HON. JUSTICE RALIAT ELELU-HABEEB. & ANOR VS. THE HON. ATTORNEY GENERAL OF THE FEDERATION & ORS (2012)

HON. JUSTICE RALIAT ELELU-HABEEB. & ANOR VS. THE HON. ATTORNEY GENERAL OF THE FEDERATION & ORS

(2012) LCN/3983(SC)

In the Supreme Court of Nigeria

Tuesday, April 17, 2012

Case Number: SC. 281/2010

JUSTICES:

MAHMUD MOHAMMED JUSTICE, SUPREME COURT

CHRISTOPHER MITCHELL CHUKWUMA-ENEH JUSTICE, SUPREME COURT

MUHAMMAD SUIFULLAH MUNTAKA-COOMASSIE JUSTICE, SUPREME COURT

WALTER SAMUEL NKANU ONNOGHEN JUSTICE, SUPREME COURT

OLUFUNLOLA OYELOLA ADEKEYE JUSTICE, SUPREME COURT

MARY UKAEGO PETER-ODILI JUSTICE, SUPREME COURT

OLUKAYODE ARIWOOLA JUSTICE, SUPREME COURT

APPELLANTS:

HON. JUSTICE RALIAT ELELU-HABEEB (CHIEF JUDGE OF KWARA STATE)NATIONAL JUDICIAL COUNCIL

RESPONDENTS:

THE HON. ATTORNEY GENERAL OF THE FEDERATION

THE HON. ATTORNEY GENERAL OF KWARA STATE

POWER HOLDING COMPANY OF NIGERIA PLC.

RATIO:

MAHMUD MOHAMMED, J.S.C.(Delivering the Judgment by the Court): The action that gave rise to the present appeal number SC.281/2010 was brought by Originating Summons filed on 6th May, 2009 at the Federal High Court llorin by Honourable Justice Raliat Elelu-Habeeb, as the Plaintiff against the National Judicial Council, the Hon. Attorney General of the Federation, the Honourable Attorney General of Kwara State and the House of Assembly of Kwara State as Defendants. The Orginating Summons submitted two questions for determination followed by a request of 5 distinct reliefs from the trial Court. The questions for determination are –

‘1. Whether by the combined interpretation of Section 153(1)(i) paragraph 21(a) of the 3rd Schedule and Section 271 of the Constitution of the Federal Republic of Nigeria, 1999, the 3rd Defendant has the power to initiate or carry out any exercise of disciplinary control and or proceedings on the Plaintiff in the exercise of powers, duties and obligation as occupier of the office of the Chief Judge of Kwara State

Whether the letter of 3rd Defends dated 4th May, 2009 inviting the Plaintiff to Disciplinary proceeding in matters relating to, connected with and arising from the exercise of her functions as the Chief Judge of Kwara State does not amount to exercising the powers of the 1st Defendant under Section 153, 3rd Schedule, Part 1, paragraph 21 of the Constitution of the Federal Republic of Nigeria, 1999”

While the reliefs sought are as follows –

‘1. Declaration that a combined interpretation of Sections

4, 153, 292 and paragraphs 20, 21 of the 3rd Schedule, Part 1 of the Constitution, it is only the 1st Defendant that has the exclusive power and authority to query, command, order or inquire into any complaint against the Plaintiff arising from or connected with the performance of her functions as a Judicial Officer and in her office as the Chief Judge of Kwara State or recommend to the Governor her removal as Chief Judge of Kwara State.

