SIR JUDE AGBASO v. HON. SIMEON IWUNZE & ORS
(2014)LCN/7545(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of November, 2014
CA/OW/187/2013
RATIO
APPEAL: ISSUES FOR DETERMINATION; THE PRINCIPLE THAT AN ISSUE FOR DETERMINATION MUST FLOW FROM A GROUND OF APPEAL AND THAT A SINGLE GROUND OF APPEAL CANNOT GIVE BIRTH TO MORE THAN ONE ISSUE FOR DETERMINATION
I have problems with that approach by the 1st to 8th Respondents’ Counsel, as the two new issues for determination appear to be strangers to the Appellant’s Notice and grounds of Appeal, filed on 16/4/13, from which Appellant distilled the 3 issues for determination, which the 1st to 8th Respondents adopted. Of course, by adopting the three issues distilled by the Appellant from the Appellant’s five grounds of appeal (as distributed to the issues for determination), there was no more ground of appeal available for the 1st to 8th Respondents to peg their extra (new) two issues for determination, considering the standing principles of law that an issue for determination must flow from a ground of appeal and a single ground of appeal cannot give birth to more than one issue for determination (though two or more grounds of appeal can combine to generate an issue for determination. Obosi Vs Nipost and Ors (2013) LPELR – 21397 (CA); Unilorin Vs Olawepo (2010) All FWLR (Pt. 511) 813; Ojemen Vs Momodu (1994) 1 NWLR (Pt. 323) 685.
In that case of Obosi Vs Nipost (supra) it was held that:
“…it is elementary rule of Appellate Court practice that issues for determination in an appeal must flow and be distilled from the grounds of appeal. In other words, it is not permissible for appeal to canvass an issue that has no bearing with any of the grounds of appeal. An issue would be competent for determination only if it relates to or arises from a ground of appeal…” Per Abiru JCA
In the case of Usman Vs New Nigerian Bank (2013) LPELR – 20404 CA, the Court held that having distilled an issue from a named ground of appeal, the said ground of appeal was no longer available for another issue to distill from, and that the said ground could not be split to take two issues. per. ITA G. MBABA, JCA
COURT: JURISDICTION; THE EXCLUSIVE JURISDICTION OF THE FEDERAL HIGH COURT ON ANY ISSUE IN WHICH THE FEDERAL GOVERNMENT IS PARTY TO AND HOW TO DETERMINE WHICH COURT HAS JURISDICTION
There is a long list of decisions of the Supreme Court which maintain the position that Federal High Court has exclusive jurisdiction in any matter in which the Federal Government or its agency is a party, pursuant to Section 251 (1)(p)(q) and (r) of the 1999 Constitution (as amended), but that there are exceptions, where the subject matter (especially of contract) would permit the State High Court to hear the case, or where the law expressly vests jurisdiction on both the Federal High Court and the State High Court – like the Section 87 (9) of Electoral Act, 2010 (as amended), and the Fundamental Rights Enforcement matters, where Section 46 of 1999 Constitution (as amended) vests the High Court of the State and the Federal High Court with concurrent jurisdictions. See the case of Salim vs CPC (2013) 6 NWLR (pt. 1351) 501, where the Supreme Court Per Peter – Odili JSC, said:
“The Independent National Electoral Commission is an agency of the Federal Government and on account of Section 251 of the 1999 Constitution, the power to adjudicate in respect of pre-election matter would have been that of the Federal High Court exclusively. However, in a pre-election dispute, the jurisdiction of court is exercisable either by the Federal High Court or the State High Court or the High Court of the Federal Capital Territory. . . The Court of Appeal was in error in holding that the Federal High Court had the jurisdiction to adjudicate on the pre-election dispute to the exclusion of the State High Court.” (Adekoye vs Nigerian Security Printing and Minting Co. Ltd. (2009) 5 NWLR (pt. 1134) 322; Ucha vs. Onwe (2011) 4 NWLR (pt. 1237) 386 referred to)
My Lord, Peter Odili JSC, in the said case of Salim vs CPC (Supra) further said:
“On the face of the provisions of the Constitution, it appears that impression has been created that the Federal High Court has exclusive jurisdiction to the exclusion of all the other courts in Nigeria in any civil case or proceedings in which the Federal Government or any of its agencies is a party. However, a very close, careful and proper interpretation or construction of the provision would show that this is not necessarily the true position. This is because it is the facts and circumstances of each case that determines the extent of the jurisdiction. (Adetayo vs Ademola (2010) 15 NWLR (pt.1215) 169; Adeogun vs Fashogbon (2008) 17 NWLR (pt. 1115) 149; Dingyadi vs INEC (2011) 10 NWLR (pt. 1255) 347 referred to). See also Gassol vs Tutare (2013) 14 NWLR (pt. 1374) 221.
The position has always been that to determine which court has jurisdiction, where there is Federal Government or its agency as a party, there is need to examine the parties to the case and the subject matter of litigation. See Adetayo vs Ademola (2010) NWLR (pt. 1215) 169; A.G. Anambra State & Ors Vs A.G. Fed. & Ors (1993) 6 NWLR (pt. 302) 192, Adeyemi vs Opayori (1976) 9 – 10 SC; Western Steel Workers Union (1987) 2 SCNJ 1
But Steel Workers Union (1987) view sneaked in, recently that:
“Irrespective of the nature of the claim, once any of the parties before a State High Court is the Federal Government or any of its agencies, the State High Court loses jurisdiction. It is the Federal High Court, by virtue of Section 251 of the Constitution and the interpretation given by this Court to that section and or other related sections or statutes, that can lawfully exercise jurisdiction thereon. It is beyond any dispute that the presence of INEC in the matter before the trial court was indispensable …” per Mohammed JSC in Abia State Independent Electoral Commission vs Kanu (2013) ALL FWLR (pt. 696) 556. See also Gbileve and Anor Vs Addingi & Anor (2014) LPELR – 22141 (SC). per. ITA G. MBABA, JCA
COURT: JURISDICTION; THE JURISDICTION OF THE FEDERAL HIGH COURT AND THE STATE HIGH COURT UNDER THE CONSTITUTION TO HEAR AND DETERMINE MATTERS AND CLAIMS BROUGHT UNDER THE FUNDAMENTAL RIGHT
Section 46 of the 1999 Constitution has provided a special jurisdiction to the Federal High Court and the High Courts of the States concurrently to hear and determine matters and claims brought under the fundamental rights, when it says:
“(1) Any person who alleges that any of the provisions of this chapter has been, is being or is likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and make any such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within the State of any right to which the person who makes the application is entitled under this chapter.”
There have been several judicial authorities of this Court and of the Apex Court to the effect that a claim for the enforcement of fundamental rights, under chapter 4 of the 1999 Constitution, may be brought in the High Court of the State or in the Federal High Court, as both have concurrent jurisdiction in matters of enforcement of a person’s fundamental rights, no matter the party involved. See Jack Vs UNAM (2004)5 NWLR (pt. 865) 208; Nigerian Navy Vs Garrick (2006) All FWLR (pt. 315)45; Unachukwu Vs Ajuzie (2009)4 NWLR (pt. 113)336.
In the case of Nnabuchi Vs IGP (2007) All FWLR. (pt. 368)1158 at 1163, this Court held:
“It is to be noted that the application to withdraw the matter and the order of the trial Court of dismissal of the matter are all based on the misconception that the Federal High Court lacks jurisdiction on fundamental rights, the position has been cleared by the Supreme Court in Jack Vs University of Agriculture Makurdi (2004)5 NWLR (pt. 865) 2008 that both the State and Federal High Courts have concurrent jurisdiction on fundamental human rights, irrespective of the parties.”
See Jack Vs University of Agriculture Makurdi (2004)5 NWLR (pt.865)208; (2004) LPELR 1587 (SC), where the Supreme Court said:
“… Section 42 (1) of the Constitution of the Federal Republic of Nigeria which I have reproduced above has provided the Court for the Enforcement of the Fundamental Rights as enshrined in Chapter IV. A person whose fundamental right is breached, being breached or about to be breached may therefore, apply to a High Court in that State for redress. Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 which came into force on January, 1980 defines ‘court’ as meaning “the Federal High Court or the High Court of a State.” What this means is this: both the Federal High Court and the High Court of a State have concurrent jurisdiction”.
Of course, Section 42 (1) of the 1979 Constitution, referred in the above case, is now the Section 46(1) of the 1999 Constitution and the Order 1 Rule 2 of the 1979 Rule is Order 1 Rule 2 of the 2009 Rules which came into force in 2009, and ‘Court’ is also defined in the 2009 Rules to mean:
“… The Federal High Court or the High Court of a State or the High Court of the Federal Capital territory, Abuja.”
With such clear and unambiguous provisions, which do not even require any interpretation, there is no basis, whatsoever, for the State High Court to decline jurisdiction in fundamental rights enforcement matters, simply because, the Commissioner of Police, an agency of the Federal Government, is a party.
