UKPONG v. ICPC & ANOR (2022)

UKPONG v. ICPC & ANOR

(2022)LCN/16574(CA) 

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, May 25, 2022

CA/ABJ/CV/926/2020

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

DR. CELSUS UKPONG APPELANT(S)

And

1. INDEPENDENT CORRUPT PRACTICES AND OTHER RELATED OFFENCES COMMISSION (ICPC) 2. FRANK NANAKUMO (FORMER HEAD, ATRM UNIT ICPC) RESPONDENT(S)

 

RATIO

WHETHER OR NOT GROUNDS OF APPEAL MUST ARISE FROM THE DECISION CHALLENGED AGAINST

The law is settled beyond peradventure that grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. Grounds of appeal are not formulated in nubibus. They must be terra firma, id est, arise from the judgment. An Appellant is not permitted to create a bogus decision by the distortion of the decision appealed against in framing or formulating his grounds of appeal. A ground of appeal must not only connect with and relate to the decision appealed against; it must also be relevant. Any complaint that does not relate to the decision appealed against is irrelevant and incompetent especially as a ground of appeal raised against a phantom or a non-existent decision is incompetent. See SARAKI vs. KOTOYE (1992) LPELR (3016) 1 at 23-24, OLEKSANDR vs. LONESTAR DRILLING CO. LTD (2015) LPELR (24614) 1 at 70 and MEKWUNYE vs. EMIRATES AIRLINES (2019) LPELR (46553) 1 at 5-6.
In aliis verbis, there cannot be an appeal against what was not decided by a Court. Where the factual basis for attacking a judgment is false or non-existent, the ground of appeal founded on the fictitious or misleading premise is incompetent and so also is the issue distilled therefrom. Put differently, a ground of appeal that is not founded on the decision appealed against but which is based on an erroneous impression of the judgment is incompetent; so also any issue distilled therefrom. In ATOYEBI vs. GOVT OF OYO STATE (1994) 5 NWLR (PT 344) 290 at 305, Iguh, JSC observed as follows:
“An appeal presupposes the existence of some decision which is appealed against on a given point or points … The appellate jurisdiction of this Court, inter alia, is to review the decisions and/or judgments … if an issue neither arose nor called for the determination of the Court … which therefore, did not consider the issues … such an issue may not form the basis of an appeal … and a purported appeal to this Court on such an issue will be incompetent and may be struck out”.
A ground of appeal must flow from, arise from, or relate to the decision appealed against, especially the ratio decidendi. Where such is not the case, the ground and any issue raised from it cannot be legitimately entertained by the Court. See ORGAN vs. NLNG LTD (2013) 16 NWLR (PT 1381) 506 at 532-533, OLONADE vs. SOWEMIMO (2014) 4 NWLR (PT 1428) 472 at 491 and SPLINTERS NIG LTD vs. OASIS FINANCE LTD (2013) 18 NWLR (PT 1383) 188 at 272.
PER OGAKWU, J.C.A.

WHETHER OR NOT A RATIO DECIDENEI CAN BE CHALLENGED BY GROUNDS OF APPEAL

The settled state of the law is that it is this ratio decidendi that can be challenged by grounds of appeal. Any ground of appeal that does not challenge the ratio decidendi is incompetent and irrelevant along with the issue distilled from the ground. See IKEM vs. EZIANYA (2002) 4 NWLR (PT 757) 245 at 261, MERCANTILE BANK OF NIG PLC vs. NWOBODO (2005) 14 NWLR (PT 945) 379 or (2005) LPELR (1860) 1 at 8-9 and SANMI vs. THE STATE (2019) LPELR (47418) 1 at 4-5. PER OGAKWU, J.C.A.

