SKYFIELD PROPERTY DEVELOPMENT LTD v. NWACHUKWU
(2021)LCN/15573(CA)
In The Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, June 29, 2021
CA/L/1224/2015
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
SKYFIELD PROPERTY DEVELOPMENT LIMITED APPELANT(S)
And
MRS. MERCY IFEANYI NWACHUKWU RESPONDENT(S)
RATIO:
JURISDICTION
The law compels the Courts to accord premier attention to issue of jurisdiction, which is numero uno in adjudication, when raised in any proceedings.
See Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; PDP v. Umeh (2017) 12 NWLR (Pt. 1579); APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; Adama v. Maigari (2019) 3 NWLR (Pt. 1658) 26; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254. I will obey this legal commandment so as not to insult the law.
Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding. See Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1; Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548. PER OBANDE FESTUS OGBUINYA, J.C.A
INGREDIENTS OF JURISDICTION
A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”. See Madukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F.J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387; Nworika v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. The three ingredients must co-exist in order to infuse jurisdiction into a Court. Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be trapped in the intractable web of nullity. See Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra). PER OBANDE FESTUS OGBUINYA, J.C.A
FACTS THAT ARE UNDENIED ARE DEEMED ADMITTED
The appellant’s failure to controvert those critical averments, that the petition wore a badge of bad faith, is a costly one. It has caustic consequence on the appellant’s case. The legal effect is that those depositions, which convicted the petition on the altar of bad faith, were unchallenged. The law grants to the Court, trial or appellate, the unbridled licence to act on unchallenged affidavit. See Olofu v. Itodo (2010) 18 NWLR (Pt. 1225) 545; Uzodinma v. Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Tukur v. Uba (2013) 4 NWLR (Pt. 1343) 90; Inegbedion v. Selo-Ojemen (2013) 8 NWLR (Pt. 1356) 211; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 539; Owuru v. Adigwu (2018) 1 NWLR (Pt. 1599) 1; Modibbo v. Usman (2020) 3 NWLR (Pt. 1712) 470. The appellant’s conduct, non-refutation of the killer charge of mala fide against the petition, is a classic exemplification of admission. By the undiluted admission, it conceded, on its own volition, that the petition was activated by bad faith. The lower Court paid due obeisance to the law when it acted on the respondent’s non-debunked averments in her affidavit. I endorse that judicious act in toto. PER OBANDE FESTUS OGBUINYA, J.C.A
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal probes into the correctness of the decision of the Federal High Court of Nigeria, Lagos Division (hereinafter addressed as “the lower Court”), coram judice: C.J. Aneke, J., in Suit No. FHC/L/CS/673/2014, delivered on 6th October, 2015. Before the lower Court, the appellant was one of the respondents while the respondent was the applicant.
The facts of the case, which transfigured into the appeal, are amenable to brevity and simplicity. Sometime in October, 2010, the respondent, a businesswoman, took possession and occupation of the appellant’s shop No. 168, at an annual rent of N320,000.00. The respondent paid the one year rent to Skyfield Savings and Loans Limited – a parent/holding company of the appellant. She carried on supermarket business thereon. On 20th September, 2012, the appellant locked up the premises for no just cause. The respondent challenged the appellant’s act in the Magistrate’s Court of Lagos State which gave judgment in her favour. The appellant did not obey the orders of the magistrate’s Court, rather its officers broke into the premises and carted away her goods therein. The appellant proceeded to write a petition to the Commissioner of Police, Special Fraud Unit, Lagos wherein it alleged that the respondent forged the deposit slip which was used to pay for the rent. The police, on the strength of the petition, arrested and detained the respondent for ten (10) days under degrading circumstances. After her release, she was being hunted for with further threats to arrest and detain her indefinitely. The respondent viewed the petition as one made in bad faith. Sequel to these, the respondent beseeched the lower Court, via an originating summons filed on 13th May, 2014, and table against the appellant and other respondents, jointly and severally, the following reliefs:
1. An order that the arrest and detention of the Applicant for no just cause and without due process of the law by the 1st, 2nd 3rd and 4th Respondents at the instigation of the 5th Respondent from the 20th – 31st December, 2013 are unlawful, illegal, unconstitutional and amount to total deprivation and gross violation of the fundamental right to personal liberty of the Applicant as guaranteed under Section 35 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Article 6 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10, Laws of the Federation of Nigeria, 2004.
2. An order that the degrading treatment to which the Applicant was subjected to by the Respondents their servants, officers/agents during the period of detention above is unlawful, illegal, unconstitutional and a violation of the right of the Applicant to the dignity of her person.
