DR. BERNARD AFAM OJEKUDO v. MOHAMMED GANA & ORS
(2019)LCN/13380(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of May, 2019
CA/B/459/2014
RATIO
WHAT DETERMINES JUSTICE IN A SUIT
To begin with, it is trite that parties and claims by Plaintiff determine jurisdiction.PER PHILOMENA MBUA EKPE, J.C.A.
CAUSE OF ACTION: WHAT DETERMINES A CAUSE OF ACTION
It is imperative to note that a cause of action is determined by reference to the Plaintiff?s statement of claim. See ACTION CONGRESS V. INEC (2007) 18 NWLR Pt. (1065) 50 where the apex Court clearly stated thus:
The jurisdiction of the Court is determined by the cause of action of the Plaintiff as endorsed on the writ of summons or from both the writ of summons and the statement of claims.PER PHILOMENA MBUA EKPE, J.C.A.
THE IMPORTANCE OF THE PLAINTIFF’S CLAIM
It cannot be over-emphasized that the most relevant and important consideration is the Plaintiff’s claim. See the case of FELIX ONUORAH V. K.R.P.C. (2005) 6 NWLR Pt. 2911, 393 @ 408.PER PHILOMENA MBUA EKPE, J.C.A.
PARTY: PROPER PARTY: WHO IS A PROPER PARTY
It is worthy of note that whether a party is a proper party in a suit recourse must be had to the true meaning of parties.
Proper parties are those who, though not actually interested in the claim, are joined as parties for some good reasons. Desirable parties are those who have an interest in a suit or may be affected by the result thereof. Necessary parties are those who not only have interest in the matter, but also who in their absence, the proceedings could not be fairly and effectually dealt with. See the case of GREEN V. GREEN Supra.PER PHILOMENA MBUA EKPE, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
DR. BERNARD AFAM OJEKUDO Appellant(s)
AND
1. MOHAMMED GANA, SP.
2. CHARLES MORDI, SP.
3. COMMISSIONER OF POLICE, DELTA STATE POLICE COMMAND
4. GOVERNMENT OF DELTA STATE OF NIGERIA
5. ATTORNEY-GENERAL OF DELTA STATE
6. ATTORNEY-GENERAL OF THE FEDERATION
7. INSPECTOR-GENERAL OF POLICE
8. POLICE SERVICE COMMISSION Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of Federal High Court, Delta State, Asaba, delivered on the 20th day of May, 2014 in Delta State in Suit No. FHC/ASB/CS/75/2013.
FACTS OF THE CASE:
The Plaintiff now Appellant filed an action at the Federal High Court, Asaba for special and general damages against the Defendants/Respondents for alleged unlawful arrest, alleged trespass and malicious damage of the Plaintiff?s/Appellant?s properties, situate at Edeva Lane, Ozoro in Isoko North Local Government Area, Delta State.
The Appellant claimed that the 1st and 2nd Respondents unlawfully destroyed his properties, assaulted arrested and detained his aged father, siblings and in-law at the Nigeria Police Station Ozoro, Delta State.
?The 4th and 5th Respondents on the other hand filed a preliminary objection challenging the jurisdiction of the Court. The Respondents claim that the suit by provisions of Section 251 and 272 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) that the Federal High Court lacks jurisdiction to entertain same.
1
Pursuant to the foregoing, the Appellant prayed for the following orders:
i) A declaration that the Delta State Anti-Kidnapping and Anti-Terrorism law, 2013 in force in Delta State as at the 13th -14th of May 2013 and/or any law in force in Delta State as at the 13th -14th of May 2013 does not authorize/justify/provide for the destruction of the Plaintiff?s building by the Defendants and/or in the manner the Defendants jointly and severally did having regard to the circumstances of this case.
ii) The sum of N350,000.000.00 (Three Hundred and Fifty Million Naira) against the Defendants jointly and severally being damages for the pains, agony and trauma inflicted on the Plaintiff when between the 13th and 14th of May 2013 the Defendants either by themselves, their agents, servants and privies wrongfully and unlawfully assaulted and/or caused physical harm to and also unlawfully arrested and detained the Plaintiff?s aged father, siblings and in-law at the Nigeria Police Station, Ozoro within the jurisdiction of this Honourable Court on account of the Plaintiff?s building at Ozoro.