I had earlier referred to the decision of the Supreme Court in the case of Adetayo Vs Ademola (2010)15 NWLR (pt. 1215)169 at 190 – 19, where it was held:
“On the face of the Provisions of the Constitution, it appears that impression has been created that the Federal High Court has exclusive jurisdiction to the exclusion of all other Courts, in Nigeria in any civil case or proceedings in which the Federal Government or any of its agencies is a party. However, a very close, careful and proper interpretation or construction of the provisions, would show that this is not necessarily the time position. This is because, in my view, it is the facts and circumstances of each case that determines jurisdiction …The need to examine the parties in the litigation as well as the subject matter of the litigation was strongly advised for close scrutiny.” See also Salim Vs CPC (2013)6 NWLR (pt.1351) 501 at 521 – 522. The law is that it is the statute that donates jurisdiction to a Court, and where the donation has been expressly and generously made, no Court can, by its pronouncement, reduce or withdraw that donation, for whatever reason. See Ayangoke and Another Vs Keystone Bank Ltd. (2013) LPELR – 21806 (CA), where it was held:
“Jurisdiction is donated, by statute to a Court, and to determine whether the Federal High Court has jurisdiction to hear a particular case, reference is always had to the parties and the subject matter of the Claim of the Plaintiff. This is because, being a specialized Court, the jurisdiction of the Federal High Court revolves around matters relating to the Federal Government and/or its agencies, especially touching on pecuniary interest of the same. See ABIFC Vs Kanu (2013)13 NWLR (pt. 1370)69; Umaru Vs Aliyu (2011)5 NWLR (pt. 1241) 600; SLB Consortium Vs NNPC (2011) 9 NWLR (pt. 1252)317; NNPC Vs Orhiowasele (2013)13 NWLR (pt. 137)211. See also the case of GARBA V BIRNIWA & ANOR (2013) LPELR-21478 (CA), where this Court held:
“We have stated over and over again, as per the decisions of this Court and of the Apex Court, that the mere involvement of the Federal Government, Federal Department or Federal Government Agency in a case does not make the matter to fall within the jurisdiction of the Federal High Court, or outside the jurisdiction of the State High Court (or of the Federal Capital Territory). What determines jurisdiction of a Court, apart from the statute that established the court, is the subject matter to be litigated upon, and this (subject matter) is usually determined by the claim of the plaintiff. See the case of ABU vs ODUGBO (2001) SCNJ 262, ADEYEMI vs OPAYORI (1976) 9 – 10 SC 31; NEPA vs EDEGBERO (2003) FWLR (pt. 139) 1556; ADEMOLA vs ADETAYO (2005) ALL FWLR (pt. 259) 1966 at 1988 – 1992. The proviso to the Section 251 (1) (p) (q) and (r) of the 1999 Constitution (as amended), has also cleared every confusion, as to the fact that nothing in the provisions of paragraphs (p), (q) and (r), referred above “Shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance, where the action is based on any enactment, law or equity.” per. ITA G. MBABA, JCA
JUSTICES:
ITA G. MBABA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
FREDERICK O. OHO Justice of The Court of Appeal of Nigeria
Between
SIR JUDE AGBASO
(Deputy Governor of Imo State) – Appellant(s)
AND
1. HON. SIMEON IWUNZE
2. HON. IKENNA EMEH
3. HON. GREG OKEMILI
4. HON. INNOCENT EKEH
5. HON. KINGSLEY DIMAKU
6. HON. SAMUEL ANYANWU
(Chairman and Members of the Special Ad Hoc Committee to Investigate The Remote Cause(s) of Stoppage/Abandonment of Work on Some Roads in Owerri, Orlu and Okigwe Municipalities)
7. HON. BENJAMIN UWAJUMOGU
8. IMO STATE HOUSE OF ASSEMBLY
9. THE HON. CHIEF JUDGE OF IMO STATE
10. COMMISSIONER OF POLICE, IMO STATE – Respondent(s)
ITA G. MBABA, JCA (Delivering the Leading Judgment): This is an appeal against the Judgment of Imo State High Court in suit No. How/174/2013, delivered on 28/3/2013 by Hon. Justice F.I. Duroha Igwe, wherein the learned trial judge dismissed the Fundamental Rights Enforcement matter taken out by the Appellant (as applicant at the Lower Court), after due consideration of the case, while also saying he had no jurisdiction to hear the application. In his explanatory note, the learned trial Court said:
“I am aware that it may seem odd to dismiss a case and still hold that I have no jurisdiction. I only tried to rule on all issues before me so that if this case eventually goes on appeal, the upper court will have the benefit of my view in the matter. See Ogunsola vs App (2004) All FWLR (pt. 207) 727 at 731.” See page 397 of the Records of Appeal.
Appellant was the Deputy Governor of Imo State, when he filed an application for the enforcement of his fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules, 2009, at Owerri High Court, on 14/3/13.
In the statement in support of the application, pursuant to Order II, Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules (FREPR), the Appellant sought, inter alia, an order quashing Exhibit A and an injunction restraining the 1st to 8th Respondents from taking any step to remove him from office, based on the Exhibit A or the contents thereof. On being served with the processes, the 1st to 8th Respondents filed a preliminary objection to the jurisdiction of the Court on 22/3/2013. They also filed a counter-affidavit in opposition to the Applicant’s substantive application, with a written address. The 9th Respondent also filed a counter affidavit and written address to the main application. The Applicant filed a reply on points of law to the objection by the 1st to 8th Respondents. The composite hearing of the applications was taken on 27/3/2013. The Court, in its judgment, delivered the next day (28/3/13), dismissed the Application, saying that the Appellant was accorded the opportunity of being heard by the 1st to 6th Respondents. It however, also held that he lacked jurisdiction to entertain the suit and struck it out, on the ground that it had no jurisdiction over 10th Respondent, Commissioner of Police, who was a party to the suit; that the Commissioner of Police was not a proper party before the State High Court, being an agency of the Federal Government. Few hours after the judgment, Appellant was impeached and removed from office.
A brief facts of the case at the Lower Court showed that sometime in February 2013, Appellant came to know that there were moves to remove him from the office of Deputy Governor of Imo State, on allegation of wrong doings (though Appellant alleged the plot to remove him was based on the plotters’ permutations on zoning of political offices for 2015 Governorship Election). The Speaker of the House of Assembly (7th Respondent), later in the month, set up a “Special Ad Hoc Committee to Investigate the Remote Cause(s) of Stoppage/Abandonment of work on some Roads in Owerri, Orlu and Okigwe Municipalities”, under the chairmanship of the 1st Respondent, and 2nd to 6th Respondents as members. Its terms of reference were to obtain the following:
a) Award letters/approval
b) Certificate of work done
c) The total contract sum
d) The amount paid so far and who made approvals for the payment
e) The extent of the physical job done with pictures/evaluations
f) The possibility of the contractor fulfilling his contractual agreement or otherwise.
Appellant, who also took charge of the Works Ministry, was invited by the Committee on 26/2/2013, to appear before the committee the next day. He honoured the invitation and was at the meeting confronted with allegations of wrong doings, bordering on bribery and corruption and some contractors (JPROS Int’l Nig. Ltd.) appeared to testify against him, having written a petition against the Appellant.
Appellant said it then dawned on him that the whole process was orchestrated by the State Governor as a political Plot to get rid of him at all costs and so confronted the Committee and the State Governor with his findings. On 3/3/2013, the State Governor caused the 8th Respondent to summon 1st to 6th Respondents and other State holders or elders to meet in his official residence, where he treated the Appellant’s complaint, doing so with his ‘elders/advisers’. At the said meeting, at the Governor’s residence, the Ad Hoc Committee was permitted to continue with its findings and the Governor said that:
“If anybody is found guilty he should pay for it.”
Appellant claimed that the Ad Hoc Committee did not avail him with a copy of the petition written against him by the contractor, JPROS International Nig. Ltd, to enable him study and possibly make a written response; that he attended the meetings with the Committee, without legal advice or legal representation, and without adequate time and facility to prepare his defense; that he and the Contractor were asked questions by the Panel on the contents of the Petition which the Committee kept as it’s exclusive preserve.
The Report produced by the Ad Hoc Committee (Exhibit A) to the 8th Respondent indicted the Appellant, saying that Appellant (among other things) received a bribe of N458 Million from JPROS International Co. Nig. Ltd, thereby:
“Corruptly enriching himself therefrom They recommended a vote of no confidence to be passed on the Appellant for ‘Criminal negligence‘. Some Civil Servant, were also recommended for punishment.”
The 8th Respondent accepted the Report by 1st to 6th Respondents on 7/3/13, and being apprehensive that the 1st to 8th Respondents would act on the Report (Exhibit A), to remove him from office, Appellant brought this suit on 14/3/13, to enforce his fundamental rights.
The preliminary objection filed by 1st to 8th Respondents on 27/3/13 had raised 7 issues for determination, namely:
1. Whether or not there exists a competent application before this Honourable Court to enforce the Fundamental Rights of the Applicant.
2. Whether this Honourable Court has the necessary jurisdiction to entertain this suit in view of the provisions of section 188 (1) & (10) of the 1999 Constitution (as amended).
3. Whether on the face of the application filed by the Applicant, the subject matter of this suit is not purely an impeachment issue.
4. Whether or not this Honourable Court can be called upon to interfere with the procedure adopted by the 8th Respondent and/or whether this Honourable Court can interfere with legislative duties of the respondents.
5. Whether or not a process supported by an affidavit which was not deposed to before a commissioner for oath is not incompetent, null and void.
6. Whether or not this Honourable Court has jurisdiction to entertain this suit, against the backdrop of the provision of section 251(1)(r) of the 1999 Constitution and the presence of the Commissioner of Police as the 10th Respondent to this suit.
7. Whether or not the application of the Applicant is not speculative.
See pages 141 & 142 of the Records of Appeals.