3. An order that the unceasing telephone call to the Application (sic) on her mobile phone, and the accompanying threat to arrest and detain her by the 2nd, 3rd and 4th Respondents at the instance of the 5th Respondent is unwarranted, unlawful, ultra vires and abuse of the powers conferred on the Respondents.
4. An order for compensation in the sum of N5,000,000.00 (Five Million Naira) in favour of the Applicant against the Respondents severally and jointly for damages suffered by the Applicant as a result of the embarrassment, intimidation, inconvenience and degrading treatment meted on the Applicant during detention of the Applicant by the Respondents.
5. An order of perpetual injunction restraining the Respondents, their officers, agents and servants or any one acting for them from further arresting and detaining the Applicant in connection with the Teller No. 0398960 property of 6th Respondent for lodgment of cash.
6. An order of perpetual injunction restraining the Respondents, their agents, servants, officers or anyone acting through them from calling, SMS or otherwise threatening, intimidating and or degrading the Applicant and members of her family.
In reaction, the appellant joined issue with the respondent and denied liability by filing a counter-affidavit and preliminary objection. Both were accompanied by written addresses. The appellant’s co-respondents filed processes too. The respondent filed re-joinder to the appellant’s processes. The suit was duly heard by the lower Court. In a considered judgment, delivered on 6th October, 2015, found at pages 123 – 142 of the record, the lower Court dismissed the appellant’s preliminary objection and granted the respondent’s claim.
The appellant was dissatisfied with the decision. Hence, on 29th October, 2015, the appellant lodged a 3-ground notice of appeal, reflected at pages 147 – 155 of the record, wherein it prayed this Court as follows:
1. A DECLARATION that the trial Court lacks the Jurisdiction to hear and determine the Application in respect of which the judgment appealed against was given.
2. AN ORDER setting aside the judgment of the Court delivered on 6th July, 2015 directing the Appellant to pay a cost of N3,500,000.00 (Three Million, Five Hundred Thousand Naira) in connection with the validity of teller No. 0398960.
3. SUCH OTHER OR FURTHER ORDERS as the Court of Appeal may deem fit to make in the circumstances.
Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure for hearing civil appeals in this Court. The appeal was heard on 15th June, 2021.
During its hearing, learned appellant’s counsel, Sandra Idedia, Esq., adopted the appellant’s brief of argument, filed on 11th January, 2016, and the appellant’s reply brief, filed on 26th May, 2017, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned respondent’s counsel, Dr. Fred Okeke, adopted the respondent’s brief of argument, filed on 23rd May, 2016, as forming his reactions against the appeal. He urged the Court to dismiss it.
In the appellant’s brief of argument, learned counsel distilled two issues for determination to wit:
Issue one:
Whether the trial Court was right to have assumed jurisdiction to hear and determine a fundamental right enforcement issue flowing from a subject matter outside the provision of Section 251 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Issue two:
Whether the trial Court was right when it held that the Appellant acted in bad faith, by reporting a case of forgery to the Police.
In the respondent’s brief of argument, learned counsel crafted a single issue for determination, namely:
Whether the trial Court was not right in dismissing the notice of preliminary objection and hearing the case and whether the Court was right in holden(sic) that the petition by the Appellant was made malafide in the circumstances of this case.
A close look at the two sets of issues shows that they are identical in substance. In fact, the respondent’s solitary issue can be conveniently subsumed under the appellant’s. For this reason of sameness, I will decide the appeal on the issue nominated by the appellant; the undoubted owner of the appeal.
Arguments on the issues:
Issue one
Learned appellant’s counsel stated the importance and ingredients of jurisdiction as noted in Oyelese v. INEC (No. 2) (2011) 27 WRN 64; McFoy v. U.A.C. (1962) AC 152; SPDC (Nig.) Ltd. v. Isaiah (2005) 44 WRN 79. He conceded that the High Court of a State and the Federal High Court have concurrent jurisdiction in fundamental right actions no matter the party involved. He relied on Jack v. UNAM (2004) 5 NWLR (Pt. 865) 208; Nigerian Navy v. Garrick (2006) All FWLR (Pt. 315) 45. He submitted that in the light of Sections 46, 251 and 272 of the Constitution, as amended, both Courts no longer enjoy concurrent jurisdiction in fundamental right actions. He cited Adetona v. Igele General Enterprises Ltd (2011) 7 NWLR (sic-no part); NDLEA v. Babatunde Omidina (2013) 16 NWLR (Pt. 1381) 589; Jack v. UNAM (supra). He claimed that the lower Court had no jurisdiction over tenancy disputes or forgery and uttering based on Section 251 of the Constitution, as amended. He insisted that the lower Court had no jurisdiction to hear the fundamental right action when there was pending criminal charge on forgery and uttering of document. He referred to NDLEA v. Babatunde Omidina (supra); Adetona v. Igele General Enterprises Ltd (supra). He explained that the fundamental right action did not arise from breach of matters in Section 251 of the Constitution, as amended. He concluded that it is the High Court of a State that has the jurisdiction to hear tenancy, forgery and uttering forged document particularly in respect of fundamental rights.