THE POSITION OF THE LAW ON THE ISSUE OF COMPETENCE AND RELEVANCE OF GROUNDS OF APPEAL

The issue of the competence and relevance of the grounds of appeal and whether they are a challenge to the ratio decidendi of the decision appealed against has been raised suo motu by the Court. It is hornbook law that a Court should not raise an issue suo motu and unilaterally resolve it without hearing the parties; particularly the party that may be adversely affected by the issue raised: OSHODI vs. EYIFUNMI (2000) 13 NWLR (PT 684) 298 at 332, MOJEKWU vs. IWUCHUKWU (2004) LPELR (19030) 1 at 25 and LEADERS & COMPANY LTD vs. BAMAIYI (2010) LPELR (1771) 1 at 12. However, the need to hear parties on an issue raised suo motu is not imperative where the issue raised suo motu goes to the jurisdiction of the Court. See OMOKUWAJO vs. FRN (2013) 9 NWLR (PT 1359) 300 at 332 or (2013) LPELR (20184) 1 at 37-38, IMAH vs. OKOGBE (1993) 9 NWLR (PT 316) 159 at 178, OLUTOLA vs. UNIVERSITY OF ILORIN ​ (2005) ALL FWLR (PT 245) 1154 and OGAR vs. IGBE (2019) LPELR (48998) 1 at 19-21.
The issue of competence and relevance of grounds of appeal is a question of jurisdiction as it borders on competence of the Court to adjudicate based on whether there has been due process of law and whether a feature exists which prevents the Court from exercising jurisdiction: MADUKOLU vs. NKEMDILIM (1962) ALL NLR 587 at 595. The Court does not have jurisdiction to entertain appeals and issues predicated on incompetent and irrelevant grounds of appeal. See BUZU vs. GARABI (2000) LPELR (10692) 1 at 19, AMADI vs. NWOSU (2003) LPELR (12619) 1 at 4-5 and WILLIAMS vs. ADEBAYO (2012) LPELR (7940) 1 at 15. Being an issue of jurisdiction, it is in accord with the prescriptions of the law and decided cases that the same can be raised and decided suo motu without hearing the parties: OMOKUWAJO vs. FRN (supra) and OGAR vs. IGBE (supra). 
PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Abuja Division in SUIT NO. FHC/ABJ/CS/1389/2018: DR. CELSUS UKPONG vs. INDEPENDENT CORRUPT PRACTICES AND OTHER RELATED OFFENCES COMMISSION (ICPC) & ANOR., delivered on 8th July 2020. The Appellant herein, as the Applicant before the lower Court, instituted proceedings for the enforcement of his fundamental rights, wherein he claimed the following reliefs:
“1. A declaration that the purported disciplinary action pending against the applicant extending beyond 60 days from the date a purported query was issued to the applicant contrary to ICPC conditions of service of the 1st respondent is unconstitutional, illegal, and null and void.
2. A declaration that a letter of query dated 22/12/17 issued to the applicant by Bako G. N. not being a supervising officer to the applicant and issued after the applicant was officially released on secondment to the Special Presidential Investigation Panel Abuja (SPIP), was in bad faith, ultra vires, wrongful, illegal, null and void.
​3. A declaration that a purported sub-disciplinary committee comprising the trio of Barr Akeem Bello, Mr. Mike Sowoe and Barr Henry Emore who are heads of departments and not being a Management Staff Disciplinary Committee (MSDC) comprising the chairman, secretary and board members to the 1st respondent cannot try the applicant who is a Grade Level 14 officer and therefore all their purported deliberations vis-à-vis the applicant is ultra vires, illegal, wrongful, unconstitutional null and void.
4. A declaration that the threat and eventual wrongful exclusion of the applicant from Grade level 15 promotion exercise based on a nebulous, non-existent and inapplicable, “government extant rule NO 020701 to wit; ‘all officers who fall within the field of selection for any promotion exercise shall be considered except those who are under disciplinary action’ not expressly encapsulated in ICPC (1st Defendant) conditions of service is illegal, null and void.
5. A declaration that the 2nd respondent constant discrimination and morbid hatred against the applicant including the threat to turn against the applicant the applicant’s criminal complaint to the 1st defendant, without any reasonable cause except the applicant’s place of birth and perceived political affiliation is in bad faith, vindictive, unconstitutional, illegal, null and void.
6. A declaration that the applicant is not under any disability as a citizen of Nigeria to report any crime against the applicant to any law enforcement agency including the 1st respondent therefore the inchoate investigation of the applicant matter is in bad faith vindictive, illegal null and void.
7. A declaration that the conduct of Grade 14 to 15 promotion exercise which excluded the applicant on 5/11/18 and 6/11/18 without being supervised or authorized by the Board Members of the 1st respondent who are yet to be sworn in by the President of the Federal Republic of Nigeria and contrary to ICPC conditions of service has breached to [sic] applicant right to equitable work place and conditions enshrined in Article 15 of African Charter of Human and People’s Rights therefore unlawful null and void.
8. An order of this Honourable Court directing the 1st respondent to promptly conduct promotion exercise including the applicant or promptly promote the applicant and back date such promotion with all the financial implications and privileges to be at par with his colleagues with the 1st respondent.
9. An order of perpetual injunction restraining the respondents, their privies, agents from wrongfully terminating the employment of the applicant or wrongfully stopping the applicant’s salaries, allowances and other privileges, incentives or perquisites of employment accruable to the applicant pending the determination and after the determination of this application.
10. An order of this honourable Court to bring the proceedings of the purported sub or disciplinary committee of the trio of Barr Akeem Bello, Mr. Mike Sowoe and Barr Henry Emore as it relates to the applicant before the Court for the purpose of being quashed for lack of jurisdiction to try the applicant.
11. An order of this honourable Court to bring the proceedings of the purported promotion exercise from Grade 14 to 15 conducted by The Head of Departments and Units not being the board members of the 1st Respondent yet to be confirmed by the National Assembly before the Court for the purpose of being quashed for unlawfully excluding the applicant and acting ultra vires.
12. An order of this Honourable Court directing the respondents jointly and severally to pay damages in the sum of N100,000,000 (One hundred million) only to the Applicant for the breach of his fundamental rights and for compensation for the trauma, shock, shame and emotional stress occasioned by the unlawful exclusions from Grade level 15 promotion exercise and threatening to truncate the applicant’s progress and future employment rights accruable to him as Grade level 15 officer.
13. An order of this Honourable Court to pay all the costs of this litigation as the Court will deem fit”.