Appellant’s Notice of Appeal, filed on 28/3/13, as per pages 398 to 406 of the Records, disclosed 4 grounds of appeal. He filed another Notice of Appeal on 16/4/13 (as per pages 407(a) to 407(i) of the Records), with five grounds of appeal. Appellant filed a brief of argument on 6/12/13, which was deemed duly filed on 11/2/14. He distilled 3 issues for determination from the 2nd Notice of Appeal (by implication, abandoning the Notice and grounds of the Appeal filed on 28/3/13.) At the hearing of the Appeal, Appellant should have stated clearly that he was relying on the Notice of appeal he filed on 16/4/13. I think he can be pardoned, since the 2nd Notice was still filed within time and the brief of argument is predicated on the said 2nd Notice of Appeal.
The issues for determination were:
“(1) Whether, having considered the Appellants’ suit on the merits and dismissed it, the Lower Court was right to have proceeded to strike out the same suit on grounds that it lacked jurisdiction over it? (Ground 3)
2) whether, in view of the decisions of the Supreme Court in Jack Vs University of Agriculture, Makurdi (2004) 5 NWLR (Pt. 856) 208 and Nigerian Navy & 2 Ors Vs Garrick (2006) 4 NWLR (Pt.969) 69, the Lower Court was right to decline jurisdiction, over the 10th Respondent, the Commissioner of Police, when the subject matter of the suit is fundamental rights enforcement? (Ground 4)
3) Whether based on the affidavit evidence, the grounds in the statement and the case presented before the Court below, the Lower Court was right to hold that the 1st to 6th Respondents did not infringe on the Appellant’s right to fair hearing by Exhibit A? (Grounds 1, 2 and 5)”
The 1st to 8th Respondents filed their Brief of arguments, on 16/4/14, which was deemed duly filed on 4/6/14. They adopted the three issues distilled by the Appellant and, in addition, distilled two new issues as follows:
“1) Whether, by the provisions of section 188 (1) and (10) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the Lower Court or any Court at all has the jurisdiction to entertain the suit of the Appellant.
2) Whether by the provisions of section 188 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the Lower Court or any Court at all can interfere with Legislative duties of the 8th Respondent, carried out in accordance with the provisions of the Constitution?”
I have problems with that approach by the 1st to 8th Respondents’ Counsel, as the two new issues for determination appear to be strangers to the Appellant’s Notice and grounds of Appeal, filed on 16/4/13, from which Appellant distilled the 3 issues for determination, which the 1st to 8th Respondents adopted. Of course, by adopting the three issues distilled by the Appellant from the Appellant’s five grounds of appeal (as distributed to the issues for determination), there was no more ground of appeal available for the 1st to 8th Respondents to peg their extra (new) two issues for determination, considering the standing principles of law that an issue for determination must flow from a ground of appeal and a single ground of appeal cannot give birth to more than one issue for determination (though two or more grounds of appeal can combine to generate an issue for determination. Obosi Vs Nipost and Ors (2013) LPELR – 21397 (CA); Unilorin Vs Olawepo (2010) All FWLR (Pt. 511) 813; Ojemen Vs Momodu (1994) 1 NWLR (Pt. 323) 685.
In that case of Obosi Vs Nipost (supra) it was held that:
“…it is elementary rule of Appellate Court practice that issues for determination in an appeal must flow and be distilled from the grounds of appeal. In other words, it is not permissible for appeal to canvass an issue that has no bearing with any of the grounds of appeal. An issue would be competent for determination only if it relates to or arises from a ground of appeal…” Per Abiru JCA
In the case of Usman Vs New Nigerian Bank (2013) LPELR – 20404 CA, the Court held that having distilled an issue from a named ground of appeal, the said ground of appeal was no longer available for another issue to distill from, and that the said ground could not be split to take two issues.
A close look at the two new issues, proposed by the 1st to 8th Respondents, would show that they originated from the issues 2 and 4 (page 141 of the Records) formulated by the 1st to 8th Respondents at the Lower Court but those issues did not form part of the grounds of appeal by the Appellant. If they were of value to the 1st to 8th Respondents, they had a duty to Cross-appeal on those grounds, to be able to formulate issues on them. Having not Cross-appealed or raised Respondents’ notice of intention to rely on those grounds (not raised by the Appellant), the 1st to 8th Respondents cannot be allowed to raise the said new issues. They are, hereby struck out.
This appeal shall therefore be determined on the 3 issues, raised by the Appellant, which were adopted by the 1st to 8th Respondents.
The 9th and 10th Respondents filed no brief. But Appellant filed a Reply brief on 18/6/14, which, in the main, contested the competence of the new issues raised by the 1st to 8th Respondents and a reply to them.
Arguing the Appeal on 30/10/14, learned Counsel for the Appellant, Chijioke O.P. Emeka Esq, on issue 1, submitted that the trial Court was wrong to proceed to raise and consider any other issue, after considering the Appellant’s suit on the merit and dismissing it. He argued that since the determination of the appeal on the merits and dismissal of same was done by the trial Court, before he resorted to consider whether he had jurisdiction and thereafter struck out the suit, the trial Court was in serious error as it had become funtus officio, after dismissing the suit, and so had no further jurisdiction to sit again to consider whether it had jurisdiction to hear the case. He submitted that the case of Ogunsola Vs App (2004) All FWLR (Pt. 207) 727 at 731, relied upon by the trial Court for its decision, did not support what the Court did.
On issue 2, Appellant’s Counsel submitted that the trial Court was wrong to hold that it had no jurisdiction to entertain the case on the ground that the 10th Respondent, Commissioner of Police, Imo State, was not a proper party before the State High Court, being agency of the Federal Government, in view of the exclusive jurisdiction of the Federal High Court in Section 251(1)(p)(q)(r) of the 1999 Constitution. Counsel submitted that the trial Court was wrong to have relied on the decision of this Court in the case of Nospecto Oil & Gas Ltd Vs Olorunnimbe (2011) LPERL – CA/L/474/11, to decline Jurisdiction; that the case is clearly distinguishable, as it is not correct to say that once an agency of the Federal Government is a party in a case, the Federal High Court is vested with exclusive jurisdiction; that it is trite law that even in simple contracts, where an agency of the Federal government is a party, the State High Court has Jurisdiction.
He submitted that in this case due attention ought to have been given to the special jurisdiction vested in the High Court in Section 46 of the 1999 Constitution of the Federal Republic of Nigeria. He relied on the case of Jack Vs University of Agriculture, Makurdi (2004) 5 NWLR (Pt.856) 208, where the Supreme Court upheld the jurisdiction of the Benue State High Court in fundamental rights action. He also relied on the case of Nigeria Navy & Ors Vs Garrick (2006)4 NWLR (pt. 969) 69. Counsel also founded on the case of Military Administration of Kwara State & Ors Vs Lafiaji (1998) 7 NWLR (pt. 557)202 where this Court held that:
“a Commissioner of Police posted to the state, when carrying out a duty purely in relation to the state matter, cannot be regarded as an agent of the Federal Government when carrying out that duty.”
Counsel added that the 10th Respondent was even a nominal party in the case; that even if the Appellant could not enforce his fundamental rights against the 10th Respondent, it was still erroneous to strike out the suit, instead of striking out the name of the 10th Respondent from the suit!
On issue 3, Appellant’s Counsel submitted that the crux of Appellant’s case was that Exhibit A, the Report of the Ad Hoc Committee of the 8th Respondent (produced by 1st to 6th Respondents) violated his fundamental right to fair hearing, in terms of the procedure adopted by the Committee and their findings. He referred us to paragraphs 9, 11, 12, 13, 14, 15, 18(a) – (e), 21(a) – (g) and 25 of the supporting affidavit (pages 7 – 12 of the Records.)
Counsel submitted that, instead of the trial court examining the process that produced Exhibit A, with a view to determine whether the Appellant was accorded fair hearing by 1st to 6th Respondents, the lower court took a one-way approach and held that the Appellant was not denied fair hearing, simply because he appeared before the Committee, basing its findings on paragraphs 7, 8, 9, 12 and 13 of the Affidavit in support.
Counsel submitted that the trial court, completely misconceived the case before it, ignored all the fundamental issues raised as to constitute validity of the proceedings of the 1st to 6th Respondents and rather wrongly dwelt on the fact that Appellant appeared before the Committee; that Appellant’s complain was that, his fundamental rights to fair hearing and impartial and just processes guaranteed by Section 36 of the 1999 Constitution was breached by the Committee.
Counsel referred us to paragraph 9 of the affidavit in support and said that apart from the failure of the Committee to give Appellant adequate time and facilities to prepare his defence, they also evinced bias or likelihood of bias, and that their acts were ultra vires, in their, usurpation of power over purely criminal allegations as the power to appoint such committee preparatory for impeachment of Appellant was vested in the Chief Judge for the investigation of the Appellant; that they breached the Nemo Judex in Causa Sua Rule, and that the Committee exceeded its terms of reference to find Appellant guilty.
Counsel submitted that the lower court failed to consider and pronounce upon the point, whether the 1st to 6th Respondents had power to investigate, determine and punish the criminal allegations against the Appellant; that it is a competent criminal court that has constitutional power to proceed against and make findings on the criminal offence of bribery or corruption.
Counsel relied on the case of Sofekua vs Akinyemi & Ors (1981) 1 NCLR 135 at 137, to submit that the Exhibit A was a nullity, the Committee having determined and recommended punishment for criminal offence, not being a competent court. Counsel added that the 8th Respondent is given power to conduct inquiry or investigate into matters of the State, which power extends to exposing corruption, but it has no power to make findings on a crime or recommend punishment; that the moment the findings of the 1st to 6th Respondents got to a point where alleged bribery and corruption came up, the matter went beyond the powers of the 1st to 6th Respondents. He relied on the case of Garba & Ors vs University of Maiduguri (1986) 1 NWLR (Pt. 18) 550, Medical & Dental Practitioners’ Disciplinary Tribunal vs Okonkwo (2001) 7 NWLR (Pt. 711) 206 at 235; Sofekua vs Akinyemi & Ors (1981) 1 NCLR 135 at 137.