On behalf of the respondent, learned counsel contended that the lower Court’s assumption of jurisdiction was not contrary to Section 251 of the Constitution, as amended. He observed that the first – fourth respondents in the case were federal government agents. He added that the petition on forgery by the appellant came under “allied offences” in Section 251 (2) of the Constitution, as amended. He maintained that the High Court of a State and the Federal High Court have jurisdiction over case of forgery. He relied on Jack v. UNAM (supra); Gbileve v. Addingi (2014) 16 NWLR (Pt. 1433) 213. He declared the cases, cited by the appellant, on the issues as inapplicable.
Issue two
Learned appellant’s counsel submitted that the appellant had the liberty to make the report of forgery against the respondent and the police had the right to investigate and prosecute the respondent. He reasoned that both acted according to the law and there was no bad faith in the petition. He relied on Ubochi v. Ekpo (2014) LPELR – 23523 (CA); Fajemirokun v. C.B. Nig. Ltd. LER (2009) SC. 336/2002; Duru v. Nwagwu (2006) 5 SCNJ 394; Akaninwo v. Nsirim (2008) All FWLR (Pt. 410) 610; Okoye v. INEC (2009) LPELR – 4727 (CA). He persisted that there was no bad faith in the petition because it was in respect of forgery while the judgment of the magistrate’s Court was about tenancy.
For the respondent, learned counsel argued that the appellant had not shown that the lower Court’s finding on the petition was made in bad faith was perverse or a miscarriage of justice to warrant interference by this Court. He cited Ngillari v. NICON (1998) 8 NWLR (Pt. 560) 1; Pan African Int. Incorporation v. Shoreline Lifeboats Ltd. (2010) 3 SC (Pt. 1) 59. He posited that the right to report commission of crime to the police is not absolute especially when made in bad faith. He relied on Fajemirokun v. C.B. Nig. Ltd. (2009) 1 SC 336. He explained that there was nothing rebutting the fact that the petition was not made in bad faith as it was made to circumvent the judgment of the Magistrate’s Court and to justify the looting of the respondent’s goods. He referred to Akaninwo v. Nsirim (2008) 11 NWLR (Pt. 410) 610 (sic-wrong citation) for the meaning of bad faith.
Resolution of the issues
In total loyalty to the injunction of the law, I will settle issue one first. The meat of the issue is plain. It centres on the jurisdiction of the lower Court to hear the suit which mothered this appeal. The law compels the Courts to accord premier attention to issue of jurisdiction, which is numero uno in adjudication, when raised in any proceedings.
See Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; PDP v. Umeh (2017) 12 NWLR (Pt. 1579); APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; Adama v. Maigari (2019) 3 NWLR (Pt. 1658) 26; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254. I will obey this legal commandment so as not to insult the law.
Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding. See Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Unltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1; Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548.
A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”. See Madukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F.J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387; Nworika v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. The three ingredients must co-exist in order to infuse jurisdiction into a Court. Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be trapped in the intractable web of nullity. See Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra).
Interestingly, the case law has endorsed, in toto, a statement of claim as the major barometer to be used by the Court to measure the presence or absence of its jurisdiction. See Ikine v. Edjerode (2001) 18 NWLR (Pt. 745) 446; A.D.H. Ltd. v. A.T. Ltd. (2006) NWLR (Pt. 989) 635; Oni v. Cadbury (2016) 9 NWLR (Pt. 1516) 80; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; B.B. Apugo & Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Yardua v. Yandoma (2015) 4 NWLR (Pt. 1466) 213; Akpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124; Isah v. INEC (supra); Lau v. PDP (supra); Azubuogu v. Oranezi (supra); Agi v. PDP (2017) 17 NWLR (Pt. 1595) 386; A.-G, Fed. v. A.-G., Anambra State (2018) 6 NWLR (Pt. 1615) 314; Roe Ltd. v. UNN (2018) 6 NWLR (Pt. 1616) 420; F.U.T., Minna v. Olutayo (2018) 7 NWLR (Pt. 1617) 176; A.-G., Lagos State v. Eko Hotels (2018) 7 NWLR (Pt. 1619) 518.