The parties filed and exchanged affidavits pro and con the application, and the Respondents equally filed a Notice of Preliminary Objection urging the lower Court to strike out and/or dismiss the Appellant’s action on the following grounds:
“1. The Applicant’s claim is not within the ambit of claims envisaged under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
2. This honourable Court lacks jurisdiction to entertain the Applicant’s claim”.

In obeisance to the stipulations of Order VIII Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, the lower Court heard the preliminary objection along with the substantive application. In its judgment, the lower Court upheld the preliminary objection and struck out the Appellant’s suit. In adherence to the provisions of Order VIII Rules 5 and 6 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, the lower Court did not consider and decide the substantive application for the enforcement of fundamental rights on the merits. The judgment of the lower Court is at pages 287-312 of the Records.

​The Appellant being dissatisfied with the decision of the lower Court appealed against the same. The extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 24th December 2020, but deemed as properly filed on 2nd November, 2021. In prosecution of the appeal, the Records of Appeal were compiled and transmitted on 4th November 2020 and the parties filed and exchanged briefs of argument, which they adopted and relied upon at the hearing of the appeal. The Appellant’s brief was filed on 24th December 2020, but deemed as properly filed on 2nd November 2021. The Respondents filed their brief on 1st November 2021, but also deemed as properly filed on 2nd November 2021. The Appellant formulated four issues for determination as follows:
“1. Whether the written address and counter affidavit filed by respondents in this matter on the 21st day of March 2019 outside the stipulated 5 days from the day of service without the leave of the Court pursuant to Order 2 Rule 6 of the Fundamental Rights (Enforcement Procedure) Rules 2009 is incompetent, invalid, and be [sic] should be discountenanced and struck out.
2. Whether a breach or likely breach of a fundamental rights such as the right to fair hearing and freedom from discrimination based on the place of birth, and perceived political opinion of a Nigerian citizen in the a [sic] process of discipline in a Labour related environment, as well as the right to work under equitable and satisfactory conditions, are unenforceable in the High Court in the State in which the infringement occurred or likely to occur pursuant to Sections 46 (1) the Constitution of the Federal Republic of Nigeria (as amended) ​ and Oder [sic] 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009.
3. Whether the National Industrial Court of Nigeria is contemplated as a High Court in a State to enforce fundamental right infringements and if in affirmative, whether the learned trial Court was wrong not to transfer the this [sic] matter to a Court with appropriate jurisdiction pursuant to Section 22 of the Federal High Court Act.
4. Whether the right to fair hearing of the applicant was not breached when the learned trial Court refused to hear and determine all the pending applications ripe for hearing before it and before giving the final judgment in this matter pursuant to Order 8 Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009 and if the trial Court was wrong whether this honourable Court of appeal can hear and determine these pending applications in the interest of justice”.

On their part, the Respondents distilled a sole issue for determination, namely:
“Whether the trial Court possessed the requisite jurisdiction based on the reliefs sought by the Appellant?”