A declaration that the letter of the Kwara State House of Assembly dated 4th May, 2009 is in breach and violation of the Constitution of the Federal Republic of Nigeria, 1999 in so far as it relates to, connected with the Plaintiff in exercise of her functions in the office of the Chief Judge of Kwara State and therefore null and void.
An order setting aside, nullifying and putting away the decision of the 3rd and 4th Defendants (Kwara State House of Assembly) contained in the 3rd Defendants letter dated 4th May, 2009 and any other steps taken thereon in so the Plaintiff, as the Chief Judge of Kwara State, the same being inconsistent with Sections 153, 197, 271(2) of the 3rd Schedule of the Constitution of the Federal Republic of Nigeria, 1999.
An order of Perpetual injunction restraining the Defendants particularly the 3rd Defendant and the Government of Kwara State by themselves, through their officers, privies or any other persons deriving power, command, authority, instruction or directives from any of the Defendants from acting or relying on, or continuing to rely on, act on, implement, give effect to or do anything to the prejudice of the Plaintiff based on the decision contained in the letter dated 4th May, 2009 in so far as the decision is related to the office of the Plaintiff as the Chief Judge of Kwara State.
An order of Perpetual Injunction restraining the Defendants from acting on the decision arising from and connected with the 3rd Defendant letter dated 4th May, 2009 and from taking any actions, acts, decisions, conclusions, directives, command and such other Deeds geared towards the office of the Plaintiff or doing anything which may have the effect of enforcing, continuing to give effect to, implement or finally putting into effect the conclusions and decision of the Kwara State House of Assembly.”

Although there were preliminary objections raised by the 2nd and 3rd Respondents to the competence of the Plaintiff’s action on various grounds touching on the jurisdiction of the trial Court to entertain and determine the action, the learned trial Judge decided to hear the preliminary objections together with the substantive action. It is observed that all the Defendants/Respondents to the Plaintiff’s Originating Summons except the 1st Defendant/Respondent, raised objections to the competence of the trial Federal High Court to adjudicate on the matter, having regard to the fact that the complaint of the Plaintiff was against the Executive and Legislative decisions of the Kwara State Government with no allegation against the Federal Government or any of its agencies. After hearing the parties on the preliminary objections and the Plaintiff’s claims on the merit on the various affidavits, further affidavits, counter-affidavits filed by the parties in support of their respective stand on the issues raised in the preliminary objections and the Originating Summons, the learned trial Judge in the judgment of the trial Court delivered on 23rd July, 2009; overruled the Preliminary Objections by dismissing them in holding that taking into consideration that the case of the Plaintiff involves the interpretation of the provisions of the Constitution of the Federal Republic of Nigeria 1999, the trial Court was conferred with jurisdiction to hear and determine the action. In this respect, the learned trial Judge after considering the claims of the Plaintiff against the provisions of the Constitution in support of the claims and the Defendants opposition of the same, came to the conclusion that the Plaintiff was entitled to all the reliefs claimed and proceeded to grant them.

The 2nd, 3rd and 4th Defendants/Respondents who were aggrieved with the judgment of the trial Federal High Court immediately lodged their respective appeals against the judgment to the Court of Appeal Ilorin Division. The notices of appeal however excluded the 1st Defendant/Respondent at the trial Court from the list of parties in the appeals at the Court of Appeal. However, on the application by the 1st Defendant/Respondent, it was later joined in the appeals on the side of the Respondents. The appeals were heard by a panel of full Court of five Justices of the Court of Appeal having regard to the Constitutional importance of the issues that arose for determination. In a split judgment of 4 to 1, delivered on 2nd July, 2010, that Court came to the conclusion that the trial Federal High Court lacked the jurisdiction to adjudicate upon the case of the Plaintiff and held that the matter ought to have been taken to the High Court of Justice of Kwara State for hearing and determination having regard to the parties and the subject matter of the case. In the same judgment however, the Court of Appeal proceeded to hear the matter on the merit and came to the decision that the trial Federal High Court was right in its decision on the merit of the claims of the Plaintiff and consequently affirmed the decision of the trial Court. It is glaringly clear from the record of the this appeal that all the parties at the Court of Appeal except the Hon. Attorney General of the Federation, were not happy with the judgment of the Court and therefore decided to appeal and cross-appeal to this Court against parts of the judgment that the parties were not satisfied with. While the Plaintiff at the trial Court and the 1st Defendant/Respondent in that Court, the National Judicial Council who were the Respondents at the Court of Appeal were not pleased with the decision of the Court of Appeal on the issue of jurisdiction of the Federal High Court to entertain and determine the case of the Plaintiff, the 3rd and 4th Defendants/Respondents at the trial Court, who were Appellants at the Court of Appeal, decided to challenge the decision of the Court of Appeal in deciding to hear and determine the matter on the merit inspite of its decision that the Federal High Court lacked jurisdiction to deal with the matter and therefore filed their respective cross-appeals against that part of the decision of the Court of Appeal. The Attorney General of the Federation who was on the side of the Appellants at the Court of Appeal, has neither filed an appeal nor a cross-appeal, as the cross-appeal earlier filed on his behalf was later withdrawn and struck out before the appeals and the cross-appeals proceeded to hearing in this Court.