Nota bene, in an action commenced by dint of an application or originating summons, as in the case in hand, the affidavit in support serves as the statement of claim. See Ahmed v. Ahmed (2013) 12 SCM (Pt. 2) 55; Elelu-Habeeb v. A.-G., Fed. (2012) 3 SCM 74; Akande v. Adisa Arowolo v. Olowookere (2011) 18 NWLR (Pt. 1278) 280; Bakare v. Ajose-Adeogun (2014) 6 NWLR (Pt. 1403) 320; Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; PDP v. Ezeonwuka (2018) 3 NWLR (Pt. 1606) 187; Lau v. PDP (2018) 4 NWLR (Pt. 1608) 60; Owuru v. Adigwu (2018) 1 NWLR (Pt. 1599) 1; CBN v. Aribo (2018) 4 NWLR (Pt. 1608) 130; Mainstreet Bank Capital Lt. v. Nig. RE (2018) 14 NWLR (Pt. 1640) 423; Zailani v. Gumau (2020) 2 NWLR (Pt. 1709) 452. Relief too is one of the available parameters to gauge the presence or absence of jurisdiction of Court. See Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 114; PDP v. Oranezi (2018) 7 NWLR (Pt. 1618) 245; Gbileve v. Addingi (2014) 16 NWLR (Pt. 1433) 394.
Now, the main plinth of the appellant’s chief grievance, indeed its trump card on the terminal issue, orbits around the lower Court’s unbridled assumption of jurisdiction over the respondent’s suit, which was erected under the canopy of fundamental right enforcement, when the casus belli did not germinate from any of the items enumerated under Section 251 of the Constitution, as amended. Unarguably, the agitation is canalised within a narrow compass.
In an avowed bid to pacify the desire of the law, I have consulted the record – the bible of every appeal. My first port of call is the residence of the affidavit in support of the originating summons – the originating process that ignited the action. The 24-paragraph affidavit, which is the version/equivalent of statement of claim, colonises pages 11 – 16 of the record. I have perused it with the finery of a toothcomb. Admirably, it is rebellious to ambiguity. A synopsis of the crux of the respondent’s case, discernible from the affidavit, is that she was detained for 10 days, commencing from 20th – 31st December, 2013, at the Police Special Fraud Unit (SFU), Ikoyi, Lagos, on the instigation of the appellant, without any scintilla of justification, under dehumanising conditions, videlicet: food starvation, denial of change in apparels and bathing.
Indubitably, the respondent’s first three reliefs are anchored on her wrongful arrest and detention by the police, at the incitement of the appellant, in violation of her fundamental right as guaranteed by Section 35 of the Constitution, as amended. Her fifth relief appertains to a foreclosure of her arrest and harassment in futuro. It is a classic exemplification of quia timet remedy that is sanctioned by Section 46(1) of the Constitution, as amended. The fourth relief is weaved on a claim for compensation. That is cognisable under Section 35 (6) of the Constitution, as amended. See Jim-Jaja v. C.O.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225; FBN Plc v. A-G; Fed (2018) 7 NWLR (Pt. 1617) 121; Muhammed v IGP (2019) 4 NWLR (Pt. 1663) 492. The fifth and sixth reliefs are supplications for orders of injunction. In the eyes of the law, an injunctive claim has no independent life of its own. Its success or failure is parasitic on that of a declaratory relief. See Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Put differently, those reliefs bear/wear the hallmark of tributary relief that are tied to the apron strings of the main claim. A Court that is equipped with jurisdiction to hear the main claim is clothed with the vires to try the ancillary relief and vice versa. This traces its pedigree to the latin maxim: Accesoruim non-ducit sedsequitussuum principale, id est, that which is incidental does not lead, but follows its principal. See Tukur v. Govt of Gongola State (1989) 4 NWHR (Phill 7) 517.
Thus, the respondent’s claims were hinged on her rights to dignity of human person and personal liberty as enshrined in Sections 34 and 35 of the Constitution, as amended respectively. It stems from these that the respondent’s claims, as chronicled above, fall squarely within the commodious four walls of fundamental rights. It follows that the respondent’s claims as amply demonstrated above, are deeply rooted in the allegation of breach of her fundamental rights. This brief legal anatomy of fundamental right, done in due obeisance to the law, with due reverence clearly punctures and demolishes the appellant’s defeasible defence, id est, that the subject matter of the action does not trace its ancestry to the items in Section 251 of the Constitution, as amended. The defence which the appellant brandished and paraded was disabled from its birth!