​Now, the grounds of appeal in the extant Amended Notice of Appeal read as follows:
“1. Ground One:
The learned trial Judge erred in law when it held that the Federal High Court does not have jurisdiction in this matter and therefor [sic] struck out the matter thereby occasioning miscarriage of justice and Court of appeal can rehear the matter in the interest of Justice.
Particular of Error:
a. The fundamental rights breached or likely to be breached by the respondents and which the respondents did not deny in their counter affidavit are provided for in Section 36 (6) of the Constitution and Article 19 of the African Charter on Peoples and Human Rights respectively and are Enforceable by the Federal High Court under the FREP RULES. These were specifically encapsulated in the grounds of the application.
b. The deponent to the counter affidavit, Ilyas Markus, did not derive his information from the 2nd respondent therefor [sic] all his averments purporting to deny the infraction by the 2nd respondent, were hearsay documentary evidence therefor [sic] inadmissible
c. The breach of fair hearing in the process of a purported disciplinary process by an administrative body and discrimination based on the place of birth and political opinion of the applicant as well as denying the applicant, now appellant, the right to work under equitable and satisfactory conditions are fundamental rights that are enforceable under Fundamental Right Rules therefore giving the Federal High Court jurisdiction. These were not denied in the counter affidavit.
d. They [sic] respondents or their deponent in their counter affidavit did not deny categorically that the purported 3-man disciplinary committee who are not Board members of ICPC that purported to try the appellant was not qualified to try the appellant that should have been rightly tried by a disciplinary committee consisting of all the board members including the Chairman and the Secretary of ICPC (13-man committee), thereby denying the appellant fair hearing.
e. National Industrial Court of Nigeria is not contemplated as a Court to enforce a breach or likely breach of any fundamental right of any Nigerian including public servants by virtue of Section 46 (1) of the Constitution of Nigeria as amended and Order 2 Rule 1 of Fundamental (Enforcement Procedure) Rules 2009 (FREP) Rules ​in that they are not a High Court in the State the breach or likely breach to occur but a specialised Court. FREP Rules are not available and are inapplicable to the National Industrial Court of Nigeria. It is not a High Court in the State to seek redress as contemplated under the Constitution.
f. The Court of appeal has the power and jurisdiction to rehear the whole proceedings as if it was instituted in the Court of Appeal as Court of first instance pursuant to Section 15 of the Court of Appeal Act.
g. The Learned trial Court declined jurisdiction but refused to exercise the mandatory power granted to it under Section 22 (1), (2), (3) of The Federal High Court Act, 2004 to transfer the matter to the Court with appropriate jurisdiction as requested by the applicant.
Ground Two:
The learned trial Judge misdirected itself when he held that the claim for the enforcement of the Applicant’s fundamental rights to fair hearing and freedom from discrimination based on applicant’s place of birth and perceived political opinions as well as the right to work in equitable and satisfactory work conditions are ancillary relief but not the principal claim.
Particulars of Error:
(a) Where a breach of the provisions of Chapter IV and African Charter is the principal claim, the procedure under FREP RULES, can be invoked even though other claims are made. See Din vs. A.G of the Federation (1988) 4 NWLR (PT. 87) SC, Borno Radio Television Corporation Vs. Basil Egbuonu (1991) 2 NWRL [sic] 81 AT 89 CA.,
(b) The Applicant reliefs are stipulated in relief Nos; 1, 5, 9,10 and grounds NOs; 3a, 3b, 3c, 3d, 3e, 3f, 3h, 3i, 3j, 3k, 3l. One relief that supports any breach of provision of Chapter IV of the Constitution and African Charter is enough to invoke the procedure. The trial Court did not rely on the above stipulated paragraphs and grounds in which the reliefs were sought to come to its conclusions.
(c) The principal Claims of the Applicant are derived from the grounds for the reliefs and affidavits in support and not, as it were, from the counter affidavit of the Respondents.