Counsel also tried to argue that the lower court failed to consider and pronounce upon the issue whether the committee did not breach Appellant’s right to fair hearing by assuming the powers of the Panel of Seven to be set up by the Chief Judge, which saw the 1st to 6th Respondents, first deciding an issue to be constitutionally investigated by the Panel of Seven before the 8th Respondent later voted to have the same issue investigated. He relied on Section 188(3)(4)(5) of the 1999 Constitution. He also added that the trial court failed to consider and pronounce upon the issue whether Appellant’s right to fair hearing before the Panel of Seven was not likely to be contravened, when after the 1st to 6th Respondents’ Committee investigation and findings, the Panel of Seven would re-open the same ‘investigation’ for which the Committee had returned a verdict of guilt.
I must confess that I am at a loss trying to see how these later submissions of Learned Counsel can fit into the issue 3, which simply queried whether, based on the affidavit evidence, the grounds in the statement and the case presented to the court by the parties, respectively, the lower court was right to hold that Exhibit A did not violate the Appellant’s right to fair hearing, and declined to quash it?
There is nothing in that issue (nor in the grounds 1, 2 and 5 of appeal from which the issue distilled) that suggests a call for consideration of, and pronouncement on the status of the Ad Hoc Committee of 1st to 6th Respondents, vis a vis the Panel of Seven by the Chief Judge, under Section 188 of the Constitution. That aspect of the Appellant’s argument, therefore, stands disregarded for relating to no issue.
Appellant had relied on the following cases Re-HK (an infant) (1967) 2 QB 617; Council of Civil Service Unions vs Minister for Service (1985) AC 574 at 407; LPDC vs FAWEHINMI (1985) 2 NWLR (pt. 7) 300 at 387; LEVENTIS vs Akpu (2007) 17 NWLR (pt. 1063) 416; Adesua vs Jibesin (2001) 11 NWLR (pt. 724) 290; Adekunle vs State (2002) 4 NWLR (pt. 756) 168; Usman vs. Garke (1999) 1 NWLR (pt. 587) 466; BON Ltd vs. Babatunde (2002) 7 NWLR (pt. 766) 389; Basil vs. Fajebe (2001) 11 NWLR (pt. 725) 592; Udengwu vs. Uzuegbu (2003) 13 NWLR (pt. 836) 136; Oduwole vs Aina (2001) 17 NWLR (pt. 741) 1 and Felix Nwosu vs. State (1996) 4 NWLR (pt. 35) 348 and urged us to pronounce against Exhibit A, and resolve all the issues for the Appellant and allow the appeal, set aside the decision of the lower court and assume jurisdiction, under Section 15 of the Court of Appeal Act 2004, and decide the fundamental rights suit in favour of the Appellant.
Responding, the learned Senior Counsel for the 1st to 8th Respondents, Chief Adeniyi Akintola SAN, on Appellant’s issue 1, said that Appellant made a heavy weather of the lower court’s order dismissing the case on the merit, before striking it out for lack of jurisdiction; he said that what the lower court did was simply to pronounce on all the issues placed before it, and that as rightly observed by the lower court, it was to give the appellate court the benefit of the view of the lower court on the matter; that the trial court gave its reasons as to why it still went on to rule on the issue of jurisdiction, after dismissing the suit.
Counsel added that it is a common practice in court to rule on the issue of jurisdiction and also go ahead to rule on the merit of or otherwise of the suit; that this is perfectly in order. He relied on the case of Ogunsola vs. App (2004) ALL FWLR (pt. 207) 727 at 731.
He argued that the decision by the lower court that it had no jurisdiction to entertain the suit was not an obiter dictum but a ratio decidendi; that since jurisdiction is the bed-rock of any proceedings, and proceedings no matter how well conducted amounts to nullity, if conducted without jurisdiction, the decision became instructive. He relied on Madukolu vs. Nkemdilim (2001) 46 WRN 1; Skenconsult vs. Ukey (2001) 48 WRN 1.
On issue 2 by the Appellant, the Senior Counsel submitted that the trial court was right to hold that the 10th Respondent, Commissioner of Police, like the Inspector General of Police, being an agency of The Federal Government and an appointee of the Police Service Commission, was not a proper party within the jurisdiction of the State High Court; that it is the Federal High Court that has exclusive jurisdiction over any action or proceedings against the 10th Respondent or any Police Officer. He relied on section 251(1)(r) of the 1999 Constitution and on the case of NEPA vs Edegbero (2003) 9 WRN 1 at 17. Counsel added that since the 10th Respondent was not a competent party, the action became incompetent. He relied on the case of Abia vs CRSPI LTD (2007) 28 WRN 150 at 177:
“When however a party claims a relief which when made will be binding on a person not a party to the action, the action becomes incompetent as the necessary party has not been joined.”
He also relied on Yusuf vs IITA (2008) 32 WRN 168 at 189; Ndulue vs Ndubueze (2002) WRN 130; Anya vs Iyayi (1988) 3 NWLR (pt. 82) 359.
On Appellant’s issue 3, Learned Senior Counsel also said that Appellant made a heavy weather of the issue of fair hearing: that he was denied fair hearing by the Ad Hoc. Committee of the 8th Respondent, constituting the 1st to 6th Respondents. Counsel submitted that, inspite of the grave allegations made by the Appellant, he failed to put before us anything to show that 1st to 8th Respondents acted outside their powers or breached any of the provisions of the 1999 Constitution, in the procedures adopted in Exhibit A and in dealing with the Appellant.
Counsel relied on Sections 103 (1) of the 1999 Constitution (as amended) to say that the 8th Respondent acted within the confines of the law when it set up the Ad HOC Committee to investigate the matter assigned to it. He also relied on Sections 95 of the Constitution on the powers of the speaker (7th Respondent).
On whether Appellant was given fair hearing by the Ad HOC Committee, Counsel submitted in affirmative, that Appellant had ample time and opportunity to clear himself of the grave allegations levelled against him; that Appellant appeared before the committee and was heard and confronted with his accusers whom he faced and defended himself. And even when he became apprehensive, caused the Governor to call a stakeholders meeting which allayed his fears; that the intervention of the state Governor was to assist the Executive, the Appellant in particular, “to resolve any face off between the Deputy Governor and the House of Assembly, if any.”
Counsel submitted that before the meeting at the Governor’s residence, which was at the instance of the Appellant, the 1st to 6th Respondents had already had appointment with the Appellant, fixed on Monday 5/3/2013 and the same was not fixed at the Governor’s house (he referred us to page 24 of the Records.)
Counsel further submitted that the 1st to 8th Respondents, at no time determined or punished criminal allegations against the Appellant; that all the issues that came up were in the course of investigating a failed contract; that it was in the course of this investigation that allegations of gross misconduct were levelled against the Appellant and the 8th Respondent, thereafter, exercised his powers under Section 188 (1) – (11) of the 1999 Constitution (as amended).
Counsel submitted that Exhibit A did not violate the Appellant’s right to fair hearing. He called our attention to the meaning of the word ‘Fair hearing’, and the two pillars of justice, namely Audi alteram partem (hear the other party) and Nemo judex in causa sua (No one should be a judge in his own cause). He relied on Basinco Motors Ltd. vs Woermann Line (2010) 10 WRN 1 at 36.
On whether Appellant was heard: 1st to 8th Respondents answered with emphatic YES! And whether the Ad Hoc Committee and Respondents were being a judge in their own cause? They answered with emphatic NO! Counsel called our attention to the evidence of the Appellant in Exhibit A (on pages 205 to 208 of the Records of Appeal) and said that Appellant was duly heard. He relied on the case of Womiloju vs Anibire (2010) 27 WRN 1 at 13 – 14, where the Appex Court held: “. . . the principle of fair hearing contemplates allowing parties equal opportunities to present evidence and cross-examine witnesses.”
He also relied on Bamigboye vs Saraki (2010) 14 WRN 125 at 154 to say that fair hearing also connotes the impression that a person has been fairly treated. Renold Construction Ltd. Vs Fupohande (2009)33 WRN 136 at 171.
Counsel submitted that from the Records before this court, Appellant was fairly treated by the 1st to 8th Respondents and that is why the lower court came to the conclusion that Exhibit A did not violate Appellant’s right to fair hearing. Counsel, particularly, referred us to page 78 of the Records and said the Appellant was given opportunity to be heard.
He urged us to resolve the issues against the Appellant and uphold the decision of the lower court, dismissing the appeal.
RESOLUTION OF THE ISSUES
I think it is proper to take the issues one and two, together, since the two touch on the holding of the trial court that it had no jurisdiction, after it had determined the case on the merits and dismissed the claim. Did the trial court actually have jurisdiction to entertain the suit, and was it right to decline jurisdiction, striking out the suit, after it had heard it on the merits and dismissed the claim?
I think I should start with whether the trial court, infact, had jurisdiction to entertain Appellant’s case, in view of the inclusion of the 10th Respondent, the Commissioner of Police, Imo State, as a party to the suit. I am aware that there appears to be some recent decisions of the Apex Court which (with respect) do not appear to agree on the issue of whether the State High Court jurisdiction is outrightly excluded in every matter, where Federal Government or agency of the Federal Government is a party.