My noble Lords, it is now settled law beyond any per adventure of doubt, that the High Court of a State and the Federal High Court share concurrent jurisdiction in matters bordering on enforcement of fundamental rights as donated and ordained by Section 46 (1) of the Constitution, as amended, irrespective of the parties therein. See Jack v. UNAM (2004) 5 NWLR (Pt.865) 208; F.U.T Minna v. Olutayo (2018) 7 NWLR (Pt. 1617) 176. Recently, in EFCC v. Wolfgang Reinl (2020) 9 NWLR (pt. 1730) 489 at 514 and 515, the Supreme Court, per Kekere – Ekun, JSC, incisively, re-echoed the inelastic position of this law in these illuminating words:
…So long as the enforcement of the applicant’s fundamental right is the main claim in the suit and not an ancillary claim, the Federal High Court and State High Courts, including the High Court of the FCT, concurrent jurisdiction to entertain it. See Tukur v. Government of Gongola State (supra).
This magisterial pronouncement, which is housed in an ex-cathedra authority, constitutes a serious coup de grace to the appellant’s seemingly dazzling contention on the absence of jurisdiction of the lower Court to entertain the respondent’s suit. It amply reveals that the appellant’s defence is mired in the quicksand of defeasibility. It confirms absolutely that the lower Court is the appropriate forum competent for the determination of the respondent’s action which is pegged on the infractions of her fundamental rights.
In the spirit of emphasis, a fundamental right action is peculiar and special with its own rules for its adjudication. See Onyekwuluje v. Benue State Govt., (2015) 16 NWLR (Pt. 1484) 40 per Peter-Odili, JSC. Put differently, it is, to a large extent, sui generis. The jurisdiction donated to the lower Court by the prescription of Section 46 (1) of the Constitution, as amended, displayed earlier, is classified as a special jurisdiction while the one under Section 251 (1) of the selfsame Constitution, as amended, is categorised as a general jurisdiction. It is a notorious principle of law, known for its antiquity, that where there is a special provision in a statute/legislation, a later general provision, in the same law, is not to be interpreted as derogating from what has been specially provided for individually save an intention to do so is unambiguously declared. In the latin days of the law, it was encapsulated in the Maxims: Generali specialibus non derogrant: general things do not derogate from special things; or Specilia generalibus derogrant- special things derogate from general one. See Schroder & CO. v. Major & Co. Ltd (1989) 2 SCNJ 210/(1989) 2 NWLR (Pt. 101) 1; Tukur v. Govt., of Gongola State (supra) Abubakar v. Nasamu (No. 1) 2012) 17 NWLR (Pt. 1330) 40; Adebayo v. PDP (2013) 17 NWLR (pt. 1382) 1; A-G, Lagos State v. A-G. Fed. (2014) 1 NWLR (Pt. 1412) 217; Ardo v. Nyako (2014) 10 NWLR (Pt. 1416) 591; Jombo United Co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt. 1536) 439; PDP v. Umeh (2017) 12 NWLR (Pt. 1579) 272; A.-G., Bauchi State v. A.-G., Fed (2018) 17 NWLR (Pt. 1648) 299. This ageless principle of law, with due deference, exposes the poverty of the appellant’s alluring argument that the lower Court’s jurisdiction to hear fundamental right matter is fixated by its jurisdictional provision in Section 251(1) of the Constitution, as amended. It flies in the face of the law!
In the light of this legal exposition, tour d’ horizon on the co-extensive jurisdiction of the Federal High Court and the High Court of a State on fundamental right matters, the lower Court did not fracture the law when it assumed jurisdiction to entertain the respondent’s action. On this score, all the diatribes, which the appellant heaped against the lower Court’s dismissal of its preliminary objection, are idle and pale into insignificance. I therefore dishonour the learned appellant’s counsel’s enticing and salivating supplication to sacrifice the finding of the lower Court on the undeserved shrine of wrong assumption of jurisdiction for want of legal justification. In the end, I have no choice than to resolve the issue one against the appellant and in favour of the respondent.
Having dispensed with issue one, I proceed to settle issue two. The issue, though a stubborn one, is submissive to easy appreciation. It chastises the lower Court’s finding that the appellant’s petition to the police against the appellant was made in bad faith.