(d) Principal Claim is not merely the same as majority reliefs and ancillary claim is not the same thing as minority reliefs. The trial Court should have identified and differentiated the principal and ancillary claims painstakingly and judicially from the process and submissions of the applicant.
(e) The learned Judge overlooked the averments in affidavit, further and better affidavit in support of the Application and concentrated on the averments of the Respondents’ the [sic] counter affidavit. Averments in counter affidavit that was not filed within time and did not controvert the main averments of the fundamental breach or threat to breach in affidavit in support thereby occasioned miscarriage of justice. SEE ALAMIEYESEIGHA V. F.R.N. (2006) 16 NWLR (PT. 1004) 1 AT 75, NICON INSURANCE PLC. (2000) NWLR [sic] (PT. 677)187, AGBO V. STATE (2006)6 NWLR (PT. 977) 545.
(f) A public servant is entitled to enforce his fundamental rights to fair hearing as other Nigerians if threatened or breached in a purported disciplinary process in any Court authorized by the law. SEE FMC, IDO-EKITI & ORS V. ALABI (2011) 31 NWLR (PT.89) 160 CA.
(g) The Court did not advert its mind to the averments of paragraphs 6, 7, 8, 9, 18, 22, 25, 26, 35, 36, 37, 40, 41, 43, 44, 45, 50, 52, 58 and 60 of affidavit in support and paragraph 15, 21, 25, 26 and 27 of the further and better affidavit filed and dated 28th March 2019 in support of the originating process. The trial Court made no comment about these paragraphs thereby occasioned miscarriage of justice.
Ground Three:
The learned trial Judge erred or misconceived the law when he struck out all pending applications before the Court including the application to hear contempt proceeding against parties cited for contempt in the matter thereby occasioning miscarriage of justice.
Particular of Error:
a. Hearing of preliminary objection and substantive application must be heard together. Pending applications that arose from the substantive application must be heard with the substantive application pursuant to Order 2 Rule 6 of the Fundamental Rights (Enforcement Procedures) Rules ..
b. Contempt proceedings is sui generis and separate trial. The Honourable trial Court had jurisdiction to hear it as it was ripe for hearing.
c. The contempt was committed in the face of the Court by the disobedience of the respondents to maintain the status quo ante bellum as ordered by the Court.
d. The Applicant did not abandon any of his application but was refused to be heard by the Court in the haste to decline jurisdiction.
e. The order to maintain status quo ante belum [sic] was breached by the defendants and parties cited and brought to the knowledge of the Court that chose to ignore it and struck out the motions thereby occasioning miscarriage of justice.
The breach of the doctrine of lis pendis and the defendants resorting to self-help in dismissing the applicant from his employment when the application to forestall such was pending is not strictly an employment issue. The doctrine of Lis pendis finds expression in the assertion that it prevents any transfer of any right or taking of any step capable of foisting a stage of helplessness and/or hopelessness on the parties or the Court during the pendency in Court of an action and even after it as foisted on the applicant as in this case. See Amaechi v. INEC NSCQR 33 vol.3 (pt. 3) @ 570, Osagie v. Oyeyinka (1987) 3 NWLR (pt.59) 144, Ojukwu v. Lagos State Govt. (1986) 3 NWLR (pt. 26) 39
Ground 4.
The written address and counter affidavit in this matter were incompetent as they were filed outside the mandatory 5 days upon the service of the originating process and without the leave of the Court and ought to be discountenanced or struck out.
Particulars of Error:
a. The preliminary objection was filed out of time
b. The written address and counter affidavit were filed out of time without the leave of the Court.
c. The learned trial Court relied on the deposition in the counter affidavit to come to the wrong conclusion that this matter was principally labour related matter.
d. The respondent needed to seek the leave of the Court to regularizes [sic] these processes but did not.
e. The reference to the existence of such incompetent process led to a travesty of justice”.

