 1st-4th Respondents did not obtain any permit as provided by Section 15 of the Forest Regulations to fell or take forest produce from the forest reserve. The 1st-4th Respondents registered their power chain saws. The Appellants were justified in the action they took as Section 35 of the Forest Law, Cross River State gave the Appellants authority to seize, not only the forest produce harvested by the 1st-4th Respondents, but also the instruments or items utilized for the exploitation of the forest reserve without permit.
Counsel submitted that a combined reading of the Forest Law of Cross River State, 2004 and Section 44(2)(K) of the 1999 Constitution will show that the trial Judge was in error for failing to dismiss the 1st-4th Respondents’ application for their fundamental rights.
Counsel stated that courts derived their jurisdiction from the Constitution or the statute which establish or create them. This statute gives the courts its respective jurisdiction, courts therefore, can not assume jurisdiction where there is none. Any proceeding embarked by a Court without jurisdiction will be declared a nullity. See Gafar vs. Kwara Government (2007) 29 NSCC page 34; Tukur vs. Government of Gongola state (1989) 4 NWLR pt.117 page 517; Kasunmu vs. Shutta-Bey (2007) All FWLR pt.356 page 741.
Counsel submitted that there is no provisions in section 251 of the 1999 constitution from which the trial Court derived its jurisdiction to entertain or make pronouncement on matters relating to land constituted as forest reserve by any State Government in Nigeria including Cross River State Government. See Adisa vs. Oyinwola (2000) 10 NWLR pt.674 page 116 where the Court held:
“From the plain an unambiguous provisions of Section 39(1) of the Land Use Act, 1978 they vest original and exclusive jurisdiction in the clearest possible terms on the State High Court in respect inter alia of all causes or matters relating to land…”
See also Achebe vs. Nwosu (2003) 7 NWLR pt.818 page 105 where the court held that “the constitution does not vest jurisdiction in the Federal High court over land matters… It is only the courts established by the states as enumerated in section 59 and section 41 of the Land use Act that have original jurisdiction over land matters…”
Counsel submitted that in the instant case, the trial court granted 1st – 4th Respondents an order to enforce their rights to their moveable properties seized, not leave to enforce their right to receive compensation, and not leave to apply, to question, or nullify, the Forest Law of cross River State or the Calabar/Cross River State Estuaries and Mangrove Forest Reserve order of 2005.
Counsel referred to excerpt from the judgment thus:
“…Section 44(1) said that any interest in immoveable property can give rise to an applicant in this kind of proceeding. Being a member of Efut Community whose livelihood depend on logging and sawing of trees in the communal forest, it is unfair and indeed illegal and unconstitutional by virtue of section 44(1) for the Government to have compulsorily acquire the land and failed and or refused to pay compensation to the community whose land was taken over promptly as required under section 44(1) only to turn round and arrest them on their land… although this Court has no jurisdiction over the issue of compensation nevertheless, where the law is evoked as an instrument of persecution the court has the power to protect the weak by giving effect to the law. Although the State has promulgated the Estuaries and Mangrove Forest Reserve Order, 2005 under which the Applicants were arrested with their equipment and tools of trade for the purpose of prosecution, nonetheless it will amount to persecution if they are allowed to he put in double jeopardy. The Respondents, particularly the 1st Respondent has not shown cogent reason why two years after its purported taking over of the land they have failed to meet up its obligation under Section 44(1) of the constitution but only to resort to arresting community members who depend on the forest for their livelihood. It is my finding that before the Cross River State Government evoke the Cross River State Estuaries and Mangrove Forest Reserve law, it has to and must meet the requirement of section 44 (1) of the 1999 Constitution of the Federal Republic of Nigeria. This is so because the Constitution is supreme over all authorities or persons. It is also superior over all laws. See 1 (1), (2) and (3) of the Constitution. See also section 315 (1) (b) of the Constitution. Section 44(2) (k) cited by Mr. Ekpo cannot avail the Respondents because section 44(1) is the main law while section 44 (2) are the exceptions which the 1st Respondent must meet its obligation before they can evoke the provisions of section 44 (2) in other words, one cannot jump over the main law and rely on its subsidiary. For the reasons stated above the applicants in this case must succeed and it is thereby granted as follows:..”