By way of prefatory remarks, the respondent’s case, as already dissected, was weaved on enforcement of fundamental right. Fundamental rights have been defined as “the rights one holds by virtue; solely of being human person, that is to say, right naturally inhering in the human being”, Prof. B. O. Nwabueze, Constitutional Democracy in Africa Vol. 3 (Ibadan: Spectrum Book Ltd., (2004) 1. They are “rights attaching to man as a man because of his humanity”. See Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 53 at 589, per Oputa, JSC. They have been described as standing above ordinary laws of the land and a primary condition for a civilised existence. See Kuti v. A. –G. Fed. (1996) 41 LRCN 200; Odogu v. A. –G., Fed. (1996) 9-10 SCNJ 51. Thus, they occupy a kingly position in the residence of human rights. Fundamental rights fall within the specie of negative rights as against positive rights: economic, social, cultural and environmental rights – A Borokinu “The impact of Military Rule on Fundamental Human Rights in Nigeria” in Okpara Okpara (ed) Human Rights, Law and Practice in Nigeria, vol 1 (Enugu: Chenglo Ltd., 2005) 353. Entrenchment of fundamental rights provisions in the Nigeria Constitutions traces its paternity to the Willink’s Commission of 1957: C. C. Nweze, JSC, The New Regime of Human Rights Litigation in Nigeria: Old Rights; New Enforcement Strategies in C. C. Nweze, A. J. Offiah and A. O. Mogboh (Jnr) (eds.), Beyond Bar Advocacy: Multidisciplinary Essays in Honour of Anthony Okoye Mogboh, SAN (Umuahia: Impact Global Publishers Ltd., 2011) 394. The evolution of fundamental rights was “greatly influenced by the European Convention for Protection of Human Rights and Fundamental Freedoms…which, in turn, was influenced by the United Nations’ Universal Declaration of Human Rights of 1948”. See Nweke v. State (2017) 15 NWLR (Pt. 1587) 120 at 144 per Nweze, JSC; Kalejaiye v. L.P.D.C. (2019) 8 NWLR (Pt. 1674) 365.
Fundamental rights are now warehoused in Chapter IV which encompasses Sections 33-45 of the Constitution, as amended. Section 46 of the Constitution, as amended, allocates to every citizen whose fundamental right is, or being harmed even quia timet, to approach the Court to prosecute his complaint and obtain redress. See Sea Trucks (Nig.) Ltd. v. Anigboro (2001) 2 NWLR (Pt. 695) 159; Fajemirokun v. C. B. Nig. Ltd. (2009) 5 NWLR (Pt. 1135) 588; W.A.E.C. v. Adeyanju (2008) 9 NWLR (Pt. 1092) 270; Lafia Local Govt. v. Gov., Nasarawa State (supra); Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; Jack v. UNAM (2004) 5 NWLR (Pt. 865) 278; Gafar v. Government of Kwara State (2007) 4 NWLR (Pt. 1024) 375; Amale v. Sokoto Local Govt. (2012) 5 NWLR (Pt. 1292) 181; Jim-jaja v. C.O.P., Rivers (2013) 6 NWLR (Pt. 1350) 225; Denton-West v. Jack (2013) 15 NWLR (Pt. 1377) 205; Emeka v. Okoroafor (2017) 11 NWLR (Pt. 1617) 92; F.B.N. Plc. v. A.-G., Fed. (2018) 7 NWLR (Pt. 1617) 121; F.U.T., Minna v. Olutayo (2018) 7 NWLR (Pt. 1617) 176; EFCC v. Diamond Bank Plc (2018) 8 NWLR (Pt. 1620) 61; A. – G., Cross River Sate v. FRN (2019) 10 NWLR (Pt. 1681) 401; EFCC v. Reinl (2020) 9 NWLR (Pt. 1730) 489. The accepted procedure for such a redress is encapsulated in the Rules, 2009.
See Onyekwuluje v. Benue State Govt. (2015) 16 NWLR (Pt. 1454) 40. Flowing from the foregoing, the respondent acted ex-debito justitiae when she besieged and implored the lower Court for remedy.
Incontestably, the burden of proof (onus probandi) of breach of fundamental right of a citizen resides in an applicant, id est, the respondent in this appeal. See Fajemirokun v. C.B. Nig. Ltd (supra); Lafia Local Govt. v. Gov., Nasarawa State (supra); Jim-Jaja v. C.O.P, Rivers State (supra). The standard of proof is on the balance of probability or preponderance of evidence. See Arowolo v. Olowokere (2012) All FWLR (Pt. 606) 398.
Now, the appellant’s grudge is that the lower Court erred in law when it held it jointly responsible for the breach of the respondent’s fundamental rights when it merely exercised its civic duty of reporting of commission of an offence. It is now an elementary law, that a person who files a complaint of commission of crime with the police, a duty incumbent on citizens, cannot be guilty of an infringement of a fundamental right of one named in the complaint. In Fajemirokun v. C.B. Nig. Ltd (supra), Ogebe, JSC, confirmed that:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Generally, it is a duty of citizens of this country to report cases of commission of crime to the police for their investigation and what happens after such report is entirely the responsibility of the police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.
See also Duru v. Nwagwu (2006) 5 SC (Pt. III) 70; Oguebie v. FRN (2020) 4 NWLR (Pt. 1715) 531.