iii) The sum of N350,000.000.00 (Three Hundred
2
and Fifty Million Naira) being special and general damages against the Defendants jointly and severally in that the Defendants either by themselves, their agents, servants and privies wantonly, recklessly, maliciously and/or unlawfully damaged the residential building of the Plaintiff at Edevo Lane (also known as Ozarighe Street), Ozoro in Isoko North Local Government Area of Delta State by the Defendants between the 13th and 14th of May 2013 by arson/demolition.
iv) The sum of N250,000,000.00 (Two Hundred and Fifty Million Naira) being special and general damages against the Defendants jointly and severally in that between the 13th and 14th May 2013 the Defendants by themselves, agents, servants and privies stole/looted and carted away the moveable property of the Plaintiff and/or unlawfully created the opportunity for thieves to steal/loot and cart away the moveable property of the Plaintiff from the Plaintiff?s residential property at Edevo Lane (also known as Ozarighe Street), Ozoro in Isoko North Local Government Area of Delta State.
GENERAL DAMAGES for stealing/creating opportunity for persons to steal special works of art and craft,
3
furniture, enamel ware and other valuables stolen .N247,260,230.00 (Two Hundred and Forty seven Million, Two Hundred and Sixty Thousand, Two Hundred and Thirty Naira).
TOTAL = N250,000,000.00 (Two Hundred and Fifty Million Naira)
GRAND TOTAL OF claims in Relief (ii), (iii), and (iv) = N950,000,000.00 (NINE HUNDRED AND FIFTY MILLION NAIRA) ONLY.
When the matter came up on the 10th of October, 2013, the parties were absent, learned counsel for the Appellant made an Exparte application for service of the writ and other processes on the 6th, 7th and 8th Defendants and was granted by the Court.
On the 5th of December 2013, the 4th and 5th Respondents filed a preliminary objection wherein their learned counsel urged the Court to strike out the suit on grounds that it is an abuse of Court process.
In a considered ruling delivered on the 20th day of May 2014, the learned trial Judge came to the conclusion that the preliminary objection raised by the 1st, 2nd, 3rd and 8th Defendants lacks merit and was dismissed but transferred the suit to Ozoro State High Court for hearing and determination vide the powers vested on him by
4
Section 22 of the Federal High Court Act.
Dissatisfied by the ruling of the trial Court, the Appellant appealed to this Court by a Notice of Appeal filed on the 3rd day of June, 2014 wherein he raised four (4) grounds of Appeal and distilled the following issues for determination:
1. Whether the Federal High Court has jurisdiction to entertain this matter or not. This issue covers Ground 1 of the appeal
2. Was the learned trial Court right in deciding to strike out the names of the 6th and 7th Respondents from this suit in the circumstances of this case? This issue covers Ground 2 of the appeal.
The 4th and 5th Respondents on their part also formulated the following issues:
1. Was the learned Judge right in holding that the Federal High Court has no jurisdiction to entertain this matter?
2. Secondly, was the learned Justice also right in deciding to strike out the names of the 6th and 7th Respondents from this suit?
I have carefully considered both sets of issues which I presume are similar in meaning and I have however decided to adopt the issues formulated by 4th and 5th Respondents to wit:
1. Was the learned Judge
5
right in holding that the Federal High Court has no jurisdiction to entertain this matter?
2. Was the learned Justice also right in deciding to strike out the names of the 6th and 7th Respondents from this suit?
On issue one learned counsel to the Appellant submitted that the jurisdiction of a Court is confined, limited or circumscribed by the Constitution/Statute creating it. He referred to the case of DANGANA & ORS V. USMAN & ORS (2012) 208 LRCN 92 and Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides thus:
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 causes and matters:
(p) The administration or the management and control of the Federal Government or any of its agencies:
(q) Subject to the provision of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of
6
its agencies:
(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies ?provided that nothing in the provision of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any on any enactment, law or equity.?