Taking into consideration of the position of the parties at the trial Court, the Court of Appeal and in this Court where both Appellants/Cross-Respondents and the Respondent/Cross-Appellants chose to pursue their respective cases separately, I have decided to list the parties in this single appeal number SC.281/2010 as follows –

‘1. Hon. justice Raliat Elelu-Habeeb – 1st Appellant/Cross-Respondent

2. National Judicial Council – 2nd Appellant/Cross-Respondent

The Hon. Attorney General of the Federation – 1st Respondent
The Hon. Attorney General of Kwara State – 2nd Respondent/Cross-Appellant

3. The House of Assembly of Kwara State – 3rd Respondent/Cross-Appellant.’

Henceforth in this judgment, the parties shall be referred to according to their respective designations specified above.

Before proceeding to deal with the issues arising for determination in the appeals and the cross-appeals respectively, I shall first tackle the two separate notices of Preliminary objection raised by the 2nd and 3rd Respondents/Cross-Appellants to the appeal filed by the 2nd Appellant, on the grounds that the appeal of the 2nd Appellant as a whole is incompetent, irregular and misconceived and that the same ought to be struck-out because:

The Appellant is not an aggrieved person within the context of the judgment appealed against.
The decision appealed against is not in any way prejudicial to any interest of the Appellant.

iii. The decision appealed against has not deprived the Appellant of any right.

For the 3rd Respondent/Cross-Appellant, it was urged by its learned senior Counsel that the appeal by the 2nd Appellant is incompetent and ought to be dismissed or struck-out on the grounds among others, that:

The Appellant had no claim or counter-claim before the trial Court.
No relief was also sought against the Appellant by any of the parties before the trial Court.

iii. The Court of Appeal in allowing the appeal of the 2nd and 3rd Respondents/Cross-Appellants, did not also make any order against the Appellant.

The grievances arising from the decision of the Court of Appeal were/are referable only to the 1st Appellant whose case before the trial Court was held incompetent on the ground of want of jurisdiction of the trial Federal High Court.
The Appellant does not fall within the meaning of an aggrieved person in law to justify its filing an appeal to this Honourable Court against the decision of the Court of Appeal.
The Appellant has not suffered any legal grievance to justify its filing an appeal.

vii. The appeal by the Appellant is unsupportable in law and it is therefore an abuse of Court process.

viii. It is in the interest of justice to dismiss or strike-out the Appellants appeal.

For the 2nd Respondent/Cross-Appellant, it was argued by his learned Counsel that the Notice of Appeal as well as the Appellants brief of argument filed by the Appellant, are misconceived and incompetent, the Appellant not being a person aggrieved by the judgment of the Court of Appeal in the eyes of the law, if the definition of the term – person aggrieved given by this Court in Ngige v. Obi (2006) All F.W.LR. (Pt. 330) 1041 at 1088; Societe General Bank Nig. Ltd v. Afokoro (1999) 11 N.W.L.R. (Pt. 628) 521 at 537 – 538 and Sun Insurance Office Ltd v. Ojemuyiwa (1956) All N.L.R. 1, is taken into consideration; that with the appeal of the 1st Appellant/Cross-Respondent firmly on the ground against the judgment of the Court of Appeal on the issue of jurisdiction, the appeal by the Appellant on the same issue is an abuse of judicial process even on the fact of the pronouncement of the Court of Appeal that the Appellant must also have an input in the removal of the Plaintiff/1st Appellant/Cross/Respondent. Learned senior Counsel in further reliance on the case of Omotesho v. Abdullahi (2008) 2 N.W.L.R. (Pt. 1072) 526 at 543 – 544, asserted that the Appellant as a Defendant before the Court below, not having been deprived of something nor wrongfully refused anything to justify its complaint, had no business to appeal against the decision of the Court of Appeal and therefore urged this Court to sustain the preliminary objection and strike out the appeal.