It is decipherable from this magisterial pronouncement that the hallowed principle, non-culpability of a citizen for the action of the police/law enforcement agency after lodgment of criminal complaint, is elastic. In other words, the cardinal principle of law admits of an exception. It is rendered lame on demonstration of evidence of mala fide. The connotation of the term mala fide was graphically and eloquently weaved by Tobi, JSC, in Akaninwo v. Nsirim (2008) 9 NWLR (Pt. 1093) 439 at 475. The Law Lord proclaimed:
Mala fide is the opposite of bona fide. It simply means bad faith as opposed to bona fide which is good faith, mala fide projects sinister motive designed to mislead or deceive another. Mala fide is more than bad judgment or mere negligence. It is a conscious doing of a wrong arising from dishonest purpose or moral obliquity. Mala fide is not a mistake or error but a deliberate wrong emanating from ill-will. And so when a trial Judge comes to the conclusion that an application…is mala fide, he will not grant it.
Once again, I have, in due fidelity to the dictate of the law, inspected the record, the spinal cord of the appeal, particularly in the abode of the appellant’s 7-paragraph counter-affidavit which monopolises pages 38 – 40 of the record. I have given a clinical examination to it. It is comprehension-friendly. I have juxtaposed it with the respondent’s affidavit alluded to earlier on. The respondent devoted/dedicated fully loaded paragraphs 22 and 23 of it to averments of bad faith, with catalogued particulars, against the appellant’s petition to the police. Curiously, I am unable to locate, even with every meticulosity and prying eagle-eye of an appellate Court, where the appellant deposed to facts to deflate/neutralise the veracity of the allegation of mala fide levelled against the petition by the respondent.
The appellant’s failure to controvert those critical averments, that the petition wore a badge of bad faith, is a costly one. It has caustic consequence on the appellant’s case. The legal effect is that those depositions, which convicted the petition on the altar of bad faith, were unchallenged. The law grants to the Court, trial or appellate, the unbridled licence to act on unchallenged affidavit. See Olofu v. Itodo (2010) 18 NWLR (Pt. 1225) 545; Uzodinma v. Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Tukur v. Uba (2013) 4 NWLR (Pt. 1343) 90; Inegbedion v. Selo-Ojemen (2013) 8 NWLR (Pt. 1356) 211; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 539; Owuru v. Adigwu (2018) 1 NWLR (Pt. 1599) 1; Modibbo v. Usman (2020) 3 NWLR (Pt. 1712) 470. The appellant’s conduct, non-refutation of the killer charge of mala fide against the petition, is a classic exemplification of admission. By the undiluted admission, it conceded, on its own volition, that the petition was activated by bad faith. The lower Court paid due obeisance to the law when it acted on the respondent’s non-debunked averments in her affidavit. I endorse that judicious act in toto.
That is not all, the lower Court found, precisely at page 140, lines 6-9 of record, that the Magistrate’s Court gave judgment in favour of the respondent and exculpated her of forgery of the deposit slip, as showcased in Exhibit M3, which has been the casus belli between the feuding parties. That solemn finding remains binding on the parties as it was not appealed against. See Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) 117; Gundiri v. Nyako (2014) 2 NWLR (Pt. 1391) 211; Enterprise Bank Ltd v. Aroso (2014) 3 (Pt. 1394) 256; Anyanwu v. Ogunewe (2014) 8 NWLR (Pt. 1410) 437; Akoma v. Osenwokwu (2014) 11 NWLR (Pt. 1419) 462; Ukachukwu v. PDP (2014) 17 NWLR (Pt. 1435) 134; Awodi v. Ajagbe (2015) 3 NWLR (Pt. 1447) 578; Kayili v. Yilbuk (2015) 7 NWLR (Pt. 1457) 26; Agbaje v. INEC (2016) 4 NWLR (Pt. 1501) 151; Emeka v. Okoroafor (2017) 11 NWLR (Pt. 1577) 410; Poroye v. Makarfi (2018) 1 NWLR (P. 1599) 91; Ekwuruekwu v. State (2020) 4 NWLR (Pt. 1713) 114.
