IGP & ORS v. THE INCORPORATED TRUSTEES OF NIGERIAN BAPTIST CONVENTION & ANOR (2020)

IGP & ORS v. THE INCORPORATED TRUSTEES OF NIGERIAN BAPTIST CONVENTION & ANOR

(2020)LCN/14584(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, September 18, 2020

CA/K/273/2016

RATIO

PLEADINGS: LIMITATION OF ACTION.

It is trite that a defendant cannot without any form of notice ambush the plaintiff with the defence of limitation of action that the plaintiff’s action is statute barred. The law does not permit the doing of that. There must at least be some form of notice to the Respondent, outside a casual argument in the brief of argument, notifying the plaintiff/Respondent that the defendant/Appellant intends to challenge the competence of the action on ground that same is statute barred. Thus, the Appellants herein having not pleaded the issue in their 32 paragraph statement of defence before the lower Court or canvassed the issue thereat, or sought and obtained leave of Court to do so or even filed a Notice of Preliminary Objection raising the issue, cannot from the blues casually canvass the argument in its brief of argument. From whatever angle the appellant’s argument is looked at, it is incompetent. If it is considered in the stand point of the authorities that insist that the defence of limitation law is a special defence which must be specifically pleaded if available to the defendant at the time of the institution of action and if not so pleaded, canvassed and pronounced upon cannot be raised on appeal for the first time such as SAVANAH BANK OF NIG. LTD VS. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD. (1987) 1 NWLR (PT. 49) 212; KANO VS. OYELAKIN (1993) 3 NWLR (PT. 282) 399, the argument is incompetent. If it is considered on the stand point of the authorities that permit the raising of the issue for the first time on appeal with leave of Court sought and obtained, such as the case of F.R.I.N. VS. GOLD (2007) 11 NWLR (PT. 1044) 1 the Appellant’s argument is incompetent. Viewed in the light of the most liberal position of the apex Court which treats the limitation law as a threshold jurisdictional issue which can be raised at this Court (the Court of Appeal) or even the Supreme Court for the 1st time by a Notice of Preliminary Objection notwithstanding the provisions of the Rules of lower Court which requires the filing and exchange of pleadings, the Appellant’s argument is still incompetent, having not filed any notice of preliminary objection.
I know of no law or judicial authority which permits or allows a defendant such as the Appellants in this appeal who have not taken any of these steps namely:
a. Pleaded the issue of limitation of action that the plaintiffs action is statute barred; or (b) Canvassed the issue (of limitation of action) at the trial Court; or (c) Sought and obtained leave of Court to argue the issue; or (d) Filed a Notice of Preliminary Objection raising the issue,
to spring up surprises by a casual argument in a brief of argument that the plaintiffs’ suit is statute barred.
The Appellant herein took none of the listed steps, not even the filing of a Notice of Preliminary Objection notifying the Respondents of their intention to challenge the competence of the Respondents suit at the lower Court. Appellants cannot be allowed to raise or be heard to argue casually, for the 1st time in their brief of argument not arising from any valid issue formulated for determination of the Court, that the Respondents’ action is statute barred by operation of Section 2 of the Public Officer’s Protection Act. Such argument cannot be supported by or hinged on any law Statutory or judicial authority or even by Rules of Procedure. The argument is thus incompetent and is discountenanced. Per AMINA AUDI WAMBAI, J.C.A.

RATIO

PLEADINGS: APPEAL: CROSS-APPEAL

It is now very elementary as restated in several decisions of superior Courts that the traditional role of a respondent in an appeal is to defend the judgment or decision appealed against and not to attack it. In the event that he wishes to challenge or attack the judgment or any part of it or to depart therefrom, he must file a cross appeal to seek to correct any error standing in his way in the main appeal. If, as in this case the Respondent fails to file a cross-appeal, he cannot challenge, attack or argue against any finding of the lower Court appealed against. See ADEFULU VS. OYESILE (1989) 5 NWLR (pt 122) 377, OBI VS INEC (2007) LPELR – 24347 (SC); AFRICAN CONTINENTAL SEAWAYS LTD VS. NIG. DREDGING ROAD & GENERAL WORKERS LTD (1977) 5 SC 235. Contrary to the submission of the Respondents’ Counsel (supra) the learned trial judge had found and held at pages 203-204 of the record as follows:-
I have given a thought to reliefs 1 to 7 of the Plaintiffs having carefully scrutinized the reliefs vis a vis Section 251 (1) of the 1999 Constitution. The Plaintiffs action to my mind was aimed at declaring the forceful take over and lock up of the Plaintiff Church in disregard to the due process by the defendant’s unlawful act and therefore trespass, and claim damages for the wrongful act. In other words, the Plaintiffs action is aimed at protecting their possession of the Church building. It is my firm view that forceful takeover of the Plaintiffs Church and the lock up of same in the circumstances described in the Plaintiffs Statement of Claim is not the type of executive or administrative act envisaged under Section 251 (1) of the 1999 Constitution and the subsection thereto… It is clear from my analysis above that this Court lacks jurisdiction to entertain reliefs 1 – 7 of the Plaintiffs claim. For the above reasons, reliefs 1 – 7 are hereby struck out. Per AMINA AUDI WAMBAI, J.C.A.

RATIO.