Counsel submitted finally that the trial Judge had no jurisdiction to make pronouncement on the subject matter. See Section 251 of the (1999) Constitution. The Federal High Court has no jurisdiction over land and compensation. It was ultra vires the Federal High Court to make pronouncement on them. See Nkuma vs. Odili 6 NWLR Pt.977 page 587; Omotosho vs. Abdullahi (2008) 2 NWLR Pt.1072 page 526.
Learned Counsel urged the Court to set aside the Ruling of the learned trial Judge delivered on 8th October, 2007 and urged the Court to resolve these issues in favour of the Appellants.
In reply, the 1st – 4th Respondent learned counsel conceded to the existence of the Forest Law of Cross River State but stated that it was subject to S. 44 (1) of the 1999 Constitution which provided:
“No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall he acquired compulsorily in any part of Nigeria except in the manner and for the purpose prescribed by that among other things:
a. Requires the prompt payment of compensation therefore and
b. Gives to any person claiming such compensation a right of access.
Counsel submitted that the Appellants refused or neglected to pay compensation and still went ahead to promulgate an order cited as Calabar/Cross River Estuaries and Mangrove Forest Reserve order of 2005 purportedly to acquire the land belonging to the 1st -4th Respondent Community contrary to the mandatory provisions of S. 44(1) of the 1999 constitution on payment of Compensation.
Counsel contended that, failure of the Appellant to pay compensation, the 1st – 4th Respondent are not bound by that law. Counsel agreed with the holding of the trial Judge which read as follows:
“although the State has promulgated Estuaries and Mangrove Forest Reserve ordered under which the Applications were arrested with their equipments and tools of trade for the purpose of prosecution, nonetheless, it will amount to persecution if they are allowed to be put in double jeopardy. The Respondents particularly the 1st Respondent had not shown cogent reason why two years after its purported taking over of the land they have failed to meet up its obligation under section 44 (44) of the Constitution but only to resort to arresting community members who depend on the forest for their livelihood. It is my finding that before the Cross River State Government evoke the Cross River Estuaries and Mangrove Forest Reserve law, it has to and it must meet the requirement of section 44(1) of the 1999 constitution of the Federal Republic of Nigeria. This is so because the constitution is supreme over all authorities or persons. It is also superior over all laws. See section (1) (2) and (3) of the constitution. See also section 31 5 (1) (b) “See page 8 line 9-18 sec page 119 line 1-5 of the records.
Counsel went on to submit that the reliefs sought by the 1st – 4th Respondents in the court below was for declaration that the continuous holding of the 1st -4th Respondents’ properties viz 10 sawing engines, 11 chains and 11 bars is illegal, null and void and an order releasing the aforesaid items to the 1st -4th Respondents. Counsel contended that the 1st -4th Respondents tools of trade were seized on the pretext that they did not obtain permit from 1st Appellant. 1st – 4th Respondent maintained that their Community did not receive any notice of acquisition, and, if it was acquired, no compensation has so far been paid out to the Efut Community.
Counsel submitted that the Appellants have no rights to their land as they have not paid compensation
as envisaged by S. 44 of the 1999 Constitution. The trial Judge was, therefore, right in holding that he had no jurisdiction to enforce the rights of the 1st – 4th Respondents pertaining to land issues. In view of the crucial fact, they should not be re-arrested as the state had not paid compensation over the forest compulsorily acquired from the Efut community.
Counsel finally urged the Court to resolve these issues in favour of the 1st – 4th Respondents and dismiss this appeal.
Issue 1 and 4 argued together border on the jurisdiction of the Court to entertain this suit as it is presently constituted. It was instituted by a motion filed by the 1st – 4th Respondent for the enforcement of their Fundamental Rights as enshrined in Chapter iv and particularly S. 44(1) of the 1999 constitution.
Jurisdiction of the court wherever and whenever it “is challenged is treated seriously with dispatch. Where the jurisdiction of a court over a suit is challenged, the court is entitled under S. 6 of the 1999 Constitution to consider the Plaintiff’s claim before it, in order to decide, whether, it had the jurisdiction to entertain it Adeleke vs. O.S.H.A (2006) 16 NWLR pt 1006 page 608, Egbehu vs. 19 p (2006) 5 NWLR pt 942 page 146.