The learned senior Counsel for the 3rd Respondent/Cross-Appellant also raised similar preliminary objection to the 2nd Appellants appeal virtually on the same grounds as raised by the learned senior Counsel to the 2nd Respondent/Cross-Appellant in that having regard to the decisions in Akinbiyi v. Adelabu (1956) S.C.N.L.R. 109 at 111; Mobil Production (Nigeria) Unlimited v. Monokpo (2003) 18 N.W.L.R. (Pt. 852) 346 at 398 – 399, the Appellant is not qualified as a person aggrieved to exercise any right of appeal against the judgment of the Court of Appeal and therefore urged this Court to sustain the preliminary objection.

What has to be determined in these preliminary objections is whether the learned senior Counsel to the preliminary objectors are correct in law in holding out or portraying the 2nd Appellant as a party which is not aggrieved or in anyway affected adversely by the judgment of the Court of Appeal on the issue of jurisdiction in that the trial Federal High Court lacked jurisdiction to hear and determine the claims of the Plaintiff/ 1st Appellant/Cross-Respondent in the Originating Summons filed in that Court. In the case of Akinbiyi v. Adelabu (1956) S.C.N.LR. 109, Foster-Sutton, F.C.J, of the then Federal Supreme Court had this to say on a person entitled to appeal at page 111:

‘The only person entitled to appeal is a person aggrieved. In Ex-parte Sidebotham 14 ch. D465 James L.J., said a ‘person aggrieved must be a man who has suffered a legal grievance’

This decision was cited and applied by this Court in a number of cases including Mobil Production (Nigeria) Unlimited v. Monokpo (2003) 18 N.W.L.R. (Pt. 852) 346 at 398 – 399 where Uwaifo, JSC put the position of the law thus:

‘It is true that the judgment of the trial Court which was affirmed by the Court below was given against only the 2nd Defendant. In effect the first Defendant is not aggrieved party that can appeal against the judgment of the Court below to this Court simply on the basis that it was a party to the proceedings in which judgment was given in reliance on the provision of Section 233(5) of the 1999 Constitution which says that: Any right of appeal to the Supreme Court from the decision of the Court of Appeal conferred by ‘this section shall be exerciable in the case of civil proceedings at the instance of a party thereto.’

That provision must be understood to apply to an aggrieved person or party. does not wrongfully deprive him of an entitlement or something which he had a right to demand. Unless there is such a grievance, he cannot appeal against a judgment which has not affected him since the whole exercise may turn out to be academic. Under no circumstance can it be argued that a party to proceedings who has not been affected by a decision may never-the-less appeal against it merely as a party.

Applying this decisions to the present case, it is not at all in dispute that the 2nd Appellant, the National Judicial Council was a party in the case at the trial Court as the 1st Defendant or 1st Respondent as the case was began by Originating Summons. It is also undisputed from the record of this appeal that the subject matter of the case brought before the trial Court, included the interpretation of the 1999 Constitution in Sections 153, 292 and paragraphs 20, and 21 of the 3rd Schedule, Part 1 thereof.