PLEADINGS: ALTERNATIVE RELIEF

A party is permitted in law and free to plead in the alternative, separately and distinctly a relief or reliefs in the alternative to the main reliefs, as apparently done by the Respondents. EGBE VS. ADEFARASIN (1987) 1 NWLR (PT. 47) 1. Such a party who claims a principal relief and another relief in the alternative is simply saying that on the facts as presented by him, he is entitled to the principal relief but even if on those facts he is not so entitled to the principal relief, the facts entitle him to the alternative relief claimed. See G.K.F. INVESTMENT NIG. LTD. VS. NIG. TELECOM. PLC (2009) 7 SCNJ 92; HELP (NIG.) LTD. VS. SILVER ANCHOR NIG. LTD (2006) ALL NLR (PT. 311) 1833. Thus, a plaintiff who is uncertain whether the facts he relies on would entitle him to a relief, can claim the subsequent relief as a further or alternative relief.
The word “alternative” means a choice limited to one or two or more possibilities, the selection of which precludes any other possibility. An alternative relief therefore is a relief that can be granted instead of another relief and not in addition to the main relief. It is a separate relief.
It follows, and this is trite, that where a party claims reliefs in the alternative, the Court can only grant either of the reliefs and not both to avoid awarding double compensation on the same cause of action. The Court cannot grant the principal and the alternative relief at the same time. G.K.F. INVESTMENT NIG. LTD VS. NIG. TELECOMMUNICATIONS PLC (2009) 7 SCNJ 92 AT 116. It follows that where the main or principal relief succeeds, the alternative relief cannot be granted and there will be no need to consider the alternative relief. See ODU HOLDINGS LTD VS. LADE JOBI & ORS. (2006) 12 NWLR (PT. 994) 321; AGIDIGBI VS. AGIDIGBI (1996 6 NWLR (PT. 454) 300, 313.
This is why the Court has a duty to first consider whether the main claim ought to succeed or not, for it is only after the Court finds that the principal or main claim fails or it cannot grant same that it will proceed to consider the alternative claim.
In the instant appeal, the learned trial judge gave a due consideration to the nature of the principal reliefs vis-a-vis the facts and circumstances of the case and came to the conclusion that the Plaintiffs/Respondents’ action for a declaration that the forceful take over and lock up of the 2nd Respondent is unlawful, was aimed at protecting the 2^nd Respondent’s possession of the Church building which in his opinion, and rightly so, is not the type of executive or administrative act envisaged under Section 251 (1) of the 1999 Constitution, and thus rightly concluded that the Court lacks jurisdiction to entertain the reliefs 1 – 7 claimed by the Respondents.
Premised on the decision of the lower Court that it lacks jurisdiction to entertain the main or principal reliefs, learned Counsel for the Appellants submitted and cited in support of his argument, the case of OKOROMA VS. UBA (supra) that once a Court lacks the requisite jurisdiction to entertain the principal reliefs or has only partial jurisdiction over the matter, it must decline jurisdiction in respect of the entire matter and that, that is what the lower Court ought to have done.
I have looked at the OKOROMA’s case (supra) which relied upon and adopted the Supreme Court decision in the celebrated case ofTUKUR VS. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517 wherein the apex Court held that since the Federal High Court had no jurisdiction to entertain a chieftaincy matter which was the main claim of the principal issue, it cannot entertain the other claims which were ancillary or accessory to the main claim and that if there is a Court with jurisdiction to entertain all the issues raised in a matter including the principal issue, it is improper to approach a Court that is competent to determine only some of the issues. It declared the other reliefs 3, 4, 5 which though touched on fundament rights, as ancillary claims because they arose from the Chieftaincy matter (the deposition of the Emir) as collateral to, dependent on, and ancillary to the main reliefs 1 and 2. The Court then held that the incompetence of the Court to entertain and determine the principal question is enough to nullify the whole proceedings.
It has thus since become trite that where a Court has no jurisdiction to hear and determine the main claim the fact that it can only hear and determine the ancillary claim that arose from the main claim is enough for the Court to divest itself of jurisdiction to hear the case at all.
The Court cannot adjudicate on ancillary reliefs where it has no jurisdiction to entertain the main claim especially where the determination of the ancillary claim would necessarily involve the consideration of the main claim. TUKUR VS. GOVT. OF GONGOLA STATE (Supra); MUDASHIRU VS. PERSONS – UNKNOWN (2004) LPELR 7412 (CA); KAKIH VS. PDP & ORS. (2014) 15 NWLR (PT. 1430 374.
It is to be noted however, that the case of TUKUR VS. GOVT. OF GONGOLA STATE (supra) and all the cases decided on that line including the OKOROMAS’s case (Supra) talk of “ancillary relief” and not alternative relief. That notwithstanding, it is my candid view that where an alternative relief is in the nature of an ancillary relief and is dependent on or collateral, or ancillary to the main or principal claim, the same principle of law would apply irrespective of whether it is tagged as an “alternative” claim or relief. It is the degree of dependency of the alternative relief on the principal relief that determines whether the alternative relief is really a separate relief that can stand on its own or not. If the alternative relief cannot be determined without a substantial or considerable consideration of the principal relief, methinks, the alternative relief ceases to be a separate relief or claim. It becomes an ancillary relief to the principal relief.
I have herein before reproduced the principal reliefs 1 to 7 as well as the alternative relief for compensation. The alternative claim for compensation is for the building erected by the Respondents on the land with the permission and approval of the Appellants. It is a claim for improvement or development made on the Appellants’ land by the Respondents. In other words, the fulcrum upon which the Respondents’ alternative claim for compensation is based is on the improvement or development they made on the land with the permission of the Appellants the possession of which is now taken over by the Appellants. The raison d’etre for which the compensation is sought.
The learned trial judge rightly held that the Respondents’ main claim for declaratory reliefs sought was aimed at protecting the Respondents possession of the Church in respect of which an injunction was sought to restrain the Appellants from taking over the possession and locking up the Church. A claim for declaration to protect one’s possession of land and for an injunction to restrain the other from trespassing on the land is obliviously a claim outside the Jurisdiction of the Federal High Court as rightly held by the lower Court. Having so held, the learned trial judge ought to have declined jurisdiction to entertain the alternative claim because a proper and dispassionate consideration of the alternative claim for compensation would necessarily involve a substantial consideration of the principal claims; whether by the facts, circumstances and evidence on record, the takeover of possession of the 2nd Respondent and its lock up by the Appellants is illegal, unlawful and amounts to trespass or whether the Appellants are entitled to take over and lockup the 2nd Respondent at any time. Put more succinctly, the determination and grant of the alternative relief is dependent on the consideration of the main or principal claims, whose subject matter (in the main claim) is simply a land matter. The law is settled and clear with avalanche of decided authorities too numerous and notorious to require citation, that jurisdiction on land matters cannot be traced to the Federal High Court through Section 251 (1) of the Constitution nor through the Land Use Act, Sections 39, 41 & 42 of which specifically vest jurisdiction on the State High which they share only to some extent, with the Area Courts. The Federal High Court cannot bestow on itself or harvest any jurisdiction elsewhere outside the law, to assume jurisdiction in a case involving trespass to land or award of compensation arising from the trespass to land. SeeADETAYO & ORS. VS.ADEMOLA(2010) LPELR – 155 (SC) per Mohammed JSC at PP 20 – 24 Para B.
It is now beyond argument that the apex Court has long shifted its position in the case of NEPA VS. EDEGBERO & ORS. (2002) 18 NWLR (PT. 798) P. 79 wherein Tobi JSC dissented, its new position being that Section 251(1) of the Constitution has not conferred a blanket exclusive jurisdiction to the Federal High Court to hear and determine any suit involving the Federal Government or any of its agencies regardless of the subject matter of the suits. The mere fact that one of the parties in an action is the Federal Government or an agency of the Federal Government does not automatically confer jurisdiction on the Federal High Court. Where the cause of action does not fit into any of the enumerated and specified matters in Section 251(1) of the Constitution (land matter not being one of them), the fact that one of the parties in the suit is the Federal Government or its agency is irrelevant and immaterial in conferring jurisdiction on the Federal High Court over the subject matter. To vest jurisdiction on the Court, both conditions must co-exist.
1) At least one of the parties must be the Federal Government or its agent/agency;
2) The subject matters must be or fall within the matters specified in Section 251 (1) (a) – (s) see ADETAYO VS. ADEMOLA (2010) 15 NWLR (PT. 1215) 176; ONUORAH VS KADUNA REFINING & PETROCHEMICAL CO. LTD. (2005) 6 NWLR (PT. 921) 393; PDP VS SYLVA (2012) 13 NWLR (PT. 1316) 85; DINGYADI VS. INEC (2011) 10 NWLR (PT. 1255) 347; OLORUNTOBA – OJU VS. ABDUL-RAHEEM (2009) 13 NWLR (PT 1157) 83.
Obviously, land matter is not one of the enumerated items in Section 251 (1) of the Constitution.
I therefore agree with the appellants’ Counsel that the lower Court was in error when after it found that the Court lacks jurisdiction to entertain the principal claims assumed jurisdiction and entertained the alternative claim built on the main claim (Reliefs) and awarded N15,000,000.00 compensation to the Respondents against the Appellants.
In doing that the Court held.
“It is my considered view that the Plaintiffs by their alternative relief properly seek to challenge the decision or executive action of the defendants who having approved the erection of the Plaintiffs Church, and by a memo (Exhibit C), later declared the Plaintiffs Church illegal place of worship with the attendant taking over of the church. It is my firm view that the process or implementation of Exhibit C and the claim for compensation would involve administrative consideration of the defendants before making same. I find and hold that this Court has jurisdiction to entertain the alternative claim of the Plaintiff. See the case of CBN VS. SAP (NIG.) LTD. (2005) 3 NWLR (PT. 911) 152 and EGBEDION VS. SELO-OJEMEN (2004) 12 NWLR (PT. 887) 417”.
I find this later position (holding) by the lower Court very much incongruent with its earlier position that the Appellants’ action in the circumstances described in the statement of claim of the forceful takeover of the Plaintiff’s/Respondents’ Church, is not the type of executive or administrative act envisaged under Section 251 (1) of the Constitution.
It is difficult, nay practicably impossible, to reconcile the two conflicting positions. Having held that the Court lacks the subject matter jurisdiction to grant the main reliefs it is incomprehensible how it will be vested with jurisdiction to entertain the alternative relief built or dependant on the same subject matter. The thin line which the learned trial judge tried to draw between his two incongruent positions is in reality non existent.
The simple state of affairs is that the subject matter of the suit before the lower Court pertains to a piece of land owned by the Appellants, hitherto in the possession of the Respondents now taken over by the Appellants the recovery of which possession the Respondent sought against the Appellants before the lower Court or in the alternative, compensation for the money expended on the land by the Respondents. This is purely a land matter. In sum, the lower Court lacks jurisdiction to entertain the entire case including the alternative relief which is based on the principal claim the subject matter of which is outside its jurisdiction.
As the issue of jurisdiction is very fundamental , where a Court entertains and determines a case without the requisite jurisdictional competence, the Court only labours in vain, an exercise in futility as the entire proceedings and the decision resulting therefore are a nullity and liable to be set aside on appeal. See MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341, NWOSU VS. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT. 135) 715, NEPA VS. EDEGBERO & ORS. (2002) 18 NWLR (PT. 798) P. 79.
Accordingly, having found that the lower Court lacks jurisdiction to entertain the principal reliefs as well as alternative relief, I declare the entire proceedings and the decision resulting therefore including the award of the compensation in the sum of N15,000,000.00 as general damages in favour of the Respondents, null and void. Resultantly, I resolve the sole issue in this appeal in favour of the Appellants, allow the appeal and set aside the judgment of the lower Court for want of jurisdiction. Per AMINA AUDI WAMBAI, J.C.A.