There is a long list of decisions of the Supreme Court which maintain the position that Federal High Court has exclusive jurisdiction in any matter in which the Federal Government or its agency is a party, pursuant to Section 251 (1)(p)(q) and (r) of the 1999 Constitution (as amended), but that there are exceptions, where the subject matter (especially of contract) would permit the State High Court to hear the case, or where the law expressly vests jurisdiction on both the Federal High Court and the State High Court – like the Section 87 (9) of Electoral Act, 2010 (as amended), and the Fundamental Rights Enforcement matters, where Section 46 of 1999 Constitution (as amended) vests the High Court of the State and the Federal High Court with concurrent jurisdictions. See the case of Salim vs CPC (2013) 6 NWLR (pt. 1351) 501, where the Supreme Court Per Peter – Odili JSC, said:
“The Independent National Electoral Commission is an agency of the Federal Government and on account of Section 251 of the 1999 Constitution, the power to adjudicate in respect of pre-election matter would have been that of the Federal High Court exclusively. However, in a pre-election dispute, the jurisdiction of court is exercisable either by the Federal High Court or the State High Court or the High Court of the Federal Capital Territory. . . The Court of Appeal was in error in holding that the Federal High Court had the jurisdiction to adjudicate on the pre-election dispute to the exclusion of the State High Court.” (Adekoye vs Nigerian Security Printing and Minting Co. Ltd. (2009) 5 NWLR (pt. 1134) 322; Ucha vs. Onwe (2011) 4 NWLR (pt. 1237) 386 referred to)
My Lord, Peter Odili JSC, in the said case of Salim vs CPC (Supra) further said:
“On the face of the provisions of the Constitution, it appears that impression has been created that the Federal High Court has exclusive jurisdiction to the exclusion of all the other courts in Nigeria in any civil case or proceedings in which the Federal Government or any of its agencies is a party. However, a very close, careful and proper interpretation or construction of the provision would show that this is not necessarily the true position. This is because it is the facts and circumstances of each case that determines the extent of the jurisdiction. (Adetayo vs Ademola (2010) 15 NWLR (pt.1215) 169; Adeogun vs Fashogbon (2008) 17 NWLR (pt. 1115) 149; Dingyadi vs INEC (2011) 10 NWLR (pt. 1255) 347 referred to). See also Gassol vs Tutare (2013) 14 NWLR (pt. 1374) 221.
The position has always been that to determine which court has jurisdiction, where there is Federal Government or its agency as a party, there is need to examine the parties to the case and the subject matter of litigation. See Adetayo vs Ademola (2010) NWLR (pt. 1215) 169; A.G. Anambra State & Ors Vs A.G. Fed. & Ors (1993) 6 NWLR (pt. 302) 192, Adeyemi vs Opayori (1976) 9 – 10 SC; Western Steel Workers Union (1987) 2 SCNJ 1
But Steel Workers Union (1987) view sneaked in, recently that:
“Irrespective of the nature of the claim, once any of the parties before a State High Court is the Federal Government or any of its agencies, the State High Court loses jurisdiction. It is the Federal High Court, by virtue of Section 251 of the Constitution and the interpretation given by this Court to that section and or other related sections or statutes, that can lawfully exercise jurisdiction thereon. It is beyond any dispute that the presence of INEC in the matter before the trial court was indispensable …” per Mohammed JSC in Abia State Independent Electoral Commission vs Kanu (2013) ALL FWLR (pt. 696) 556. See also Gbileve and Anor Vs Addingi & Anor (2014) LPELR – 22141 (SC).
I think that this unfortunate “Babel” of confusion is capable of misleading any Lower Court that has difficulties distinguishing the facts of a given case from the authorities referred above. The learned trial judge was in this confusion, when he held:
“10th respondent is Commissioner of Police of Imo State. By address filed in the suit, all parties agree that he is an agent of the Federal Government. He is very much a party to this suit… In the National Union of Electricity Employees Case (supra) the Supreme Court observed that the facts of the case were different from what obtained in NEPA case. I find guidance in the latter decision of the Court of Appeal in Nospecto Oils & Gas Ltd, Vs Olorunnimbe (2011) LPERL CA/L/474/11, delivered on 19/12/11. The Court reviewed a lot of authorities on the issue… and held that the essence of S.251 (1) (P) (q) and (r) is to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agency is a party. I see no reason to draw a distinction just because this is a matter brought under the FREP Rules.” See page 396 of the Records of Appeal.
With due respect to the learned trial judge, I think he was in grave error to say that he saw no reason to distinguish this case founded on Fundamental Rights (Enforcement Procedure) Rules (FREPR) from the cases of NEPA Vs Edegbero (2003) 9 WRN 17 and Nospecto Oil & Gas Ltd. Vs Olorunnimbe (2011) LPELR CA/L/474/11, which were considered purely on the extant provisions of the Constitution – Section 251(1)(p)(q) and (r) vesting exclusive jurisdiction in the Federal High Court over the subject matters in contention in those cases, which also had agencies of the Federal Government as parties.
Section 46 of the 1999 Constitution has provided a special jurisdiction to the Federal High Court and the High Courts of the States concurrently to hear and determine matters and claims brought under the fundamental rights, when it says:
“(1) Any person who alleges that any of the provisions of this chapter has been, is being or is likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of this section and make any such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within the State of any right to which the person who makes the application is entitled under this chapter.”
There have been several judicial authorities of this Court and of the Apex Court to the effect that a claim for the enforcement of fundamental rights, under chapter 4 of the 1999 Constitution, may be brought in the High Court of the State or in the Federal High Court, as both have concurrent jurisdiction in matters of enforcement of a person’s fundamental rights, no matter the party involved. See Jack Vs UNAM (2004)5 NWLR (pt. 865) 208; Nigerian Navy Vs Garrick (2006) All FWLR (pt. 315)45; Unachukwu Vs Ajuzie (2009)4 NWLR (pt. 113)336.
In the case of Nnabuchi Vs IGP (2007) All FWLR. (pt. 368)1158 at 1163, this Court held:
“It is to be noted that the application to withdraw the matter and the order of the trial Court of dismissal of the matter are all based on the misconception that the Federal High Court lacks jurisdiction on fundamental rights, the position has been cleared by the Supreme Court in Jack Vs University of Agriculture Makurdi (2004)5 NWLR (pt. 865) 2008 that both the State and Federal High Courts have concurrent jurisdiction on fundamental human rights, irrespective of the parties.”
See Jack Vs University of Agriculture Makurdi (2004)5 NWLR (pt.865)208; (2004) LPELR 1587 (SC), where the Supreme Court said:
“… Section 42 (1) of the Constitution of the Federal Republic of Nigeria which I have reproduced above has provided the Court for the Enforcement of the Fundamental Rights as enshrined in Chapter IV. A person whose fundamental right is breached, being breached or about to be breached may therefore, apply to a High Court in that State for redress. Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 which came into force on January, 1980 defines ‘court’ as meaning “the Federal High Court or the High Court of a State.” What this means is this: both the Federal High Court and the High Court of a State have concurrent jurisdiction”.
Of course, Section 42 (1) of the 1979 Constitution, referred in the above case, is now the Section 46(1) of the 1999 Constitution and the Order 1 Rule 2 of the 1979 Rule is Order 1 Rule 2 of the 2009 Rules which came into force in 2009, and ‘Court’ is also defined in the 2009 Rules to mean:
“… The Federal High Court or the High Court of a State or the High Court of the Federal Capital territory, Abuja.”
With such clear and unambiguous provisions, which do not even require any interpretation, there is no basis, whatsoever, for the State High Court to decline jurisdiction in fundamental rights enforcement matters, simply because, the Commissioner of Police, an agency of the Federal Government, is a party.
I had earlier referred to the decision of the Supreme Court in the case of Adetayo Vs Ademola (2010)15 NWLR (pt. 1215)169 at 190 – 19, where it was held:
“On the face of the Provisions of the Constitution, it appears that impression has been created that the Federal High Court has exclusive jurisdiction to the exclusion of all other Courts, in Nigeria in any civil case or proceedings in which the Federal Government or any of its agencies is a party. However, a very close, careful and proper interpretation or construction of the provisions, would show that this is not necessarily the time position. This is because, in my view, it is the facts and circumstances of each case that determines jurisdiction …The need to examine the parties in the litigation as well as the subject matter of the litigation was strongly advised for close scrutiny.” See also Salim Vs CPC (2013)6 NWLR (pt.1351) 501 at 521 – 522. The law is that it is the statute that donates jurisdiction to a Court, and where the donation has been expressly and generously made, no Court can, by its pronouncement, reduce or withdraw that donation, for whatever reason. See Ayangoke and Another Vs Keystone Bank Ltd. (2013) LPELR – 21806 (CA), where it was held:
“Jurisdiction is donated, by statute to a Court, and to determine whether the Federal High Court has jurisdiction to hear a particular case, reference is always had to the parties and the subject matter of the Claim of the Plaintiff. This is because, being a specialized Court, the jurisdiction of the Federal High Court revolves around matters relating to the Federal Government and/or its agencies, especially touching on pecuniary interest of the same. See ABIFC Vs Kanu (2013)13 NWLR (pt. 1370)69; Umaru Vs Aliyu (2011)5 NWLR (pt. 1241) 600; SLB Consortium Vs NNPC (2011) 9 NWLR (pt. 1252)317; NNPC Vs Orhiowasele (2013)13 NWLR (pt. 137)211. See also the case of GARBA V BIRNIWA & ANOR (2013) LPELR-21478 (CA), where this Court held:
“We have stated over and over again, as per the decisions of this Court and of the Apex Court, that the mere involvement of the Federal Government, Federal Department or Federal Government Agency in a case does not make the matter to fall within the jurisdiction of the Federal High Court, or outside the jurisdiction of the State High Court (or of the Federal Capital Territory). What determines jurisdiction of a Court, apart from the statute that established the court, is the subject matter to be litigated upon, and this (subject matter) is usually determined by the claim of the plaintiff. See the case of ABU vs ODUGBO (2001) SCNJ 262, ADEYEMI vs OPAYORI (1976) 9 – 10 SC 31; NEPA vs EDEGBERO (2003) FWLR (pt. 139) 1556; ADEMOLA vs ADETAYO (2005) ALL FWLR (pt. 259) 1966 at 1988 – 1992. The proviso to the Section 251 (1) (p) (q) and (r) of the 1999 Constitution (as amended), has also cleared every confusion, as to the fact that nothing in the provisions of paragraphs (p), (q) and (r), referred above “Shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance, where the action is based on any enactment, law or equity.”