The law is settled beyond peradventure that grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. Grounds of appeal are not formulated in nubibus. They must be terra firma, id est, arise from the judgment. An Appellant is not permitted to create a bogus decision by the distortion of the decision appealed against in framing or formulating his grounds of appeal. A ground of appeal must not only connect with and relate to the decision appealed against; it must also be relevant. Any complaint that does not relate to the decision appealed against is irrelevant and incompetent especially as a ground of appeal raised against a phantom or a non-existent decision is incompetent. See SARAKI vs. KOTOYE (1992) LPELR (3016) 1 at 23-24, OLEKSANDR vs. LONESTAR DRILLING CO. LTD (2015) LPELR (24614) 1 at 70 and MEKWUNYE vs. EMIRATES AIRLINES (2019) LPELR (46553) 1 at 5-6.
In aliis verbis, there cannot be an appeal against what was not decided by a Court. Where the factual basis for attacking a judgment is false or non-existent, the ground of appeal founded on the fictitious or misleading premise is incompetent and so also is the issue distilled therefrom. Put differently, a ground of appeal that is not founded on the decision appealed against but which is based on an erroneous impression of the judgment is incompetent; so also any issue distilled therefrom. In ATOYEBI vs. GOVT OF OYO STATE (1994) 5 NWLR (PT 344) 290 at 305, Iguh, JSC observed as follows:
“An appeal presupposes the existence of some decision which is appealed against on a given point or points … The appellate jurisdiction of this Court, inter alia, is to review the decisions and/or judgments … if an issue neither arose nor called for the determination of the Court … which therefore, did not consider the issues … such an issue may not form the basis of an appeal … and a purported appeal to this Court on such an issue will be incompetent and may be struck out”.
A ground of appeal must flow from, arise from, or relate to the decision appealed against, especially the ratio decidendi. Where such is not the case, the ground and any issue raised from it cannot be legitimately entertained by the Court. See ORGAN vs. NLNG LTD (2013) 16 NWLR (PT 1381) 506 at 532-533, OLONADE vs. SOWEMIMO (2014) 4 NWLR (PT 1428) 472 at 491 and SPLINTERS NIG LTD vs. OASIS FINANCE LTD (2013) 18 NWLR (PT 1383) 188 at 272.

​Let me restate that the lower Court in adherence to the stipulations of Order VIII Rules 4, 5 and 6 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, heard the Respondents’ preliminary objection with the substantive application. Having upheld the preliminary objection it struck out the action without any consideration of the merits of the application for the enforcement of fundamental rights. The provision of Order VIII Rule 4 of the Fundamental Rights (Enforcement Procedure) Rules 2009 is clear, and it only mandates the Court to hear the preliminary objection with the substantive application. It does not provide that all pending applications should be heard with the substantive application. The ratio decidendi of the lower Court as evident from pages 310-311 of the Records is that the alleged breach of the Appellant’s fundamental rights is not the main claim, but only ancillary or subsidiary to the main claim. 