RATIO

PLEADINGS: JURISDICTION OF THE FEDERAL HIGH COURT TO ENTERTAIN ALTERNATIVE RELIEF IN LIEU OF PRINCIPAL RELIEF.

Now, jurisdiction is the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction defines the power of Courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority. It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute. A Court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a Court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a Court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker. A Court cannot do more than this – Anibi Vs Shotimehin (1993) 3 NWLR (Pt 282) 461, Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt 1318) 423, Madumere Vs Okwara (2013) 12 NWLR (Pt 1368) 303, Opara Vs Amadi (2013) 12 NWLR (Pt 1369) 512. The jurisdiction of the Federal High Court is donated by the Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria. The opening part of the section reads:
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters.”
The provision then proceeded to list eighteen specific areas in paragraphs (a) to (r) where exclusive jurisdiction is conferred on the Federal High Court and, it concluded in paragraph (s), and “such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly”. What this provision does is that it made the Federal High Court a Court of enumerated jurisdiction, and not one of general jurisdiction, and as such for the Federal High Court to have jurisdiction over a matter, the subject matter of action must fit into one of the enumerated areas of its jurisdiction – Anao Vs Sun Publishing Ltd (2013) 3 NWLR (Pt 1341) 399, Merill Guaranty Savings & Loans Ltd Vs WorldGate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581, Ahmed Vs Ahmed (2013) 15 NWLR (Pt 1377) 274. This point was succinctly made by Nweze, JCA (as he then was) in Oladipo Vs Nigerian Customs Service Board (2009) 12 NWLR (Pt 1156) 563 at page 585 thus:
“… Before we return to this question, we must first return to the implication of the drafting technique in Section 251 (supra). The point must be noted that the draftsman of that section painstakingly itemized the subject matters that fall within the exclusive jurisdiction of the Federal High Court. In all, that section vested exclusive jurisdiction on the Federal High Court in eighteen major items… The implication of this technique is that the said Court (Federal High Court) is actually a Court of enumerated jurisdiction, that is, a Court whose jurisdiction is not only delimited by statute but whose jurisdiction is delineated in relation only to the subject matter enumerated therein.
It would, therefore, amount to wreaking havoc on the express letters and intendment of the said Section 251 to construe it as granting the said Court a carte blanche to deal with every conceivable matter (that is, beyond those expressly enumerated…
The effect of the circumscription of the jurisdiction of the Court to those eighteen major items is that whenever the question of jurisdiction of the Court is canvassed, attention ought to be focused on the subject matter of the suit, If the subject matter of the suit cannot be pitch forked into any of those eighteen major items, then that Court is not the proper forum for the ventilation of the action …“
The Courts have held that it is the case of the plaintiff as endorsed on the writ of summons and elaborated in the statement of claim or any other originating process that determines the jurisdiction of the Court – Elelu-Habeeb Vs Attorney General, Federation supra, Merill Guaranty Savings & Loans Ltd Vs WorldGate Building Society Ltd supra, Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt 1342) 503. Ahmed Vs Ahmed (2013) 15 NWLR (Pt 1377) 274. And that the Court does not look at the faces, designations or duties of the parties in a suit to determine whether or not it has jurisdiction- Dagazau Vs Bokir International Company Ltd (2011) 14 NWLR (Pt 1267) 261. Thus, where the cause of action of a plaintiff does not fit into one of the enumerated areas of jurisdiction of the Federal High Court as stated in Section 251 (1) of the Constitution, the fact that one of the parties to the action is the Federal Government or an agency of the Federal Government is irrelevant and it cannot give the Federal High Court jurisdiction over the subject matter Onuorah Vs Kaduna Refining & Petrochemical Co. Ltd (2005) 6 NWLR (Pt 921) 393, Adeogun Vs Fashogbon (2008) 17 NWLR (Pt 1115)149, Adetayo Vs Ademola (2010) 15 NWLR (Pt 1215) 169, Dingyadi Vs Independent National Electoral Commission (2011) 10 NWLR (Pt 1255) 347, Salim Vs Congress for Progressive Change (2013) 6 NWLR (Pt 1351) 501, Ahmed Vs Ahmed (2013) 15 NWLR (Pt 1377) 274. It is only where both the High Court and the Federal High Court have concurrent jurisdiction over a subject matter that the fact that one of the parties is the Federal Government or an agency of the Federal Government is relevant and it is in such a situation that the decisions in cases such as NEPA Vs Edegbero (2002) 18 NWLR (Pt 798) 79 and Abia State Independent Electoral Commission Vs Kanu (2013) 13 NWLR (Pt 1370) 69 become useful- Ahmed Vs Ahmed supra.
It is trite law that in determining the case made by a party, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party- Okochi Vs Animkwoi (2003) 18 NWLR (Pt 851) 1 and Mobil Oil Plc Vs Drexel Energy and Natural Resources Ltd (2004) 1 NWLR (Pt 853) 142. Reading the claims of the Respondent on the writ of summons and the contents of their pleadings, it is clear that their cause of action against the Appellants alternated between trespass to their church building erected on the land of Appellants, and for which they claimed damages and injunction in the principal claims, and forceful acquisition of the said church building and properties therein, and for which they claimed for adequate compensation for the acquisition in the alternative claim. Whichever way the claims are looked at, the case of the Respondents was a land litigation, both on the principal claims and on the alternative claim.
The present position of the law is that by the provisions of Section 39 of the Land Use Act and Section 272 (1) of the 1999 Constitution, the High Court has exclusive jurisdiction in all matters relating to land located within the areas designated as urban areas and subject to a statutory right of occupancy granted by the State Government while it shares concurrent jurisdiction with the customary Courts, the area Courts and other Courts of such equivalent jurisdiction in respect of all parcels of land located in the areas designated as rural or non-urban areas and subject to a customary right of occupancy granted by a Local Government- see for example, Aseimo Vs Abraham (1994) 8 NWLR (Pt 361) 191, Oyeniran Vs Egbetola (1997) 5 NWLR (Pt 504) 122, Adisa Vs Oyinwola (2000) 10 NWLR (Pt 674) 116, Oyedeji Vs Akinyele (2002) 3 NWLR (Pt 755) 586, Sanni Vs Ademiluyi (2003) 3 NWLR (Pt 807) 381, Erhunmwunse Vs Ehanire (2003) 13 NWLR (Pt 837) 353, Akanbi Vs Salawu (2003) 13 NWLR (Pt 838) 637, Okonkwo Vs Okonkwo (2004) 5 NWLR (Pt 865) 87, Attorney General, Rivers State Vs Ohochukwu (2004) 6 NWLR (Pt 869) 340, Ezukwu Vs Ukachukwu (2004) 17 NWLR (Pt 902) 227, The Minister of Works & Housing Vs Shittu (2007) 16 NWLR (Pt 1060) 351, Odetayo Vs Bamidele (2007) 17 NWLR (Pt 1062) 77, Madu Vs Mbakwe (2008) 10 NWLR (Pt 1095) 293,Idjakpa Vs Ajigbereno(2009) 6 NWLR (Pt 1136) 151, Onwuka Vs Ononuju (2009) 11 NWLR (Pt 1151) 174.
The Federal High Court has no jurisdiction over land matters, irrespective of the parties to the action, and it cannot grant a declaration of title to land – Achebe Vs Nwosu (2003) 7 NWLR (Pt 818) 103, Omotesho Vs Abdullahi (2008 2 NWLR (Pt 1072) 526, Federal Mortgage Bank of Nigeria Ltd Vs Lagos State Government (2010) 5 NWLR (Pt 1188) 570, Nigerian Institute of Medical Research Vs National Union of Road Transport Workers (2010) 12 NWLR (Pt 1208) 328, Adetayo Vs Ademola supra. The Federal High Court cannot adjudicate over a claim for compensation for land- Nkuma Vs Odili(2006) 6 NWLR (Pt 977) 587. It also cannot adjudicate over an action in trespass to landed property- Adetona Vs Zenith International Bank Plc (2009) 3 NWLR (Pt 1129) 577, Oladipo Vs Nigeria Customs Service Board supra. The lower Court thus lacked jurisdiction to adjudicate over the cause of action of the Respondents in this matter, both on the principal claims and on the alternative claim. It is for these reasons and the fuller exposition of the law in the lead judgment that I too find merit in the appeal and I allow same. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

INSPECTOR GENERAL OF POLICE (IGP) 2. THE COMMISSIONER OF POLICE (COP) KANO STATE COMMAND 3. KANO COMMANDANT, MOBILE POLICE FORCE, HOTORO KANO 4. A.S.P. JONAH BAITA APPELANT(S)

And

THE INCORPORATED TRUSTEES OF NIGERIAN BAPTIST CONVENTION 2. BAPTIST CHURCH, HOTORO, KANO RESPONDENT(S)

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): The genesis of this appeal is the judgment of Hon. Justice Fatum O. Riman of the Federal High Court, Kano Division in Suit No. FHC/KN/CS/08/2013 delivered on the 3rd day of July 2014.