I hold that the learned trial Court was therefore wrong to say that he lacked jurisdiction over the 10th Respondent, the Commissioner of Police, and that the same was not a proper party in the case. Even if, by any stretch of imagination, it could be accepted that the Commissioner of Police was agency of Federal Government for the purpose of the case, can that affect the jurisdiction of the Court to hear the case, when the said party could simply be struck out to save the case? I have my doubt.
It must be appreciated that the Commissioner of Police, when carrying out duty, purely, in relation to the State matter cannot be regarded as agency of the Federal Government. See Military Administration of Kwara State & Ors Vs Lafiaji (1998) 7 NWLR (pt. 557)202. Thus, even if this case was not brought under Fundamental Rights (Enforcement Procedure) Rules, 2009, the same in my opinion, could not be defeated in the State High Court by the simple presence of the 10th Respondent as a party, since the Commissioner of Police, should be seen in the case, in the capacity of his envisaged duties of maintaining law and order in the State and for the State and to that extent would rather not be seen as agency of Federal Government. I hold that the presence of the 10th Respondent in the Suit did not rob the State High Court of its jurisdiction. Was the trial Court therefore right in declining jurisdiction in the case, after it had considered the case on the merits and dismissed the claim?
It is normal for a Court, particularly one whose decision is not final in a matter, when faced with the challenge to its jurisdiction, to also discuss and consider the issues in contention on the merit, where the Court has opportunity to consider the substantive issues, together with the application challenging its jurisdiction. This ingenious practice has come to serve a very useful legal role in our jurisprudence, as it tends to kill time and cure the defect which would occur, if the trial Court’s decision on jurisdiction is over-ruled by the appellate Court, requiring the case to be heard and determined on the merits. Thus, where the trial Court had gone further to consider the case on its merits, in the alternative, even after declining jurisdiction, the appellate Court would have a basis to go ahead to determine the appeal on substantial issues, as considered by the lower Court. Of course, the alternative would have been to remit the case back for trial on the merits, had the issues not been resolved by the trial Court, at the point of considering the issue of jurisdiction.
In a recent decision of this Court in the case of ENUKEME Vs MAZI (2014) LPELR – 23540 (CA) we held:
“It is also a common practice now, to hear motions/objections raised against the hearing of a suit, together with the substantive matter, where time is of essence to determine the substantive matter. This practice has been in-corporated into the hearing of election petitions. See Section 38(5) of the Electoral Act 2010, as amended… Order VIII of the FREPR 2009 makes similar or more elaborate provisions, empowering the trial Court to hear the substantive suit along with any objection raised by the Respondent to the application. It states:
“(1) Where the Respondent is challenging the Court’s jurisdiction to hear the application, he may apply to the Court for an order striking out the suit or setting aside the proceedings.
(2)The Respondent’s Notice of preliminary objection must be filed along with the counter affidavit to the main suit.
(3) Where the Respondent elects not to file a counter-affidavit to the main application, the Court shall presume that the Respondent had accepted the facts as presented by the Applicant.
(4) On the date of hearing, the preliminary objection shall be heard along with the substantial application.
(5) The Court after hearing the application may make any of the following orders:
(a) Striking out the application for want of jurisdiction; or
(b) Setting aside the service of the originating application.
Where the Court does not decline jurisdiction, the Court shall go ahead to give its Ruling on the substantive application.”
Like this case, above suit which resulted that authority, was brought under the Fundamental Rights (Enforcement Procedure) 2009 Rules (FREPR) which permits the trial Court to hear any objection to the trial, together with the substantive application and to deliver its ruling together, as explained in the case of Enukeme Vs Mazi (supra).
I think, that was what the learned trial Court did, in this case, when it considered both the substantive application and the challenge to its jurisdiction together. It should, however, be observed that in such circumstances, it is proper to take the challenge to the jurisdiction, first, and after ruling on that, consider the substantive application, if the Court over-rules the challenge to jurisdiction, or even if it is upheld to consider the case on the merits as an alternative way to give the appellate Court the required materials to consider, on appeal.
The trial Court was therefore wrong in first considering the substantive case, on the merits and dismissing the application, before taking on the issue of challenge to jurisdiction, as it appeared functus officio in the matter, at the time it considered whether or not it had jurisdiction to hear the case.
But while resolving this issue in favour of the Appellant, that the trial Court was wrong to have held that 10th Respondent was not a proper party and that it had no jurisdiction to entertain the suit, and that it should have considered the issue of jurisdiction first before taking the case on the merits, that error had no substantial effect on the power and decision of the trial Court determining the case of the Appellant at the Lower Court on the merits.
Was the trial Court right to hold that the 1st to 6th Respondents did not infringe on Appellant’s right to fair hearing by Exhibit A?
The main contention of the Appellant under this issue was that Exhibit A, the Report of the Ad hoc Committee of the 8th Respondent, prepared by the 1st to 6th Respondents, violated his fundamental rights to fair hearing, in terms of procedure adopted by the Ad hoc Committee and its findings. He referred us to paragraphs 9,11,12,13,14,15,18 (a) – (e), 21 (a) – (g) and 25 of the Affidavit in support of the originating motion (pages 7 to 12 of the Records).
In paragraph 9 of the Appellant’s affidavit he admitted honouring the invitation of the Ad hoc Committee of the 8th Respondent, but lamented that in his innocence of mind, he attended the invitation of the Committee without:
“(a) being aware that I was going to be interrogated over criminal allegation of demanding and collecting bribe from a contractor.
(b) Having any legal advice or legal representation
(c) Adequate time and facilities to prepare my defence against the criminal allegations of bribery I was faced with when I came before the Committee
(d) Being availed a copy of the petition allegedly written against me by an Imo State Government contractor (JPROS Ltd). I was not given a copy of the petition written against me by JPROS Ltd.”
Appellant alleged that he was not given fair hearing by so doing and that the Committee of 1st to 6th was bias against him, thus, that the Exhibit A (Report of the Committee Respondent, upon which the 8th Respondent passed a vote of no confidence on him) was a nullity, having determined and recommended punishment for a criminal offence, when they (Committee) were not a competent Court.
Of course, the Respondents (1st to 8th) had argued that the Ad Hoc Committee of the 8th Respondent was set up and it acted within the powers conferred on the 8th Respondent, under Section 103 of the Constitution, having been set up for the purpose of enquiry or investigation, which was precisely what the 8th Respondent did in the matter of Appellant’s hearing, and that Appellant was duly invited to the Panel/Committee and he made representations and was duly heard. The Respondents added that, contrary to Appellant’s allegation that the 1st to 6th Respondents recommended punishment against him for criminal offence all that the Committee did was to make recommendations to the 8th Respondent and that, if the 8th Respondent found Appellant to be corrupt or to have corrupt tendencies, in such a way that would amount to gross misconduct, in the opinion of the 8th Respondent, it had the power to initiate impeachment proceedings against him (Appellant).
Counsel for 1st to 8th Respondents found on the Exhibit A and said that the same did not contravene Appellant’s fundamental rights. He referred to the evidence of the Appellant on pages 205 to 208 of the Records.
A perusal of the Records, particularly, the Exhibit A (the Report of the Ad hoc Committee) shows that the Appellant, infact, willingly honoured the invitation of the Ad hoc Committee, set up by the 8th Respondent to investigate the remote cause(s) of stoppage/abandonment of work on some Roads in Owerri, Orlu and Okigwe Municipalities. At the sessions of the Ad hoc Committee, Appellant was confronted with a witness, one Mr. Joseph Dina of JPROS International Nig. Ltd., and with documentary evidence, relating to extortion or diversion of contract sums meant for the construction of the roads by the Appellant, who also held the portfolio of the Commission for Works. Detailed information on how the Appellant used his offices, wrongly, to divert substantial part of the contract sum to some private accounts abroad were disclosed at the investigation panel and Appellant took active part in the investigation, as he fielded questions, interacted with the Panel and with the said Mr. Joseph Dina, with whom he was said to have related in the illicit transaction. Appellant had opportunity to deny the allegations by the said Mr. Joseph Dina and to state his own side of the story, or explain his actions.
Of course, after the initial denials, he (Appellant) admitted doing business with the Company, JPROS International Nig. Ltd, as one of the government contractors. He also remembered Mr. Joseph Dina, their telephone conversations, visits and interactions, though he (Appellant), stoutly, denied the allegations of financial improprieties, or of instructing the said Mr. Joseph Dina to pay the alleged sums of money into Appellant’s accounts. But there were proofs that the said monies amounting to N458 million had been paid into his accounts.