Although the preliminary objectors in their notices of appeal against the judgment of the trial Court to the Court of Appeal attempted to exclude the 2nd Appellant from the list of parties in the Court of Appeal, the Court of Appeal on an application joined the 2nd Appellant as a necessary party in the appeal before it as the 1st Respondent. As the decision of the Court of Appeal now being challenged in the appeal by the Appellant relates only to the aspect of the decision on the issue of jurisdiction, the Appellant as a party against whom the decision was given, has a right to appeal against it by virtue of Section 233(5) of the Constitution of the Federal Republic of Nigeria 1999. What remains to be determined in line with the decisions in the cases of Akinbiyi v. Adelabu (supra) and Mobil Production (Nig.) Unltd. v. Monokpo (supra), is whether the Appellant on the facts of this case has satisfied the requirement of being a person aggrieved, or a person who has suffered a legal grievance, or a person against whom a decision has been pronounced which has wrongfully refused him something or wrongfully affected his title to something. See Societe General Bank Nigeria Ltd v. Afokoro (1999) 11 N.W.L.R. (Pt. 628) 521 at 537 – 538. Looking at the 4 grounds of appeal contained in the Appellants Notice of appeal and the lone issue identified from the grounds of appeal for determination of the Appellants appeal, the only part of the judgment of the Court of Appeal being appealed against is that part declaring that the trial Federal High Court lacked jurisdiction to adjudicate in the action brought before that Court by the Plaintiff/1st Appellant/Cross-Respondent. Since Section 153 of the Constitution and paragraphs 20 and 21 of Part 1 of the Third Schedule to the same Constitution which deal with the composition of the National Judicial Council and its powers and role in the appointment and discipline of Judicial Officers is the subject of interpretation and application in the case at the trial Court and the Court of Appeal, it is certainly not correct to say that the Appellant is not a person aggrieved in the present case. The Appellant as a party in the case at the trial Court and the Court of Appeal whose decision is the subject of this appeal, is definitely a person who has suffered a legal grievance and a person against whom a decision has been pronounced as to the appropriate Court that has jurisdiction to interprete and apply the provisions of the Constitution in relation to its powers and duties under the Constitution. This case is not on all fours with the case of Mobil Production (Nig.) Unltd v. Monokpo (supra) where the judgment of the trial Court affirmed by the Court of Appeal was given against only the second Defendant thereby turning the first Defendant who sought to appeal to the Supreme Court against the concurrent judgments of the Courts below to a person not aggrieved that can appeal against the judgment of the Court. In the case at hand however, the judgment of the Court of Appeal declaring that the trial Federal High Court which heard and determined the case lacked jurisdiction to adjudicate in the matter, was definitely given not only against the 1st Appellant/Cross-Respondent who was the Plaintiff at the trial Court but also against the 2nd Appellant as well. Thus, for the above reasons, I am of the view that the 2nd Appellant/Cross-Respondents appeal is quite competent. The preliminary objections of the 2nd Respondent/Cross-Appellant and the 3rd Respondent/Cross-Appellant having failed are hereby dismissed.

I shall now proceed to deal with the appeals of the Appellants starting with the 1st Appellants appeal. The learned senior Counsel for the 1st Appellant Chief Awomolo in his Appellants brief of argument, Appellants reply brief and oral submission, pointed out that from the judgment of the trial Court, it is quite clear that the trial Court confined itself to the claims of the Plaintiff in determining the jurisdiction of the Court under Section 251(1)(q) of the 1999 Constitution. It is for this reason that in the Appellants brief of argument, only one issue was raised for determination. The issue reads:

‘1. Whether the Court of Appeal was right when it declared that the Federal High Court has no jurisdiction to interprete the provisions of the Constitution as contained in the Originating Summons of the Appellant when the interpretation affects exercise of Constitutional powers of the National Judicial Council, a Federal Government agency.”

The learned senior Counsel in arguing this issue asserted that the jurisdiction of Court to exercise judicial powers over any cause or matter is determined by the claims of the Plaintiff as stated in the case of Adeyemi v. Opeyori (1976) 9 – 10 S.C. 18 at 31. With regard to the exclusive jurisdiction of the Federal High Court under Section 251(1), learned senior Counsel called in aid several cases on the subject particularly Ladoja v. INEC and Ors. (2007) 7 S.C. 99 at 160 and Obi v. INEC & Ors. (2007) 7 S.C. 268 at 305 and argued that taking into consideration the parties in the case at the trial Court particularly the National Judicial Council which is directly connected with the appointment, discipline and removal of judicial officers under Section 153 and paragraphs 20 and 21 of part 1 of the Third Schedule to the Constitution, the Court of Appeal was in error in holding that the Federal High Court had no jurisdiction to determine the claims contained in the Originating Summons filed before it. Learned senior Counsel explained that the Appellant did not go to the trial Court to challenge her removal from office as errorneously held by the Court of Appeal but merely to complain against the conduct of the 3rd Respondent in its letter inviting her to the House of Assembly which falls within the jurisdiction of that Court under Section 251(1)(q) to adjudicate in all matters connected with the interpretation and operation of the Constitution so far as it affects the Federal Government or any of its agencies. Learned senior Counsel concluded by citing the case of NEPA. v. Edegbero (2003) F.W.L.R. (Pt. 139) 1556 to assert that the Federal High Court was right in holding that it has the jurisdiction to hear and determine the Appellants claims and therefore urged this Court to allow the appeal, set aside the decision of the Court of Appeal on the issue of jurisdiction and restore and affirm the decision of the trial Court.