On 12/02/1981 the Appellants granted a written permission to the Respondents to erect a temporary structure as a place of worship (for Church services) on the condition that the Appellants retain the ownership of the property/piece of land and may recover possession at any time they want. This was pursuant to an application by Hausa Baptist Church No. 3, Warri Road, Sabon Gari Kano.

Subsequently, between 1993 and 1995 the Appellants granted to the Respondents oral permission to put up a building (not higher than the mosque) or to add a block to the existing structure. Sequel to that oral permission, the Respondents expended millions of Naira in putting up a befitting Baptist Church Hall. However, between November 2009 and January, 2010 the Appellants informed the Respondents that the Nigeria Police Force has established a chaplaincy which recognizes only a mosque and two churches, one Catholic and the other

Protestant Church. The Respondents were demanded to handover the Baptist Church to the Police Chaplains (including ASP Jonah Baita – the 4th Appellant). The 2nd Respondent (the Baptist Church) was declared and listed as one of the illegal Churches and was consequently locked up under key and taken over by the Appellants who ordered Respondents to remove all Church properties and not to be seen within the premises. On 28/12/2012, the 4th Appellant broke into the Church Hall and started using the place for worship. Some items belonging to the Respondents are said to be missing and the Respondents denied the right of ingress and egress.

Thoroughly peeved, inconvenienced and publically embarrassed by the action of the Appellants, the Respondent approached the lower Court and sought vide their writ of summons filed on 26/01/2013, the following reliefs:
1. A declaration that the forceful take-over and locking up of the Baptist Church Hotoro Mobile 9 Barracks Kano by the defendants between 27th May 2012 is unlawful, illegal and contrary to Section 38 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
2. A declaration

that the forceful take-over and locking up of the Baptist Church Hotoro Mobile 9 Barracks Kano by the defendants between 14th June and July, ending 2012 by the defendants is unlawful, illegal and contrary to Section 38 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
3. A declaration that the forceful take-over and locking up of the Baptist Church Hotoro Mobile 9 Barracks Kano since 2nd October, 2012 till date is unlawful, illegal and contrary to Section 38 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
4. A declaration that the combined acts of the defendants jointly and severally in claim 1 – 3 (supra) is tantamount to trespass.
5. An order directing the defendants to vacate forthwith the premises of Baptist Church Hotoro Mobile 9 Barracks Kano.
6. An injunction restraining the defendants from any further forceful take-over and locking up of the Baptist Church Hotoro Mopol 9 Barracks Kano, without due process of law.
7. General damages in the sum of N1,000,000,000.00 (One Billion Naira Only).
In the alternative,
The plaintiffs claimed compensation in the sum

of N1,000,000,000.00 (One Billion Naira Only) for the building erected with the approval and permission of the defendants as well as congressional chattels of the plaintiffs now in exclusive control of the defendant.

Both the Respondents and the Appellants each called a sole witness. In its considered judgment delivered on 3rd July, 2014 the lower Court declined jurisdiction to entertain reliefs 1 – 7 but granted the Respondents alternative relief and awarded the sum of N15,000,000.00 general damages as compensation to the Respondents.

Disgruntled by the decision, the Appellants filed a Notice of appeal predicated upon 4 grounds as contained at pages 208 – 211 of the record of appeal seeking the reversal of the decision.

In their brief of argument settled by S.O. Ekwe Esq. and filed on 6/11/2017, 3 issues were nominated for determination, to wit:-
1. Whether or not the learned trial judge has the requisite jurisdiction to entertain the alternative claim of the Respondents and general damages of N15m having regard to evidence before the Court and the circumstances of this case.
2. Whether the alternative claim of the

Respondents is (sic) the nature of general damages or special damages that required (sic) specific pleading and strictly (sic) proof.
3. Whether or not the judgment of the lower Court awarding the huge sum of Fifteen Million Naira (N15,000,000.00) general damages as compensation is supported having regard to evidence before the honourable Court below.

On behalf of the Respondents whose brief of argument filed on 20/09/2019 and deemed 07/03/2019 was settled by S.U. Maiyaki Esq., 3 similar issues were also submitted for the consideration of this Court in the resolution of the appeal. The issues are
1. Whether the trial Court has the requisite jurisdiction to entertain the suit.
2. Whether the alternative claim of the Respondents is in the nature of General Damages or Special Damages that requires specific proof.
3. Whether the award of N15,000,000.00 (Fifteen Million Naira Only) as General Damages for compensation is supported having regards to the evidence before the trial Court.

The issues as formulated by both parties are similar which in my view can conveniently be subsumed in the Appellants first issue as the sole issue for

determination as recast below:-
Whether the learned trial judge has the requisite jurisdiction to entertain the Respondent’s alternative claim and award general damages having regard to the evidence on record and the circumstances of the case.

APPELLANTS SUBMISSION
In arguing the appeal, counsel for the Appellant submitted that the lower Court having found that it lacks jurisdiction to entertain the principal claim in reliefs 1-7 of the statement of claim, it ought to have declined jurisdiction to entertain the alternative claim which was entirely built upon the principal reliefs the law being settled that once a Court lacks jurisdiction to entertain the principal reliefs or comes to a conclusion that it has only partial jurisdiction over the matter, it must decline jurisdiction in respect of the whole matter, citing in support the case of OKOROMA VS DBA (sic) UBA (1999) NWLR (pt. 587) 359 at 364.

He contended that the alternative claim by its nature is a claim for compensation for an improvement or development made on the Appellants land and thus not within the jurisdiction of the Federal High Court and so is the claim for release of

the respondent’s chattel allegedly under the exclusive control of the Appellant, (a tortuous act of detinue) which is also outside the jurisdiction of the lower Court.

It was also submitted that the Exhibit C relied upon to cloth the lower Court with jurisdiction is not an executive action or decision of the police authority but a mere internal memo from the 4th Respondent to the 2nd Respondent and that assuming but not conceding that the alternative claim seeks to challenge the executive action of the Respondents per Exhibit C as erroneously held by the learned trial judge, the lower Court still lacks jurisdiction to entertain the claim same being statute barred by virtue of Section 2 of the Public Officers’ Protection Act, 2004, Respondents having failed to challenge the action within 3 months of its occurrence thereby rendering the Respondent’s cause of action unenforceable, citing in support the cases of OBIEFUNA VS. OKOYE (1961), ALL NLR 357; EGBE VS. ADEFARASIN (1987) 1 NWLR (PT. 47) 1 AT 15 among others.

It was Counsel’s further contention that the claim for compensation in the sum of One Billion Naira

(1,000,000,000.00) for the building erected with the Appellant’s approval and permission is not a claim for general damages but a claim for compensation for money spent in erecting a building on the Appellants’ land which renders it a claim for special damages which by law must be specifically pleaded and strictly proved to succeed, but the Respondents failed to do so. He referred to the case of ALHAJI OTARU & SONS LTD. VS. IDRIS (1999) 6 NWLR (PT. 606) 339; UNIPETROL (NIG) PLC VS. ADIREJE (W.A.) LTD. (2004) ALL FWLR (PT. 231) 1238.