The Ad hoc Committee unearthed a lot of sharp practices and financial wrong doings, which led to the stoppage/abandonment of work on the roads, after the awards of the Contracts, as about N458,000,000 of the Contract sums was paid into the accounts of the Appellant, and Mr. Joseph Dina supplied the bank statements, which indicated the transfers of the monies from the Company’s accounts by e-payments to the accounts (numbers) of the Appellant, forwarded to the said Mr. Joseph Dina through short message services (sms) by the Appellant’s Phone No. 08033144421. The statements of accounts were supplied to the Adhoc Committee. See page 200 – 202 of the Records. A little demonstration of what transpired at the investigation Committee session can be seen on pages24 – 28 or 205 to 208 of the Records as follows:-
“On Monday 5th of March 2012 at about 10am, His Excellency the Deputy Governor appeared before the committee facing Mr. Joseph Dina of JPROS International Nig Ltd in the interface with the Committee and the following dialogue ensued:
Committee: Mr. Joseph Dina, do you know the person sitting opposite you?
Joseph Dina: Yes I know him. He is the deputy Governor. He is Commissioner of Works
Committee: What is his name?
Joseph Dina: Sir Jude Agbaso
Committee: Your Excellency, do you know the man sitting opposite you?
Deputy Governor: Yes I know him. He is JPROS
Committee: He said you gave him account numbers via your telephone number 08033444421 directing him to pay a total sum of N458.000.000.00 (Four Hundred and Fifty Eight million Naira) to those accounts. And that he actually paid in February, 2012 on the receipt of the N1.035.000.000.00 (One billion, Thirty five Million Naira) only the sum of N325.000.000.00 (Three Hundred and Twenty Five Million Naira) in favour of Three Brothers Concept Ltd account no; 0045630151 with GT Bank PLC. Lagos. Sort code 058266511 drawn on cheque no 30794812 of Diamond bank, account no; 0015810435 belonging to JPROS INT. NIG. LTD. and another N133.000.000.00 (One Hundred and Thirty Three million) paid in June to IHSAN BDC LTD, account No. 1015334698. Sort code 033153351 UBA PLC 27 wharf road Apapa Lagos drawn via Diamond Bank Plc cheque no; 42613519 account no; 0015810435 belonging to JPROS INT. NIG LTD. Do (You) have anything to say?
Deputy Governor: I say before this Committee that I did not text JPROS to transfer any money to any A/C and this is the truth, JPROS is telling lies against me. Never did I at any point in time requested JPROS either oral or written to do so. He went on to say… ” the God that guides Imo State, the land of Owerri will punish you and those using you”. The creator of human being knows that you are not saying the truth.”
Committee: Mr. Joseph Dina can you tell the committee the phone number of the Deputy Governor which he used in sending to you the account numbers.
Mr. Joseph Dina: Yes I have the number in my phone. (He searches his phone) The number is 08033144421.
Committee: Your Excellency is this your number?
Deputy Governor: Yes it is my number
Committee: Mr. Joseph are these documents the same Documents you gave the committee?
(Bank documents including his bank statements shown to Mr. Joseph Dina)
Joseph Dina: Yes, Sir, they are.
Committee: Your Excellency sir, you can you please go through these documents.
Deputy Governor: (after glancing through the documents) well I have no need for these documents. They are his and have nothing to do with me
Committee: Did His Excellency confirm these monies you said you paid into those accounts you said he texted to you?
Mr. Joseph Dina: Yes, he confirmed them.
Committee: How?
Mr. Joseph: During phone conversations
Committee: Have you been to His Excellency’s house before?
Mr. Joseph: Yes, I have been to his MCC Road private House.
Deputy Governor: (Interjects) No He has not been to my House
Committee: Mr. Joseph can you describe the type of House, where you met him at his MCC Road House?
Joseph Dina: It is a bungalow. He told me it was a factory for garments before
Deputy Governor: Noo o! Not true
Mr. Joseph: You don’t remember? You told your security to wait for me outside and give me direction because I did not know the place before.
Deputy Governor: Okaaay .. Yess I now recollect
Committee: Your Excellency Sir, are you now retracting your earlier statement that Mr. Joseph Dina have (sic) never been to your House at MCC Road?
Deputy Governor: I said I recollect now. So I withdraw my earlier statement
Committee: Mr. Joseph, what side of the house did you sit with His Excellency, the parlour, the bedroom?
Mr. Joseph: His Parlour
Committee: Can you tell us the sitting arrangement
Joseph Dina: I can’t remember is long time
Committee: Your Excellency Sir, If you are right, this contractor must be the worst specie of ingrates
Committee: Mr. Joseph Dina do you have any other thing to tell this Committee?
Joseph Dina: Yes, I equally met him once at his elder brother’s country home in his village. He was in company of the manager of Diamond bank plc Douglas Road branch Owerri, a woman.
Deputy Governor: This man is something else. You have never met me in my Village.
Joseph Dina: You don’t remember. We walked outside towards the golf course area. Oh your Excellency you don’t remember. You know I speak the truth. Also your Excellency do you know Engr. Tim?
Deputy Governor: Yes I know Engr. Tim. He is my chief of staff
Joseph Dina: You remember you sent him to me to negotiate 10% for the job at the beginning of the job.
Deputy Governor: It is not true
Joseph Dina: You don’t remember? In your office.
You showed me big files. Ohakim files. You tell me help bring expert go through Ohakim files. You give jobs, when I tell you that I gave Ohakim money he did not give me contract. You said now is my turn to punish him back. I bring expert to help you look Ohakim files and you give me jobs and I give you 10% you remember?
Deputy Governor: Well I have told you this man is evil. He is from Hell
Joseph Dina: Ok, you say I lie tell MTN give you call log. No no give you data data to show text message. I apply my own we compare”.
It is difficult to appreciate a complaint of denial of fair hearing by Appellant, after fully taking part in the investigation by honouring the invitations and attending the Committee meetings, utilizing opportunity to be heard and defending his actions as well as confronting the witness(s) who accused him of wrong doings before the Adhoc Committee. I think the learned trial Court was right when it asked the question and proceeded to answer, as follows:
“…So the question that remains is: has applicant’s right to fair hearing been violated? I have perused the affidavit in support of this application and on this issue of fairhearing. I am especially drawn to paragraphs 7, 8, 9, 12 and 13. To me, they are attestations that Applicant was give opportunity to make himself heard and he fully utilized opportunity. In Kaduna Textiles Ltd. Vs Umar (1994) 1 NWLR (pt. 319)143 at 159, paragraphs F – G, the Court of Appeal held that once a party has been accorded the opportunity of being heard he cannot complain about fair hearing.” See pages 395 – 396 of the Records.
I do not think Appellant should be taken serious, when he alleged that the panel of 1st to 6th Respondents, as per Exhibit A, did not accord him fair hearing, lamenting that he had no legal advice or legal representation at the Adhoc Committee and that he attended to the invitation by the Adhoc Committee in his innocence of mind, without being aware that he was going to be interrogated over criminal allegations of demanding and collecting bribe from a contractor. Certainly, Appellant was not saying he was refused legal advice or legal representation; neither was he saying he was tried by the Ad Hoc Committee for any criminal offence.
What the Committee did was an inquiry or investigation, as per the terms of reference given to it by the 8th Respondent, and under Section 103 of the 1999 Constitution, the 8th Respondent was perfectly positioned to conduct the inquiry/investigation, as part of its oversight functions. Of course, the recommendations made by the Adhoc Committee, as per the Exhibit A page 209 – 210 of the Records, shows that Appellant was not on trial for criminal offence, as the Vote of no Conference, recommended to be passed on him, and the recommendation that the Head of Service should commence immediate disciplinary action, in accordance with the Civil Service Rules, against the Permanent Secretary and other erring directors/staff, was not and can not be seen as punishment for crimes of Bribery and corruption or for any criminal offence.
We have held, repeatedly, that a party who has been given ample opportunity to be heard or has, infact, been heard, cannot complain of denial of fair hearing. See the case of Enukeme Vs Mazi (2014) LPELR – 23540 (CA); GTB PLC VS Fadco Ind. Nig. Ltd. (2013) LPELR – 21411 (CA); FHA VS Kalejaiye (2011) All FWLR (pt. 562)1633; Chevron Nig. Ltd. Vs Osigwe (2014) LPELR – 23534 (CA); Fulani Vs Rafawa & Ors (2013) LPELR – 20384 (CA).
In the course of enjoying his liberty to be heard by the Panel of 1st to 6th Respondents, Appellant even resorted to the use of foul language and freely called Mr Joseph Dina names, when the latter revealed the sordid details of the illicit deals he and Appellant may have had when they operated together and enjoyed each other’s confidence. See pages 206 and 208, where the Appellant, in reaction to a revelation made by Mr. Joseph Dina said to him:
“… The God that guides Imo State… will punish you and those using you…” (page 206)
“Well, I have told you this man is evil. He is from Hell!” (page 208)
That was Appellant’s way of warding off a serious allegation levelled against him for abusing his office and collecting kick backs to the tune of N458,000,000.00 leading to abandonment of government projects! He was, indeed, given opportunity to be hearing and was infact heard.