“It is settled that a court is competent when the court is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other; the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and the case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the court. It therefore means that where a court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at, in such a case amounts in law to a nullity irrespective of how well the proceedings was
conducted. Umanah vs. Attah (2006) 17 NWLR (pt. 1009) 503, Madukolu vs. Nkemdilim (1962) 1 All NLR 587, Skemconsult v. Ukey (1981) 1 SC 6, Benin Rubber Producers Ltd v. Ojo (1997) 9 NWLR (Pt.521) 388, Magaji v. Matari (2000) 5 SC 46.
In the instant case the subject matter in the Court below is what is in issue in this appeal. The learned state counsel argued that the Federal High Court has no jurisdiction over land matters in anyway whatsoever.
Also the trial Judge cannot make any pronouncement in the payment or non-payment of compensation concerning the acquisition of land.
“In an action for the enforcement of fundamental rights, where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the court cannot be properly exercised, as it will be incompetent. Also, where a court lacks jurisdiction to entertain principal or main claims in an action, that court cannot adjudicate over the incidental or ancillary claims where a determination of such incidental claims must involve a consideration of the main claim.
In order to determine whether an issue of jurisdiction was genuinely raised, the court will examine the grounds of appeal and the whole proceedings which gave rise to the appeal. PDP vs. Abubakar (2007) 2 NWLR pt 1018 page 303.
The 1st – 4th Respondents brought this suit under the Fundamental Rights Procedure. The question to be asked here is: What is the real question to be answered in the suit as it is presently presented? Can the seizure of these items be properly presented under the Fundamental Rights procedure?
The Appellants have argued strenuously that the main issue is that the 1st – 4th Respondents entered the Forest Reserve of the Cross River State Government, felling trees and harvesting same without permit. The officer of the 1st Appellant seized the tools of trade used in their illegal felling of the trees. The 1st – 4th Respondents claimed that they did not harvest the trees illegally for the reasons that, the land is theirs.
They also claimed that the 1st Appellant has not paid compensation, therefore, the said acquisition is illegal.
This is the crux of this suit. In sum, from all the arguments on both sides it can be deciphered that the issues are that of acquisition of land and the payment or non payment of compensation to the Efut Community. These do not fall under the rights envisaged in chapter iv of the 1999 Constitution.
These claims are outside the jurisdiction of the Federal High Court. Also the principle claims in this suit cannot be brought within the provisions of chapter iv of the 1999 Constitution.. The alleged breach as claimed by the 1st – 4th Respondent is just an ancillary complaint. see Sea Trucks Nig. Ltd vs. Anigboro (2001) 2 NWLR pt 696 page 159. where Achike JSC opined that:
The correct approach in a claim for the enforcement of fundamental rights is to examine the reliefs sought, the grounds for such reliefs, and the facts relied upon. Where the fundamental right of the applicants is the basis of the claim, then redress may be sought for the enforcement of such rights through the Fundamental Right (Enforcement procedure) rules, 1979. However, where the alleged breach of right is ancillary or incidental to the main grievance or complaint, it is incompetent to proceed under the Rules. This is because the right, if any, violated, is not synonymous with the substantive claim which is the subjected-matter of the action. Enforcement of the right per se cannot resolve the substantive claim which is in any case different.It would be important to look at the affidavit of the 1st – 4th Respondent. We should critically look at the reliefs sought and the grounds and facts upon which the reliefs are sought. I will set down paras 8 and 9 for ease of reference.
Para 8 “The forest in issue is the bonafide property of Efut Community which no notice of acquisition or taking over of the forest by the cross River State Government has been received. The Efut Community had course to write to the 1st Respondent informing it that if it was interested to acquire the forest from the Community it should pay the sum of N45,000,000.00 (Forty-five million Naira). The letters are dated 17th February, 2006 and 21st February, 2006.
Para 9 The Efut community also had course to write to the 1st Respondent reminding it through a letter dated 21st August, 2006 that the 1st Respondent has no right whatsoever to stop any person(s) either from Efut Community or authorized by Efut Community to do a legitimate business on the community’s land same having not been acquired appropriately by the government.
The principal claims of the 1st-4th Respondents would be deciphered from these two paragraphs above. These are not claims that can be brought under the provisions of chapter iv of the 1999 Constitution: they are not rights enforceable under the Fundamental Rights Procedure.
Moreover, these claims are not ones that the Federal High Court has jurisdiction to entertain. See S.251 of the constitution. Sea Trucks (Nig) Ltd vs. Anigboro (supra). Dongtoe vs. C.S.C plateau State (2001) 4 SC pt 11 page 43.