The award of general damages though discretionary, learned Counsel submitted that the discretion is not exercised at large but judicially and judiciously and that the learned trial judge erroneously awarded the sum of N15m general damages as compensation only upon conjectures and speculation which cannot be supported or justified either by law or equity having regards to the facts, the evidence and circumstances of the case. He argued that the Respondents having not adduced any evidence of any amount spent on the Appellants’ premises but contrarily the Respondents sole witness having admitted in

cross-examination that there was no agreement to compensation upon retaking over of possession of the building that may be erected on the Appellant’s premises, there was no basis for the exercise of the discretion in favour of the Respondent. For this submission, he cited the case of A.G. OYO STATE VS. FAIR LAKES HOTELS (NO.2) (1989) 5 NWLR (PT. 121) 255 AT 277 – 278. Though Counsel conceded the general principles of law that an award of general damages is a matter for the trial judge which the Appellate Court should not interfere with, he listed circumstances when an appellate Court must intervene and posited that the award of N15m general damages as compensation to the Respondents is in the circumstance of this case, excessive and thus one of the conditions calling for intervention by this Court to set aside the award. He cited the cases of UBA LTD. VS. ODUSOTE BOOKSTORE (1995) NWLR (PT. 558) 564 – 565. Cases of OMONUMI VS. WAHABI (1976) 4 SC 37; NBC VS. ALFIJIR (MINING) (NIG) LTD (1993) 3 NWLR (PT. 27 346 and ODOGU VS. A.G.F. (1996) 6 NWLR (PT. 456) 508 AT 523 in urging us to intervene and set aside the award being a proper case for us to

do so.

Additionally, Counsel drew our attention to the factors to be considered where as in the case at hand, the judgment of the lower Court is attacked on ground of being against the weight of evidence and urged upon us on that ground, to also set aside the judgment of the lower Court. He called in aid the cases of ADEBAYO VS. ADUSEI (2004) 4 NWLR (PT. 862) 44 ratio 4 AT 60 and EGONU VS. EGONU (1978) 11 SC – 111.
Finally, learned Counsel urged that the issues be resolved in favour of the Appellants.

RESPONDENT’S SUBMISSION
In his response, learned Counsel to the Respondents restated the trite position of law that jurisdiction is the live wire of every proceeding in a Court of law and submitted that it is clear from the facts in the case that the subject-matter as well as the parties in the Suit fall within the exclusive jurisdiction of the lower Court, Federal High Court, as provided by Section 251 (1) of the Constitution of the Federal Republic of Nigeria as such the reliefs sought can only be entertained and granted by the Court, stressing that the executive or administrative action therein referred to must be an action

directed towards carrying out the policy of the Agency. It was therefore submitted that contrary to the Appellants’ contention, the Respondents’ claim is not one of the landlord and tenancy breach but clearly from the reliefs, that of forceful, illegal and wrongful eviction of the Respondents through a declaratory action of the Police administration as well as an injunction restraining the Appellants from locking up the 2nd Respondent without recourse to due process of law, contrary to Section 38 (1) of the Constitution, which acts, learned Counsel argued, falls squarely within the exclusive jurisdiction of the Federal High Court. He referred toINAH VS. OKOI (2002) 23 W.R.N. 103; OLADIPO VS. N.C.S.B. (2009) 12 NWLR 569 and OLORUNTOBA VS. ABDULRAHEEM (2009) 13 NWLR 15 ratio 6.

On the Appellants contention that the Respondents’ alternative claim for compensation is in the nature of special damages, it is the submission of the Respondents’ Counsel that the Respondents never mentioned special damages in their reliefs, their case being one for a declaration to restrain the Appellants from wrongful, illegal and forceful take over and

locking up of their Church for which the sum of one Billion Naira (1,000,000,000.00) was sought at the trial Court in the nature of genera damages which needs no specific proof. He called in aid the cases of GARI VS. SEIRAFINA (NIG.) LTD. (2008) 2 NWLR (PT. 1070), ISC and AKINKUGBE VS. E.H.N. LTD. (2008) 12 NWLR (PT. 1098) 375 SC, on what constitutes general and special damages. He reiterated that the lower Court did not award the N15,000,000.00 as special damages but as general damages and that the Appellants failed woefully to show by concrete evidence, in what way or ways the said sum of N15.0m awarded is not supported having regards to the evidence on record. He submitted that as correctly stated by the Appellant’s Counsel, the issue of award of damages is that of the trial Court and a discretion properly exercised should not be interfered with even if the Appellate Court would have exercised the discretion differently urging us not to interfere with the award, citing in support the cases of S.P.D.C. (NIG.) VS. OKONEDO (2008) 9 NWLR (PT. 1091) 85 and S.T.B. LTD. VS. ANUMNU (supra).

In response to the Appellant’s contention that the action

is statute barred, Respondents’ Counsel invited us to consider the provisions of Section 2 (a) of the Public Officers’ Protection Act vis a vis the Respondents’ reliefs particularly relief 3 which is a continuous injury even as at the time of filing the Suit and to hold that the Respondents’ claims do not fall within the limitation period. He relied on the cases of A.G. OF RIVERS STATE VS. A.G. OF BAYELSA STATE & ANR. (2013) 3 NWLR (PT. 1340) 123 AT 148 – 149 PARS H – A where the Supreme Court held as follows:
“In cases of continuance of damages or injury, the Act permits actions to be brought on the cessation thereof outside three months …”
and urged us to hold that the action is not statute barred, and on the whole to resolve the issues in favour of the Respondents.

RESOLUTION OF APPEAL
The soul of this appeal is the propriety of the learned trial judge entertaining the Respondents’ alternative relief and awarding the sum of N15,000,000.00 compensation to the Respondents the lower Court having declined jurisdiction to entertain the main or principal reliefs.

The Appellants’ Counsel has however canvassed the argument at paragraph 4.04 of his brief of argument that the Respondent’s suit is statute barred. This argument is out of place. The Counsel cannot be heard to canvass such an argument in this appeal. It is trite that a defendant cannot without any form of notice ambush the plaintiff with the defence of limitation of action that the plaintiff’s action is statute barred. The law does not permit the doing of that. There must at least be some form of notice to the Respondent, outside a casual argument in the brief of argument, notifying the plaintiff/Respondent that the defendant/Appellant intends to challenge the competence of the action on ground that same is statute barred. Thus, the Appellants herein having not pleaded the issue in their 32 paragraph statement of defence before the lower Court or canvassed the issue thereat, or sought and obtained leave of Court to do so or even filed a Notice of Preliminary Objection raising the issue, cannot from the blues casually canvass the argument in its brief of argument. From whatever angle the appellant’s argument is looked at, it is

incompetent. If it is considered in the stand point of the authorities that insist that the defence of limitation law is a special defence which must be specifically pleaded if available to the defendant at the time of the institution of action and if not so pleaded, canvassed and pronounced upon cannot be raised on appeal for the first time such as SAVANAH BANK OF NIG. LTD VS. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD. (1987) 1 NWLR (PT. 49) 212; KANO VS. OYELAKIN (1993) 3 NWLR (PT. 282) 399, the argument is incompetent. If it is considered on the stand point of the authorities that permit the raising of the issue for the first time on appeal with leave of Court sought and obtained, such as the case of F.R.I.N. VS. GOLD (2007) 11 NWLR (PT. 1044) 1 the Appellant’s argument is incompetent. Viewed in the light of the most liberal position of the apex Court which treats the limitation law as a threshold jurisdictional issue which can be raised at this Court (the Court of Appeal) or even the Supreme Court for the 1st time by a Notice of Preliminary Objection notwithstanding the provisions of the Rules of lower Court which requires the filing and

exchange of pleadings, the Appellant’s argument is still incompetent, having not filed any notice of preliminary objection.
I know of no law or judicial authority which permits or allows a defendant such as the Appellants in this appeal who have not taken any of these steps namely:
a. Pleaded the issue of limitation of action that the plaintiffs action is statute barred; or (b) Canvassed the issue (of limitation of action) at the trial Court; or (c) Sought and obtained leave of Court to argue the issue; or (d) Filed a Notice of Preliminary Objection raising the issue,
to spring up surprises by a casual argument in a brief of argument that the plaintiffs’ suit is statute barred.
The Appellant herein took none of the listed steps, not even the filing of a Notice of Preliminary Objection notifying the Respondents of their intention to challenge the competence of the Respondents suit at the lower Court. Appellants cannot be allowed to raise or be heard to argue casually, for the 1st time in their brief of argument not arising from any valid issue formulated for determination of the Court, that the Respondents’ action is

statute barred by operation of Section 2 of the Public Officer’s Protection Act. Such argument cannot be supported by or hinged on any law Statutory or judicial authority or even by Rules of Procedure. The argument is thus incompetent and is discountenanced.