In the eyes of the law, the ruling of the Magistrate’s Court, Exhibit M3, wrapped between pages 21 – 26 of the record, is a subsisting decision since it was or has not been set aside by an appellate Court. It can be gleaned from the antecedents of events, that the appellant intentionally and flagrantly flouted the order of the Magistrate Court, that was anterior to its petition, which absolved and acquitted the respondent of forgery of the contentious deposit slip. The law, in its wisdom, has saddled on the appellant the bounden duty/obligation, under pain of punishment, to obey any subsisting order of Courts. It is not at the discretion of a party to obey order of Court. It is of no moment that the order was wrongly made or without jurisdiction. The moment an order of Court, of any cadre/stratum, is alive and extant, it must be obeyed to the letter. Disobedience to Court order constitutes an affront to the rule of law – the soul of democracy. It is a mockery of administration of justice – man’s greatest interest in the universe. It breeds, nurtures and grooms anarchy, chaos or totalitarianism which erode on the peaceful co-existence in a society. It is a trample on the integrity and sanctity of the Court and temple of justice. It renders the Court a paper tiger and a toothless bulldog in the realm of adjudication. The appellant, by resorting to petition against the respondent on the selfsame forgery of deposit slip, treated the Magistrate’s Court order, on the non-forgery of the deposit slip, with disdain and contempt.
It cannot be gainsaid that the appellant’s petition exudes ample nexus with the issue of forgery which was determined in the ruling – Exhibit M3. Indeed, forgery is the heart of the petition. The appellant knowingly bypassed the Magistrate’s Court’s decision, in Exhibit M3, and settled for the petition which stigmatised the respondent with the dent of criminality. To this end, the petition, to all intents and purposes, disclosed sinister or ill-will motive and malice on the part of the appellant. It was fraught with dishonest purpose designed to hoodwink the police against the respondent vis-à-vis the allegation of forgery of the deposit slip. It was a deliberate and conscious wrong intended to tarnish the image of the respondent within the criminology firmament. Put bluntly, it is a classic exemplification of malafide. Thus, the appellant’s conduct, which is a quintessence of mala fide, falls within the slim perimeter of the exception to the principle of non-liability for reportage of commission of crime to the police as enunciated by the apex Court in Fajemirokun v. C.B. Nig. Ltd. (supra) displayed above. The lower Court’s finding of mala fide against the petition is unassailable and well-founded in law. I too crown the petition with the merited toga of mala fide. I accord a wholesale affirmation to the lower Court’s finding.
My noble Lords, for the sake of completeness, the mission of the respondent’s suit was to atone for her liberty that was unduly and unjustifiably confiscated by the police at the instigation/provocation of the appellant. Personal liberty is a commodity of an inherently high value. See FBN Plc v. A.-G, Fed. (2018) 7 NWLR (Pt. 1617) 121. Personal liberty is precious and priceless so that the preservation of the liberty of citizens must always be paramount in every society. See Benson v. C.O.P (2016) 12 NWLR (Pt. 1527) 445. Hence, the Courts are enjoined to protect rights to personal liberty and freedom of movement for enjoyment by the citizenry. See DSS v. Agbakoba (1999) 3 NWLR (Pt. 595) 314; Azuh v. UBN Plc (2014) 11 NWLR (Pt. 1419) 580. No wonder, the law has directed the Courts to display judicial activism and dispatch in determining fundamental right actions. See Fidelity Bank Plc v. Monye (2012) 10 NWLR (Pt. 1307) 1; Lafia Local Govt. v. Gov., Nasarawa State (2012) 17 NWLR (Pt. 1328) 94; Benson v. C.O.P. (2016) 12 NWLR (Pt. 1524) 445.
Flowing from the above expansive juridical survey, done in due allegiance to the law, the lower Court’s finding, that the appellant’s petition was marooned in the murky ocean of bad faith, was not offensive to the law so as to magnet the intervention of this Court. It will smell of judicial sacrilege to tinker with a finding that has not disclosed any hostility to the law. As a result, I will not hesitate to resolve the issue two against the appellant and in favour of the respondent.
On the whole, having resolved the two issues against the appellant, the fortune of the appeal is plain. It is devoid of any grain of merit and merits the reserved penalty of dismissal. Consequently, I dismiss the appeal. I affirm the decision of the lower Court delivered on 6th October, 2015. The parties shall bear the respective costs they expended in the prosecution and defence of the doomed appeal.
ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read before now, a copy of the lead judgment of my learned brother, Obande Festus Ogbuinya, JCA, in which this appeal has been dismissed. The issues distilled for determination have been characteristically, comprehensively resolved. I agree with the reasoning and conclusions therein, and adopt same.
The appeal is completely devoid of merit. I also dismiss the appeal and abide by the orders made in the lead Judgment.
ABUBAKAR SADIQ UMAR, J.C.A.: After reading a draft of the lead judgment delivered by my learned brother, OBANDE FESTUS OGBUINYA, JCA, in this appeal, I find myself on agreement that all issues identified and resolved therein, the appeal is wanting in merit.
I hereby dismiss the appeal and affirmed the judgment of the lower Court.
Appearances:
SANDRA IDEDIA, Esq. For Appellant(s)
Dr. FRED OKEKE For Respondent(s)