In the 1st Respondents brief of argument filed on behalf of the Hon. Attorney General of the Federation by his learned senior Counsel Lawal Rabbana, the lone issue framed for the determination of the appeal is:

‘Whether the lower Court was right in holding that the Federal High Court lacked jurisdiction to entertain and determine the Appellants case when there was no claim nor cause of action against any agent of the Federal Government.’

Learned senior Counsel opened his argument by pointing out that all what is required in resolving the issue for determination is to answer the question of whether the Federal High Court has the jurisdiction to entertain the Appellants claims under Section 251(1)(q) of the Constitution taking into consideration of the definition of the word jurisdiction in the cases of D.E.N.R. Ltd v. Trand International Bank Ltd (2008) 18 N.W.L.R. (Pt.1119) 388 at 435 and Oduko v. Government of Ebonyi State of Nigeria & 3 Ors (2009) 3-4 S.C. 154 at 169; that from the questions for determination and the reliefs sought by the Plaintiff in the Originating Summons, it is glaring that the subject matter of the dispute in this suit is the removal from office of the Plaintiff/Appellant as the Chief Judge of Kwara State by the Kwara State House of Assembly and the Governor; that the subject matter of the suit is the office of the Chief Judge of Kwara State created by Section 271 of the 1999 Constitution which does not make it a Federal Government agency and that since the House of Assembly and the Governor of Kwara State whose actions are being challenged are not agents of the Federal Government within the contemplatation of Section 251(1)(q) of the Constitution, the Federal High Court lacks jurisdiction over them and the subject matter of the action. Learned senior Counsel while conceding that the National Judicial Council and the Attorney General of the Federation are agents of the Federal Government, but as no cause of action had been disclosed against them to vest jurisdiction in the Federal High Court, the Court below was right in its decision that that Court lacked jurisdiction in the matter if decisions of this Court in Inakoju v. Adeleke (2007) 4 N.W.L.R. (Pt. 1025) 427 at 588 – 589; Omomeji v. Kolawole (2008) 14 N.W.L.R. (Pt. 1106) 180 at 206 and Attorney General Kano State v. Attorney General of the Federation (2007) 6 N.W.L.R. (Pt. 1029) 164 at 192, are taken into consideration, particularly as in this case where the Plaintiff/Appellant has no claim whatsoever against the 1st Respondent or the 2nd Appellant, the National Judicial Council. Learned senior Counsel therefore concluded by urging this Court to dismiss the appeal.

For the 2nd Respondent, the Hon. Attorney General of Kwara State, his learned senior Counsel, Adelodun in the Respondents brief of argument filed on 22nd September, 2010, saw the issue for determination in this appeal as follows:

‘Whether having regard to the nature of this suit, particularly the reliefs sought, the lower Court was not right in holding that the Federal High Court had no jurisdiction to hear and determine the Appellants case.’

Learned senior Counsel to 2nd Respondent is also of the strong view that the law is well settled that in the determination of the question whether or not a Court has jurisdiction to adjudicate on a matter, the primary consideration is the Plaintiffs statement of claim, which in this case is the Appellants Originating Summons showing the reliefs sought as laid down in Adeyemi v. Opeyori (1976) 10 N.S.C.C. 455 at 464, cited and applied in Inakoju v. Adeleke (2007) 4 N.W.L.R. (Pt. 1025) 427 at 588 – 589, including the affidavit in support of the Originating Summons to the exclusion of any other processes especially those filed by the Respondents.