I now turn to the soul of this appeal, which is the propriety of the lower Court entertaining and granting the alternative relief and awarding the sum of N15,000,000.00 compensation to the Respondents having declined jurisdiction to entertain the principal reliefs 1 – 7.

The contention of the learned Counsel to the Appellants is that the trial judge having declined jurisdiction to entertain the main or principal reliefs, he ought to have also declined jurisdiction to entertain the alternative relief which is built on the Respondents principal reliefs 1-7. His reasoning for this is that the alternative claim for compensation for improvement or development on the Appellants’ land is a claim between a landlord and tenant which is outside the jurisdiction of the Federal High Court as well as the claim for chattels.

The Respondents’ Counsel on the other hand contends that

the Respondents’ case rests on the forceful, illegal and wrongful take over and eviction of the Respondents through the declaratory action of the Police Administration, contrary to Section 38 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and an injunction restraining the Appellants from locking up the 2nd Respondent, which according to him, is squarely within the jurisdiction of the lower Court (the Federal High Court). Counsel proceeded and crossed the line when he submitted, contrary to the judgment of the lower Court and without filing a Notice of cross appeal, that the subject matter and the parties in the suit fall exclusively within the jurisdiction of the lower Court vide Section 251 (1) (q) of the Constitution and it is the only Court that can ground the reliefs sought by the Respondents.

a cross appeal to seek to correct any error standing in his way in the main appeal. If, as in this case the Respondent fails to file a cross-appeal, he cannot challenge, attack or argue against any finding of the lower Court appealed against. See ADEFULU VS. OYESILE (1989) 5 NWLR (pt 122) 377, OBI VS INEC (2007) LPELR – 24347 (SC); AFRICAN CONTINENTAL SEAWAYS LTD VS. NIG. DREDGING ROAD & GENERAL WORKERS LTD (1977) 5 SC 235.

Contrary to the submission of the Respondents’ Counsel (supra) the learned trial judge had found and held at pages 203-204 of the record as follows:-
I have given a thought to reliefs 1 to 7 of the Plaintiffs having carefully scrutinized the reliefs vis a vis Section 251 (1) of the 1999 Constitution. The Plaintiffs action to my mind was aimed at declaring the forceful take over and lock up of the Plaintiff Church in disregard to the due process by the defendant’s unlawful act and therefore trespass, and claim damages for the wrongful act. In other words, the Plaintiffs action is aimed at protecting their possession of the Church building. It is my firm view that forceful takeover of the Plaintiffs Church and the

lock up of same in the circumstances described in the Plaintiffs Statement of Claim is not the type of executive or administrative act envisaged under Section 251 (1) of the 1999 Constitution and the subsection thereto… It is clear from my analysis above that this Court lacks jurisdiction to entertain reliefs 1 – 7 of the Plaintiffs claim. For the above reasons, reliefs 1 – 7 are hereby struck out.

Therefore it is not open to the Respondent to canvass that the lower Court has jurisdiction to entertain the principal reliefs claimed, the learned trial judge having declined jurisdiction to entertain and grant those principal reliefs on ground of want of subject matter jurisdiction. Since there has been no cross appeal against the finding and decision of the lower Court declining jurisdiction over the principal reliefs, the only issue worthy of consideration from the grounds of appeal and the Appellants arguments, is the propriety of granting the alternative relief after declining jurisdiction over the principal reliefs.

A party is permitted in law and free to plead in the alternative, separately and distinctly a relief or reliefs in

the alternative to the main reliefs, as apparently done by the Respondents. EGBE VS. ADEFARASIN (1987) 1 NWLR (PT. 47) 1. Such a party who claims a principal relief and another relief in the alternative is simply saying that on the facts as presented by him, he is entitled to the principal relief but even if on those facts he is not so entitled to the principal relief, the facts entitle him to the alternative relief claimed. See G.K.F. INVESTMENT NIG. LTD. VS. NIG. TELECOM. PLC (2009) 7 SCNJ 92; HELP (NIG.) LTD. VS. SILVER ANCHOR NIG. LTD (2006) ALL NLR (PT. 311) 1833. Thus, a plaintiff who is uncertain whether the facts he relies on would entitle him to a relief, can claim the subsequent relief as a further or alternative relief.
The word “alternative” means a choice limited to one or two or more possibilities, the selection of which precludes any other possibility. An alternative relief therefore is a relief that can be granted instead of another relief and not in addition to the main relief. It is a separate relief.
It follows, and this is trite, that where a party claims reliefs in the alternative, the Court can only grant either of

the reliefs and not both to avoid awarding double compensation on the same cause of action. The Court cannot grant the principal and the alternative relief at the same time. G.K.F. INVESTMENT NIG. LTD VS. NIG. TELECOMMUNICATIONS PLC (2009) 7 SCNJ 92 AT 116. It follows that where the main or principal relief succeeds, the alternative relief cannot be granted and there will be no need to consider the alternative relief. See ODU HOLDINGS LTD VS. LADE JOBI & ORS. (2006) 12 NWLR (PT. 994) 321; AGIDIGBI VS. AGIDIGBI (1996 6 NWLR (PT. 454) 300, 313.
This is why the Court has a duty to first consider whether the main claim ought to succeed or not, for it is only after the Court finds that the principal or main claim fails or it cannot grant same that it will proceed to consider the alternative claim.
In the instant appeal, the learned trial judge gave a due consideration to the nature of the principal reliefs vis-a-vis the facts and circumstances of the case and came to the conclusion that the Plaintiffs/Respondents’ action for a declaration that the forceful take over and lock up of the 2nd Respondent is unlawful, was aimed at protecting the 2nd

Respondent’s possession of the Church building which in his opinion, and rightly so, is not the type of executive or administrative act envisaged under Section 251 (1) of the 1999 Constitution, and thus rightly concluded that the Court lacks jurisdiction to entertain the reliefs 1 – 7 claimed by the Respondents.
Premised on the decision of the lower Court that it lacks jurisdiction to entertain the main or principal reliefs, learned Counsel for the Appellants submitted and cited in support of his argument, the case of OKOROMA VS. UBA (supra) that once a Court lacks the requisite jurisdiction to entertain the principal reliefs or has only partial jurisdiction over the matter, it must decline jurisdiction in respect of the entire matter and that, that is what the lower Court ought to have done.
I have looked at the OKOROMA’s case (supra) which relied upon and adopted the Supreme Court decision in the celebrated case ofTUKUR VS. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517 wherein the apex Court held that since the Federal High Court had no jurisdiction to entertain a chieftaincy matter which was the main claim of the principal

issue, it cannot entertain the other claims which were ancillary or accessory to the main claim and that if there is a Court with jurisdiction to entertain all the issues raised in a matter including the principal issue, it is improper to approach a Court that is competent to determine only some of the issues. It declared the other reliefs 3, 4, 5 which though touched on fundament rights, as ancillary claims because they arose from the Chieftaincy matter (the deposition of the Emir) as collateral to, dependent on, and ancillary to the main reliefs 1 and 2. The Court then held that the incompetence of the Court to entertain and determine the principal question is enough to nullify the whole proceedings.
It has thus since become trite that where a Court has no jurisdiction to hear and determine the main claim the fact that it can only hear and determine the ancillary claim that arose from the main claim is enough for the Court to divest itself of jurisdiction to hear the case at all.
The Court cannot adjudicate on ancillary reliefs where it has no jurisdiction to entertain the main claim especially where the determination of the ancillary claim would

necessarily involve the consideration of the main claim. TUKUR VS. GOVT. OF GONGOLA STATE (Supra); MUDASHIRU VS. PERSONS – UNKNOWN (2004) LPELR 7412 (CA); KAKIH VS. PDP & ORS. (2014) 15 NWLR (PT. 1430 374.
It is to be noted however, that the case of TUKUR VS. GOVT. OF GONGOLA STATE (supra) and all the cases decided on that line including the OKOROMAS’s case (Supra) talk of “ancillary relief” and not alternative relief. That notwithstanding, it is my candid view that where an alternative relief is in the nature of an ancillary relief and is dependent on or collateral, or ancillary to the main or principal claim, the same principle of law would apply irrespective of whether it is tagged as an “alternative” claim or relief. It is the degree of dependency of the alternative relief on the principal relief that determines whether the alternative relief is really a separate relief that can stand on its own or not. If the alternative relief cannot be determined without a substantial or considerable consideration of the principal relief, methinks, the alternative relief ceases to be a separate relief or claim. It becomes an