I am even curious to ask whether a case of Fundamental Rights can lie in this matter, where Appellant only struggled to save his political office, and only complained of lack of fair hearing by the 1st to 8th Respondents, whom he suspected were using the guise of the investigation of his office assignment to remove him from office. See paragraphs 4, 5, and 8 of Appellants’ supporting affidavit where he had alleged:
“(4) Sometime in February 2013 I came upon plans to remove me from office of Deputy Governors of Imo State as part of plans to distance me from Government circles on permutations for 2015 Elections
(5) Later in the month, the 7th Respondent, the Speaker of Imo State House of Assembly set up the “Special Adhoc Committee to investigate the Remote Cause(s) of Stoppage/Abandoment of Work on some Roads in Owerri, Orlu and Okigwe Municipalities” under the Chairmanship of the 1st Respondent and with the 2nd – 6th Respondents as members…
(8) At the Committee sitting, the 1st to 6th Respondents accused me pursuant to a petition by JPROS International Nig. Ltd… of collecting bribe which I pointedly denied, especially on grounds that I only met the contractor in the Governor’s company. It was the Governor who introduced the contractor (JPROS Ltd) and gave approval for 100% payment to the contractor through the Accountant General. One Mr. Joseph Dina gave evidence before the Adhoc Committee on behalf of the contractor, JPROS Ltd. I insisted that Mr. Joseph Dina of JPROS Ltd was procured to tell lies against me as I never asked for nor collected any bribe from him of from anybody.”
Thus, the entire case (application) was predicated on a presumed fundamental right of the Appellant to keep his office of Deputy Governor of Imo State.
I am afraid a Political Office, like that of President, Vice President, Governor, Deputy Governor, Minister or Commissioner or/and claim to any job or office cannot qualify as a Fundamental Right under our Laws. Chapter IV of the 1999 Constitution (Sections 33 to 44), as amended carry the bill of rights that qualify as fundamental rights, and none relates to Appellants claims. It is true that where one is removed from office, on account of wrong doing, without being given a hearing, or fair hearing on the alleged wrong, the issue of denial of fair hearing can be raised in a suit taken out to contest the wrongful removal from office. Of course, such a case, of wrongful removal from office, cannot be sustained, primarily, as a fundamental rights action. See the case Tukur VS Taraba State (1997)6 NWLR (pt.510)549 at 578, where the Supreme Court said:
“This matter was taken to the trial Court on a wrong vehicle instead of a writ of summons designed for initiating action. It was started with a motion on notice under fundamental rights procedure under the Constitution. The crux of the complaints in the trial Court however is whether the Plaintiff was lawfully deposed as Emir of Muri, but was cloaked under fundamental rights. Since the main procedural approach at the trial Court was incompetent, no relief could flow from it.”
At pages 576 – 577 of the Judgment, it was also held:
“The Primary complaint of the appellant in the whole case was his deposition as the Emir of Muri; the alleged breaches of fundamental rights, fair hearing, liberty and freedom of movement were merely accessory to this primary complaint. The proceedings by way of the Fundamental Rights (Enforcement Procedure) Rules, are inappropriate in the circumstances …” See also Egbomnu VS Borno Radio Television Corporation (1997)12 NWLR (pt. 531)29.
I cannot, therefore, now fault the findings of the trial Court that the Appellant had been given opportunity to be heard and was, in fact, duly heard by the Committee of the 8th Respondent in Exhibit A and that the Report of the 1st to 6th Respondents (Exhibit A) did not violate the fundamental rights of the Appellant.
I resolve the issue against the Appellant. On the whole, I hold that, though the issue one was resolved in favour of the Appellant, that the trial Court was wrong to hold that it had no jurisdiction to hear the case, because it claimed that the 10th Respondent, being a Federal Agency, did not come under its jurisdiction, that was only pyrrhic victory, as the trial Court had rightly heard the case on its merits and dismissed it for failure of Appellant to establish the claims of violation of his fundamental rights.
The Appeal is, accordingly, dismissed for lacking in merit.
Parties shall bear their respective costs.
PETER OLABISI IGE, J.C.A.: I had the privilege of reading in advance the judgment of my learned brother MBABA, JCA, and entirely agree with it.
FREDERICK O. OHO, J.C.A.: I have had the privilege of reading in draft the judgment of my learned Brother ITA G. MBABA, JCA just delivered and I agree with his reasoning and conclusions therein. The point of derailment of the learned trial Judge as far as this matter is concerned is its decision in declining jurisdiction to hear the matter after deciding same under Section 251 (1) (p) (q) and (r) of the Constitution of Nigeria, 1999 (as amended) being a State High Court in an application brought by the Applicant for the enforcement of his Fundamental Human Rights pursuant to Section 46 of the Constitution. In its decision, the lower court had observed as follows;
“…10th Respondent is the commissioner of Police of Imo State. By address filed in the suit, all parties agree that he is an agent of the Federal Government. He is very much a party to this suit… The court reviewed a lot of authorities on the issue…and held that the essence of Section 251 (1) (p) (q) and (r) is to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agency is a party. I see no reason to draw a distinction just because this is matter brought under the FREP Rules…”
There of course goes the big fault line exposing all the cracks in the lower court’s decision on the issue. The lower trial court, refusing to draw the necessary distinctions in view of the looming presence of Section 46 of the Constitution of Nigeria 1999 (as amended), which is pari materia with Section 42 of the 1979 Constitution is what has necessitated this contribution on the issue. In the popular decision of the supreme court on the subject in GRACE JACK vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2004) 14 WRN 91 AT 103, per KATSINA-ALU, JSC the court held as follows;
“…Now, be that as it may, it has been contended for the respondent that Decree No.107 of 1993 has taken away the jurisdiction of the State High Court. I am unable to agree with this contention. I have closely read Decree 107 of 1993 and find nothing even remotely which has repealed or abrogated the provisions of Section 42 of the 1979 Constitution. Rather a careful reading of the Decree reveals that the provisions of Section 42 of 1979 Constitution were preserved by Decree No.107 of 1993. I would like to add that Section 230(1) of Decree 107 of 1993 is a general provision relating to the Jurisdiction of the Federal High Court while Section 42 of the 1979 Constitution relates to special Jurisdiction for the enforcement of the Fundamental rights provided for in chapter iv of the 1979 Constitution. As I have already stated, the High Court of Benue State has concurrent jurisdiction with the Federal High Court in matters of the enforcement of a person’s fundamental rights provided for in chapter iv of the 1979 Constitution…”
The usual argument generally proffered each time the jurisdiction of the State High Court is being sought to be impugn against that of the Federal High Court, is that it is the Federal High Court that has exclusive jurisdiction in Civil Causes and matters relating to or pertaining to or arising from “Administrative” or “Management” functions of the Federal Government or any of its Agencies. The objector would usually rely on Section 251(1) (p), (q) and (r) of the Constitution of Nigeria 1999 (as amended) and the decision of the Supreme Court in N.E.P.A. Vs. EDEGBERO (2002) FWLR (Pt.139) 1556 and a host of other decisions on the subject.
In all such situations, the question that should most appropriately be asked but which is seldom asked if at all is; whether the 10th Respondent, that is, the Commissioner of Police, Imo State as an Agency of the Federal Government and in its role in maintaining law and order under Section 4 of the Police Act in the circumstances of this case, has anything to do with the “Administration” or “Management” functions of the Federal Government or the Nigeria Police as an Agency of the Federal Government? Having carefully gone through a plethora of authorities on the subject, what perhaps, is clear at this point, is that the proviso to paragraph (p), (q) and (r) or section 251(1) of the Constitution of Nigeria, 1999 (as amended) has received several interpretations by the Superior Courts, and some of which seem to be practically in conflict with others, to the very extent that the position presently can be said to be of extreme fluidity.
It is however, suggested here that in view of this situation, the proper and probably by far the safest way to go in matters touching on the subject, will be to toe the line of this court in the case of ODUTOLA vs. N.I.T.E.L. (2006) ALL FWLR, (Pt.335) 73, where the court held that for this proviso to apply, the issue before court must have arisen truly from the “Management” or the “Administrative” functions of the Federal Government or any of its Agencies. The question here, therefore, is; as a Federal Government Agency, whose work schedule under Section 4 of the Police Act Cap. 359 LFN 1990 includes; the prevention and detection of crime, apprehension of offenders, preservation of law and order, protection of lives and property and the enforcement of all laws and regulation with which they are directly charged; whether, the maintenance of law and order is not part of the usual day to day activity of the Nigeria Police? When faced with a similar matter in the case of ODUTOLA Vs. N.I.T.E.L. (Supra), this court, per AUGIE, JCA, concluded and rightly too that even where the defendant is an Agency of the Federal Government and that where the acts complained of have nothing to do with any Management or Administrative functions or decision, that the State High Court cannot be divested of its jurisdiction to hear and to determine the matter. In the recent case of GARBA vs. BIRNIWA & ANOR (2013) LPELR-21478 this court had cause to hold that:
“…what determines jurisdiction of a court apart from the Statute that established the court, is the subject matter to be litigated upon and this (subject matter) is usually determined by the claim of the plaintiff… The proviso to the Section 251(1) (p) (q) and (r) of the 1999 Constitution (as amended) has also cleared every confusion as to the fact that nothing in the provisions of paragraphs (p), (q) and (r) referred above shall prevent a person from seeking redress against the Federal Government or any of its Agencies in an action for damages, injunction or specific performance, where the action is based on any enactment, law or equity.”
From the foregoing, I am simply in complete agreement with my Brother that this suit is one well within the subject matter jurisdiction of the State High Court, being one in which the Applicant had sought to enforce his fundamental human rights and which absolutely bore no relationship with the Administrative or Management functions of the Federal Government or the Nigeria Police. In the circumstances of this case I also find and do hold that there was no impediment to the trial lower court’s exercise of the subject matter jurisdiction. The issue is also resolved in favour of the Appellant, while I endorse the fuller reasons in the lead judgment in also dismissing this Appeal.
Appearances
CHIJIOKE O.P. Emeka Esq with him K.I. Uduma Esq For Appellant
AND
Chief Adeyinka Akintola SAN with him C O C Emeka – Izima Esq, G.O. Moneke Esq 1st to 8th Respondents; 9th & 10th Respondents: Unrepresented. For Respondent