All the same, from the relevant process, the learned senior Counsel argued that the Appellants complaint and grievance before the trial Court was the action and the decision of the Kwara State Government, epitomized by the Governor and the House of Assembly; that the reliefs sought by the Appellant have nothing to do with any complaints against the National Judicial Council or the Attorney General of the Federation so as to vest the Federal High Court with jurisdiction in the matter under Section 251(1)(p)(q)(r) as rightly found by the Court below particularly following the decisions of this Court in NEPA v. Edegbero (2002) 18 N.W.L.R. (Pt. 798) 79 and Dr. Taiwo Oloruntoba-Oju & 4 Ors. v. Professor Shuaib O. Abdul-Raheem (2009) 13 N.W.L.R. (Pt. 1157) 83 at 127. The learned senior Counsel relying on a number of decisions of the Court of Appeal in Enweremadu v. Ohajuruka (2001) 43 W.R.N. 53 at 6; N.N.P.C. v. Okwor & Ors. (1998) 7 N.W.L.R. (Pt. 559) 637 at 650 and Minister for Works v. Tommas Nig. Ltd. & Ors. (2002) 2 N.W.L.R. (Pt. 752) 740 at 788, concluded that the Appellants case having failed to satisfy the two basic preconditions of the parties being Federal Government or any of its agencies and the subject matter of the action must relate to the validity or otherwise of the action or decision of the Federal Government or any of its agencies, the Court below was right in its decision that the Federal High Court lacked jurisdiction in the matter brought before it by the Plaintiff/Appellant and therefore urged this Court to dismiss the appeal most especially having regard to the cases of Odiase & Anor. v. Agho & Ors. (1972) 1 All N.L.R. (Pt. 1) 170 and Nwabueze v. Okoye (1988) 2 N.W.L.R. (Pt. 91) 664, the concurrent findings of fact by the two Courts below that the Appellants case is one challenging the decision of the Governor and the House of Assembly of Kwara State remains intact in the absence of any appeal against those findings.

For the 3rd Respondent, the Kwara State House of Assembly, in the Respondents brief of argument filed by its learned senior Counsel, Yusuf Ali on 29th October, 2010, the issue distilled from the 3 grounds of appeal filed by the 1st Appellant reads:

Whether having regard to the complaints of the (sic) Respondents and the reliefs sought by her in her originating summons, the Court of Appeal was not right and correct in holding that the Federal High Court lacked jurisdiction to hear and determine her case?’

Learned senior Counsel must have inadvertently referred to the Appellant as the Respondent in the above issue identified in the 3ro Respondents brief. The word Respondents therefore in the issue as identified must be read as the Appellant’? As far as the learned senior Counsel is concerned, the questions for determination and the reliefs sought by the Appellant in her Originating Summons reveal quite clearly that the Court of Appeal was right in its decision that the Federal High Court lacked jurisdiction to entertain the suit as formulated on the authority of the cases of Egbuonu v. B.R.T.C (1997) 12 N.W.L.R. (Pt. 531) 29 at 43 and Inakoju v. Adeleke (2007) 4 N.W.L.R. (Pt. 1025) at 588 – 589, as the Court will not examine the counter-affidavit of the Respondents even where it has been filed; that from questions for determination and the reliefs claimed in the Originating Summons, the Appellants case was against the action of the Respondent and the Governor of Kwara State as parties while the subject matter of the suit solely concerned the Government of Kwara State because there was no relief claimed against the National Judicial Council or the Attorney General of the Federation who were merely joined as Respondents without any basis.

On jurisdiction or competence of Court, learned senior Counsel relying on the leading authority on the subject in the case of Madukolu v. Nkemdelim (1962) All N.L.R. (Pt. 3) 581 at 589 – 590, (1962) 2 S.C.N.LR. 241, argued that the trial Court wrongly entertained the matter since the subject matter of the case being the power of the 2nd and 3rd Respondents to remove the Appellant as the Chief Judge of Kwara State by the Governor and the House of Assembly of Kwara State, is not within the jurisdiction of the trial Court under Section 251 of the Constitution as claimed by the Appellant. Several cases cited in support of this submission include Onuora v. K.R.P.C. Ltd. (2005) 6 N.W.L.R. (Pt. 921) 393 at 404 – 405 and Oloruntoba-Oju v. Abdul-Raheem (2009) 13 N.W.L.R. (Pt. 1157) 83 at 127. Learned senior Counsel referred to the finding of the trial Court at page 532 of the record to the effect that the Appellant was at the trial Court to challenge the decision of the Governor and the House of Assembly of Kwara State to remove her as the Chief Judge of the State and contended that the subject matter of the suit was clearly outside the jurisdiction of the trial Court and that the cases of Ladoja v. INEC (2007) S.C. 99 at 160 and Peter Obi v. INEC (2007) 7 S.C. 268, heavily relied upon by the Appellant, are not relevant to the present case.

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