ancillary relief to the principal relief.
I have herein before reproduced the principal reliefs 1 to 7 as well as the alternative relief for compensation. The alternative claim for compensation is for the building erected by the Respondents on the land with the permission and approval of the Appellants. It is a claim for improvement or development made on the Appellants’ land by the Respondents. In other words, the fulcrum upon which the Respondents’ alternative claim for compensation is based is on the improvement or development they made on the land with the permission of the Appellants the possession of which is now taken over by the Appellants. The raison d’etre for which the compensation is sought.
The learned trial judge rightly held that the Respondents’ main claim for declaratory reliefs sought was aimed at protecting the Respondents possession of the Church in respect of which an injunction was sought to restrain the Appellants from taking over the possession and locking up the Church. A claim for declaration to protect one’s possession of land and for an injunction to restrain the other from trespassing on the land is

obliviously a claim outside the Jurisdiction of the Federal High Court as rightly held by the lower Court. Having so held, the learned trial judge ought to have declined jurisdiction to entertain the alternative claim because a proper and dispassionate consideration of the alternative claim for compensation would necessarily involve a substantial consideration of the principal claims; whether by the facts, circumstances and evidence on record, the takeover of possession of the 2nd Respondent and its lock up by the Appellants is illegal, unlawful and amounts to trespass or whether the Appellants are entitled to take over and lockup the 2nd Respondent at any time. Put more succinctly, the determination and grant of the alternative relief is dependent on the consideration of the main or principal claims, whose subject matter (in the main claim) is simply a land matter. The law is settled and clear with avalanche of decided authorities too numerous and notorious to require citation, that jurisdiction on land matters cannot be traced to the Federal High Court through Section 251 (1) of the Constitution nor through the Land Use Act, Sections 39, 41 & 42 of which

specifically vest jurisdiction on the State High which they share only to some extent, with the Area Courts. The Federal High Court cannot bestow on itself or harvest any jurisdiction elsewhere outside the law, to assume jurisdiction in a case involving trespass to land or award of compensation arising from the trespass to land. SeeADETAYO & ORS. VS.ADEMOLA(2010) LPELR – 155 (SC) per Mohammed JSC at PP 20 – 24 Para B.
It is now beyond argument that the apex Court has long shifted its position in the case of NEPA VS. EDEGBERO & ORS. (2002) 18 NWLR (PT. 798) P. 79 wherein Tobi JSC dissented, its new position being that Section 251(1) of the Constitution has not conferred a blanket exclusive jurisdiction to the Federal High Court to hear and determine any suit involving the Federal Government or any of its agencies regardless of the subject matter of the suits. The mere fact that one of the parties in an action is the Federal Government or an agency of the Federal Government does not automatically confer jurisdiction on the Federal High Court. Where the cause of action does not fit into any of the enumerated and specified matters in

Section 251(1) of the Constitution (land matter not being one of them), the fact that one of the parties in the suit is the Federal Government or its agency is irrelevant and immaterial in conferring jurisdiction on the Federal High Court over the subject matter. To vest jurisdiction on the Court, both conditions must co-exist.
1) At least one of the parties must be the Federal Government or its agent/agency;
2) The subject matters must be or fall within the matters specified in Section 251 (1) (a) – (s) see ADETAYO VS. ADEMOLA (2010) 15 NWLR (PT. 1215) 176; ONUORAH VS KADUNA REFINING & PETROCHEMICAL CO. LTD. (2005) 6 NWLR (PT. 921) 393; PDP VS SYLVA (2012) 13 NWLR (PT. 1316) 85; DINGYADI VS. INEC (2011) 10 NWLR (PT. 1255) 347; OLORUNTOBA – OJU VS. ABDUL-RAHEEM (2009) 13 NWLR (PT 1157) 83.
Obviously, land matter is not one of the enumerated items in Section 251 (1) of the Constitution.
I therefore agree with the appellants’ Counsel that the lower Court was in error when after it found that the Court lacks jurisdiction to entertain the principal claims assumed jurisdiction and entertained the alternative claim built on the main

claim (Reliefs) and awarded N15,000,000.00 compensation to the Respondents against the Appellants.
In doing that the Court held.
“It is my considered view that the Plaintiffs by their alternative relief properly seek to challenge the decision or executive action of the defendants who having approved the erection of the Plaintiffs Church, and by a memo (Exhibit C), later declared the Plaintiffs Church illegal place of worship with the attendant taking over of the church. It is my firm view that the process or implementation of Exhibit C and the claim for compensation would involve administrative consideration of the defendants before making same. I find and hold that this Court has jurisdiction to entertain the alternative claim of the Plaintiff. See the case of CBN VS. SAP (NIG.) LTD. (2005) 3 NWLR (PT. 911) 152 and EGBEDION VS. SELO-OJEMEN (2004) 12 NWLR (PT. 887) 417”.
I find this later position (holding) by the lower Court very much incongruent with its earlier position that the Appellants’ action in the circumstances described in the statement of claim of the forceful takeover of the Plaintiff’s/Respondents’

Church, is not the type of executive or administrative act envisaged under Section 251 (1) of the Constitution.
It is difficult, nay practicably impossible, to reconcile the two conflicting positions. Having held that the Court lacks the subject matter jurisdiction to grant the main reliefs it is incomprehensible how it will be vested with jurisdiction to entertain the alternative relief built or dependant on the same subject matter. The thin line which the learned trial judge tried to draw between his two incongruent positions is in reality non existent.
The simple state of affairs is that the subject matter of the suit before the lower Court pertains to a piece of land owned by the Appellants, hitherto in the possession of the Respondents now taken over by the Appellants the recovery of which possession the Respondent sought against the Appellants before the lower Court or in the alternative, compensation for the money expended on the land by the Respondents. This is purely a land matter. In sum, the lower Court lacks jurisdiction to entertain the entire case including the alternative relief which is based on the principal claim the subject

matter of which is outside its jurisdiction.
As the issue of jurisdiction is very fundamental , where a Court entertains and determines a case without the requisite jurisdictional competence, the Court only labours in vain, an exercise in futility as the entire proceedings and the decision resulting therefore are a nullity and liable to be set aside on appeal. See MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341, NWOSU VS. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT. 135) 715, NEPA VS. EDEGBERO & ORS. (2002) 18 NWLR (PT. 798) P. 79.
Accordingly, having found that the lower Court lacks jurisdiction to entertain the principal reliefs as well as alternative relief, I declare the entire proceedings and the decision resulting therefore including the award of the compensation in the sum of N15,000,000.00 as general damages in favour of the Respondents, null and void. Resultantly, I resolve the sole issue in this appeal in favour of the Appellants, allow the appeal and set aside the judgment of the lower Court for want of jurisdiction.

The Appellants are entitled to cost assessed at N50,000 against the Respondents. These shall be the

orders of this Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading Judgment of my learned brother Wambai JCA just delivered. I am entirely in agreement with the reasoning and conclusion in the lead Judgment. The trial Court had rightly held that it had no jurisdiction to entertain the principal reliefs claimed by the Respondents. That should have ended the matter. It could not go ahead to consider the alternative reliefs since they arose from the same facts as the principal claims – KAKIH VS. PDP & ORS. (2014) 15 NWLR (PT. 1430) 374. I too therefore allow the appeal and set aside the Judgment of the trial Court delivered on the 3rd July 2014.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Amina Audi Wambai, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.

The issue arising in this appeal is whether or not the lower Court, the Federal High Court sitting in Kano, possessed the requisite jurisdiction to hear and

determine the alternative claim of the Respondents and to award them judgment thereon. The lower Court had ruled that it has no jurisdiction to entertain the principal claims of the Respondents, but proceeded to consider the alternative claim.

that a Court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker. A Court cannot do more than this – Anibi Vs Shotimehin (1993) 3 NWLR (Pt 282) 461, Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt 1318) 423, Madumere Vs Okwara (2013) 12 NWLR (Pt 1368) 303, Opara Vs Amadi (2013) 12 NWLR (Pt 1369) 512.