He stated that it is the Federal High Court to the utter exclusion of a State High Court that has exclusive jurisdiction once the Federal Government or any of its organs or agencies has been sued.
He argued that the trial Court wrongly ruled that the Federal High Court does not possess the jurisdiction over this case.
He further stated that in NEPA V. EDEGBERO & ORS (2002) 18 NWLR Part 798, Pg 79 the Supreme Court interpreted and succinctly explained the effect of the provisions of Section 230 (1) (q) (r) and (s) which is impari material with Section 251 (i) (p), (q) and (r) of the said 1999 Constitution.
7
He submitted with the dictum of the Supreme Court in the case of UMEH & ANOR V. IWU & 3 ORS (2008) 2-3 SC (Pt. 1) 135 at 184 that it is the Federal High Court to the utter exclusion of a State High Court that has exclusive jurisdiction once the Federal Government or any of its organs or agencies have been sued.
On issue two, learned counsel to the Appellant submitted that the 6th and 7th Respondents were proper and necessary parties in the suit. He stated that in GREEN V. GREEN (1987) 3 NWLR Pt. 61, page 480, the Supreme Court held that it is improper to join as a Co-defendant a person against whom no relief is claimed and against whom the claimant has no cause of action and when the issues in controversy can be effectively and effectually determined without joining the party.
He further stated that a proper and necessary party in a suit is one whose presence is necessary for the effective and effectual determination of the issues in controversy or one who should be bound by the result or outcome of a case.
He submitted that the 6th and 7th Respondents are proper and necessary parties by virtue of the statutes clothing them with the right
8
to be sued. See Sections 150(1) and 215 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999.
He argued that the 7th Respondent is charged with the Supreme command of the Police Force and is answerable for torts committed by the subordinates over whom he exercises control.
Learned Counsel further submitted that the 6th and 7th Respondents are proper and necessary parties to the suit by the provisions of Order 9 Rules 5 and 6 of the Federal High Court (Civil Procedure) Rules, 2009.
In reply, learned counsel to the 4th and 5th Respondents submitted that the jurisdiction of a Court is confined, limited or circumscribed by the Constitution/Statue creating it. See DANGANA & ORS V. USMAN & ORS (2012) 208 LRCN page 92.
Counsel stated that jurisdiction of a Court is determined by the Plaintiff?s claim before the Court. See ONUORAH V. KADUNA REFINING & PETRO CHEMICAL CO. LTD (2005) 6 NWLR Pt. 921 page 393; TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR part 117 page 517.
On issue two, learned counsel to the 4th and 5th Respondents submitted that the 6th and 7th Defendants now Respondents are not necessary parties
9
in this suit as there is nothing claimed against them. He said the Plaintiff?s/Appellant?s case can completely, effectively and effectually be determined in their absence. See OJO V. OGBE (2007) 9 NWLR Pt. 1040 page 542 @ 557 – 559, paragraphs A-B.
RESOLUTION:
Going through the record of appeal and X-raying the entire grounds of appeal of the Appellant and the reply by the 4th and 5th Respondents, it is very clear to me that the issues formulated by both counsel are similar in meaning.
To begin with, it is trite that parties and claims by Plaintiff determine jurisdiction.
The history of the case is that on the 29th of September 2014, the Plaintiff/Appellant filed a claim against the Respondents to the effect that the Respondents have caused unlawful, reckless and malicious damage to the Plaintiff?s/Appellant?s properties situate at Edeva Lane, Ozoro in Isoko North Local Government Area, Delta State. The Plaintiff/Appellant further claimed that his aged father along with his siblings and in-law were unlawfully arrested by the 1st and 2nd Respondents.
?