By virtue of S. 39 (1) of the 1978 Land Use Act, the High Court, which is defined to be the High Court of a Sate under S.51 of the Act, shall have exclusive original jurisdiction in respect of proceedings in respect of any land. This, therefore, excludes Federal High Court in matters pertaining to land See Attorney General River State v. Ohochukwu (2004) 6 NWLR Pt.869 page 340, Okafor vs. Okonkwo (2002) 17 NWLR pt 796 Page 262, Nzegwu vs. Omatu (1999) 2 NWLR pt 592 page 537.With the foregoing, it would be clear that the trial court did not have jurisdiction to deal with the subject matter of the principal claims of the 1st 4th Respondents. i.e. the question of acquisition of land and payment or non payment of compensation to the Efut community. By S.251 of the 1999 constitution, land matters do not fall under the purview of matters the Federal High Court should entertain.
The trial court had no jurisdiction to entertain the primary claim of this suit. Where the trial court lacks jurisdiction to entertain principal or main claims in an action, that court cannot adjudicate over the incidental or ancillary claims where a determination of such incidental claims must involve a consideration of the main claim. Tukur vs. Govt of Taraba State (supra). The trial court could not determine whether the seizure of those items was lawful or unlawful without determining the question of ownership of the Forest Reserve. Therefore, the trial court had no jurisdiction to deal with this suit under the guise of Fundamental Rights.
The suit brought under the Fundamental Rights Procedure against the appellants is inappropriate. The
1st – 4th Respondent ought to have brought an action for the tort of conversion or, and detinue which is more appropriate. The proceedings under the Rules were misconceived and incompetent and, therefore, the respective proceedings in the trial court is a nullity.
Since the trial court lacked jurisdiction in this suit, all the other issues, strictu sensu, are no longer before the court but now mere academics. However, I may add by wav of an aside that it is a firmly settled principle of law that a trial court or any court for that matter has no power to award to the 1st – 4th Respondents N400,000.00, that which, they did not claim. The 1st – 4th Respondent had claimed N200,000.00.It is, therefore, beyond the jurisdiction of the court to recast, rearrange or reconstrue the relief in a motion with a view to granting a relief at all costs. See Olatunji vs. Owena Bank of Nig Plc (2002)15 NWLR pt 790 page 272.
Where a court rules that it lacks the jurisdiction to entertain a suit, the proper order it should make is one of striking out or dismissal. Moreover the Federal High Court has the powers to transfer such matter to the state High court to entertain which are clearly outside its jurisdiction. See s. 22 (2) of the Federal High Court Act Cap 134 LFN 1990 and Mokelu vs Federal Commissioner for Works and Housing (1976) 6 ECSLR page 335 where the Supreme Court held
“…where a Judge of the Federal Revenue Court holds that he has no jurisdiction and then refuses to order a transfer, he can neither strike out the case nor dispose of it in any other manner. In our view, the trial Judge having rightly held that he had no jurisdiction was clearly in error when he ordered that the case he struckout as this is contrary to the Provisions of Section 22(2) of the Federal Revenue Court Decree. The Proper order in the circumstances was to transfer the case to the appropriate High Court in pursuance of the Provisions of section 22(2)…”
In sum, the appeal is meritorious and, therefore, allowed. The ruling of the Federal High court delivered on 8th May, 2007 in suit No FHC/CA/CS/77/2006 is hereby set aside. I make no orders as to costs.
MOHAMMED LAWAL GARBA, J.C.A.: I have read the draft of the lead judgment delivered by my learned brother, Uzo I. Ndukwe-Anyanwu, JCA, in this appeal. The views expressed and the conclusions reached on the issues raised in the appeal therein, are the same with mine and I agree with them. I find merit in the appeal and allow same for the reasons and in the terms set out in the lead judgment.
ISAIAH OLUFEMI AKEJU, J.C.A.: I have read before now the judgment of my learned brother, Uzo I. Ndukwu-Anyanwu, JCA just delivered in this appeal. I entirely agree with the consideration of the issues therein and the conclusion that the appeal is meritorious. I accordingly allow the appeal and abide by the consequential order made therein including the order as to costs.
Appearances
O. E. Asuquo Esq. State Counsel 1 for the Appellant For Appellant
AND
ENO T. Offong Esq. – for 1st – 4th for the Respondent For Respondent