The jurisdiction of the Federal High Court is donated by the Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria. The opening part of the section reads:
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters.”
The provision then proceeded to list eighteen specific areas in paragraphs (a) to (r) where exclusive jurisdiction is conferred on the Federal High Court and, it concluded in paragraph (s), and “such other jurisdiction civil or criminal and whether to the exclusion of any other Court or

not as may be conferred upon it by an Act of the National Assembly”. What this provision does is that it made the Federal High Court a Court of enumerated jurisdiction, and not one of general jurisdiction, and as such for the Federal High Court to have jurisdiction over a matter, the subject matter of action must fit into one of the enumerated areas of its jurisdiction – Anao Vs Sun Publishing Ltd (2013) 3 NWLR (Pt 1341) 399, Merill Guaranty Savings & Loans Ltd Vs WorldGate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581, Ahmed Vs Ahmed (2013) 15 NWLR (Pt 1377) 274. This point was succinctly made by Nweze, JCA (as he then was) in Oladipo Vs Nigerian Customs Service Board (2009) 12 NWLR (Pt 1156) 563 at page 585 thus:
“… Before we return to this question, we must first return to the implication of the drafting technique in Section 251 (supra). The point must be noted that the draftsman of that section painstakingly itemized the subject matters that fall within the exclusive jurisdiction of the Federal High Court. In all, that section vested exclusive jurisdiction on the Federal High Court in eighteen major items… The implication of

this technique is that the said Court (Federal High Court) is actually a Court of enumerated jurisdiction, that is, a Court whose jurisdiction is not only delimited by statute but whose jurisdiction is delineated in relation only to the subject matter enumerated therein.
It would, therefore, amount to wreaking havoc on the express letters and intendment of the said Section 251 to construe it as granting the said Court a carte blanche to deal with every conceivable matter (that is, beyond those expressly enumerated…
The effect of the circumscription of the jurisdiction of the Court to those eighteen major items is that whenever the question of jurisdiction of the Court is canvassed, attention ought to be focused on the subject matter of the suit, If the subject matter of the suit cannot be pitch forked into any of those eighteen major items, then that Court is not the proper forum for the ventilation of the action …“
The Courts have held that it is the case of the plaintiff as endorsed on the writ of summons and elaborated in the statement of claim or any other originating process that determines the jurisdiction of the Court –

Elelu-Habeeb Vs Attorney General, Federation supra, Merill Guaranty Savings & Loans Ltd Vs WorldGate Building Society Ltd supra, Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt 1342) 503. Ahmed Vs Ahmed (2013) 15 NWLR (Pt 1377) 274. And that the Court does not look at the faces, designations or duties of the parties in a suit to determine whether or not it has jurisdiction- Dagazau Vs Bokir International Company Ltd (2011) 14 NWLR (Pt 1267) 261. Thus, where the cause of action of a plaintiff does not fit into one of the enumerated areas of jurisdiction of the Federal High Court as stated in Section 251 (1) of the Constitution, the fact that one of the parties to the action is the Federal Government or an agency of the Federal Government is irrelevant and it cannot give the Federal High Court jurisdiction over the subject matter Onuorah Vs Kaduna Refining & Petrochemical Co. Ltd (2005) 6 NWLR (Pt 921) 393, Adeogun Vs Fashogbon (2008) 17 NWLR (Pt 1115)149, Adetayo Vs Ademola (2010) 15 NWLR (Pt 1215) 169, Dingyadi Vs Independent National Electoral Commission (2011) 10 NWLR (Pt 1255) 347, Salim Vs Congress for Progressive Change (2013) 6 NWLR (Pt 1351) 501,

Ahmed Vs Ahmed (2013) 15 NWLR (Pt 1377) 274. It is only where both the High Court and the Federal High Court have concurrent jurisdiction over a subject matter that the fact that one of the parties is the Federal Government or an agency of the Federal Government is relevant and it is in such a situation that the decisions in cases such as NEPA Vs Edegbero (2002) 18 NWLR (Pt 798) 79 and Abia State Independent Electoral Commission Vs Kanu (2013) 13 NWLR (Pt 1370) 69 become useful- Ahmed Vs Ahmed supra.
It is trite law that in determining the case made by a party, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party- Okochi Vs Animkwoi (2003) 18 NWLR (Pt 851) 1 and Mobil Oil Plc Vs Drexel Energy and Natural Resources Ltd (2004) 1 NWLR (Pt 853) 142. Reading the claims of the Respondent on the writ of summons and the contents of their pleadings, it is clear that their cause of action against the Appellants alternated between trespass to their church building erected on the land of Appellants, and

for which they claimed damages and injunction in the principal claims, and forceful acquisition of the said church building and properties therein, and for which they claimed for adequate compensation for the acquisition in the alternative claim. Whichever way the claims are looked at, the case of the Respondents was a land litigation, both on the principal claims and on the alternative claim.
The present position of the law is that by the provisions of Section 39 of the Land Use Act and Section 272 (1) of the 1999 Constitution, the High Court has exclusive jurisdiction in all matters relating to land located within the areas designated as urban areas and subject to a statutory right of occupancy granted by the State Government while it shares concurrent jurisdiction with the customary Courts, the area Courts and other Courts of such equivalent jurisdiction in respect of all parcels of land located in the areas designated as rural or non-urban areas and subject to a customary right of occupancy granted by a Local Government- see for example, Aseimo Vs Abraham (1994) 8 NWLR (Pt 361) 191, Oyeniran Vs Egbetola (1997) 5 NWLR (Pt 504) 122, Adisa Vs Oyinwola

(2000) 10 NWLR (Pt 674) 116, Oyedeji Vs Akinyele (2002) 3 NWLR (Pt 755) 586, Sanni Vs Ademiluyi (2003) 3 NWLR (Pt 807) 381, Erhunmwunse Vs Ehanire (2003) 13 NWLR (Pt 837) 353, Akanbi Vs Salawu (2003) 13 NWLR (Pt 838) 637, Okonkwo Vs Okonkwo (2004) 5 NWLR (Pt 865) 87, Attorney General, Rivers State Vs Ohochukwu (2004) 6 NWLR (Pt 869) 340, Ezukwu Vs Ukachukwu (2004) 17 NWLR (Pt 902) 227, The Minister of Works & Housing Vs Shittu (2007) 16 NWLR (Pt 1060) 351, Odetayo Vs Bamidele (2007) 17 NWLR (Pt 1062) 77, Madu Vs Mbakwe (2008) 10 NWLR (Pt 1095) 293,Idjakpa Vs Ajigbereno(2009) 6 NWLR (Pt 1136) 151, Onwuka Vs Ononuju (2009) 11 NWLR (Pt 1151) 174.
The Federal High Court has no jurisdiction over land matters, irrespective of the parties to the action, and it cannot grant a declaration of title to land – Achebe Vs Nwosu (2003) 7 NWLR (Pt 818) 103, Omotesho Vs Abdullahi (2008 2 NWLR (Pt 1072) 526, Federal Mortgage Bank of Nigeria Ltd Vs Lagos State Government (2010) 5 NWLR (Pt 1188) 570, Nigerian Institute of Medical Research Vs National Union of Road Transport Workers (2010) 12 NWLR (Pt 1208) 328, Adetayo Vs Ademola supra. The Federal High Court cannot

adjudicate over a claim for compensation for land- Nkuma Vs Odili(2006) 6 NWLR (Pt 977) 587. It also cannot adjudicate over an action in trespass to landed property- Adetona Vs Zenith International Bank Plc (2009) 3 NWLR (Pt 1129) 577, Oladipo Vs Nigeria Customs Service Board supra. The lower Court thus lacked jurisdiction to adjudicate over the cause of action of the Respondents in this matter, both on the principal claims and on the alternative claim.

It is for these reasons and the fuller exposition of the law in the lead judgment that I too find merit in the appeal and I allow same. I hereby set aside the judgment of the Federal High Court sitting in Kano in Suit No FHC/KN/CS/08/2013 delivered by Honorable Justice Fatun O. Riman on the 3rd of July 2014. I abide the order on costs in the lead judgment.

Appearances:

S.O. EKWE, ESQ., with him, A.D. SALEH, ESQ., and C.B. MOZIE, ESQ. For Appellant(s)

S.U. MAIYAKI, ESQ., with him, P.A. DAFFI, ESQ., M.J. ELLAH, ESQ., P.P. LERE, ESQ., and SHUAIBU ABBA, ESQ. For Respondent(s)