However, the Respondents filed a preliminary objection at
10
the trial Court seeking for striking out of the Plaintiff?s claim on grounds that it was an abuse of Court process which was dismissed by the learned trial Judge on the ground that the application lacks merit but transferred the case to Ozoro State High Court for hearing and determination of the suit on grounds that the Court does not possess the jurisdiction over the case. NDLEA V. OMIDINA (2013) 16 NWLR Pt. 1381, 589.
The Appellant then filed a Notice of Appeal being dissatisfied with the ruling of the trial Court.
Like I stated earlier, the grounds of Appeal and the issues there from all border on the claim that the Federal High Court has no jurisdiction to determine the suit and the striking out of the names of the 6th and 7th Respondents from this suit.
Without much ado, it is elementary that claims/parties determine jurisdiction. It is worthy of note that the actions of the 1st and 2nd Respondents necessitated the above suit to the effect that the 1st and 2nd Respondent under the Delta State Anti-kidnapping and Anti-terrorism Law 2013 and which the State High Court can act judiciously on the claim and determine the matter without
11
the 6th and 7th Respondents.
It is imperative to note that a cause of action is determined by reference to the Plaintiff?s statement of claim. See ACTION CONGRESS V. INEC (2007) 18 NWLR Pt. (1065) 50 where the apex Court clearly stated thus:
The jurisdiction of the Court is determined by the cause of action of the Plaintiff as endorsed on the writ of summons or from both the writ of summons and the statement of claims.?
In the instant case, the claim of the Appellant at the lower Court borders on the alleged actions of the 1st and 2nd Respondent which are auxiliary reliefs claimed by the Appellant.
The immediate materials a Court ought to look at are the writ of summons and the averments in the statement of claim. Per Galadima JSC at Pg 118 Para U-EE in the case of KAKIH V. PDP & ORS (2014) 238 LRCN Pt. 79 the apex Court further emphasized ?that it is not in all cases in which the Federal Government or it?s agency is a party in the suit that the Federal High Court must willy-nilly without considering the nature of the aggrieved party?s claim assume jurisdiction.
It cannot be over-emphasized
12
that the most relevant and important consideration is the Plaintiff?s claim. See the case of FELIX ONUORAH V. K.R.P.C. (2005) 6 NWLR Pt. 2911, 393 @ 408. Going through the record of appeal and X-raying the entire claims by the Appellant and issues raised by both counsel, it is very clear to me that the cause of action revolves round proceedings which can be determined at the State High Court relying on the provisions of the Delta State Anti-kidnapping and Anti-terrorism Law 2013.
Subject to the foregoing, it is my ardent view that the State High Court can exercise jurisdiction in relation to the instant case. In the circumstance, this issue is resolved against the Appellant.
On the other hand, the 6th and 7th Respondents are not necessary parties, to the suit.
It is however not in dispute that the 6th and 7th Respondents are officers of the Federal Government.
It is worthy of note that whether a party is a proper party in a suit recourse must be had to the true meaning of parties.
Proper parties are those who, though not actually interested in the claim, are joined as parties for some good reasons. Desirable parties are those
13
who have an interest in a suit or may be affected by the result thereof. Necessary parties are those who not only have interest in the matter, but also who in their absence, the proceedings could not be fairly and effectually dealt with. See the case of GREEN V. GREEN Supra.
Flowing from the above, this suit can effectually and completely be settled without the 6th and 7th Respondents. They are indeed no necessary parties to this suit.
This issue is therefore resolved in favour of the Respondents against Appellant.
In sum, it is my ardent view that this appeal is bereft of merit and hereby dismissed.
The ruling of the Federal High Court sitting in Asaba, Delta State in Suit No. FHC/ASB/CS/75/2013 delivered on the 20th day of May, 2014 by C.M.A. Olatoregun-Isola J, is hereby affirmed.
I make no order as to costs.
Appeal Dismissed.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I agree.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.
14
Appearances:
A. O. OjekuoloFor Appellant(s)
Martins A. Omakor, Esq. for 4th & 5th RespondentsFor Respondent(s)
Appearances
A. O. OjekuoloFor Appellant
AND
Martins A. Omakor, Esq. for 4th & 5th RespondentsFor Respondent