The settled state of the law is that it is this ratio decidendi that can be challenged by grounds of appeal. Any ground of appeal that does not challenge the ratio decidendi is incompetent and irrelevant along with the issue distilled from the ground. See IKEM vs. EZIANYA (2002) 4 NWLR (PT 757) 245 at 261, MERCANTILE BANK OF NIG PLC vs. NWOBODO (2005) 14 NWLR (PT 945) 379 or (2005) LPELR (1860) 1 at 8-9 and SANMI vs. THE STATE (2019) LPELR (47418) 1 at 4-5.

​I have already reproduced the Appellant’s grounds of appeal. The lower Court did not decide the merits of the substantive application for enforcement of fundamental rights, so any admissions or deficiencies in the counter affidavit filed by the Respondent in opposition to the substantive application for enforcement of fundamental rights, which are the complaints in grounds one and four of the Appellant’s Amended Notice of Appeal do not arise from the ratio decidendi in the decision appealed against. In the same vein, the complaint in ground three as to whether the lower Court ought to have heard the application for contempt proceedings does not arise from the ratio decidendi of the decision which, I iterate, is that the alleged breach of the Appellant’s fundamental rights is not the main claim but only ancillary and therefore the action cannot be maintained under the specialised procedure for enforcement of fundamental rights. Besides, the ruling, the fulcrum of the complaint in the said ground three was delivered by the lower Court on 3rd July 2020 (pages 283-284 of Records). This appeal is against the judgment of 8th July 2020. Accordingly, the said grounds one, three and four and the issues distilled therefrom are incompetent and irrelevant and would play no part in the resolution of this appeal. See OBA vs. EGBERONGBE (1999) LPELR (2146) 1 at 5-6, OKAFOR vs. ABUMOFUANI (2016) LPELR (40299) 1 at 15 and ZEDAKOJI vs. ALOHUNTADE (2022) LPELR (56416) 1 at 10.

The issue of the competence and relevance of the grounds of appeal and whether they are a challenge to the ratio decidendi of the decision appealed against has been raised suo motu by the Court. It is hornbook law that a Court should not raise an issue suo motu and unilaterally resolve it without hearing the parties; particularly the party that may be adversely affected by the issue raised: OSHODI vs. EYIFUNMI (2000) 13 NWLR (PT 684) 298 at 332, MOJEKWU vs. IWUCHUKWU (2004) LPELR (19030) 1 at 25 and LEADERS & COMPANY LTD vs. BAMAIYI (2010) LPELR (1771) 1 at 12. However, the need to hear parties on an issue raised suo motu is not imperative where the issue raised suo motu goes to the jurisdiction of the Court. See OMOKUWAJO vs. FRN (2013) 9 NWLR (PT 1359) 300 at 332 or (2013) LPELR (20184) 1 at 37-38, IMAH vs. OKOGBE (1993) 9 NWLR (PT 316) 159 at 178, OLUTOLA vs. UNIVERSITY OF ILORIN ​ (2005) ALL FWLR (PT 245) 1154 and OGAR vs. IGBE (2019) LPELR (48998) 1 at 19-21.
The issue of competence and relevance of grounds of appeal is a question of jurisdiction as it borders on competence of the Court to adjudicate based on whether there has been due process of law and whether a feature exists which prevents the Court from exercising jurisdiction: MADUKOLU vs. NKEMDILIM (1962) ALL NLR 587 at 595. The Court does not have jurisdiction to entertain appeals and issues predicated on incompetent and irrelevant grounds of appeal. See BUZU vs. GARABI (2000) LPELR (10692) 1 at 19, AMADI vs. NWOSU (2003) LPELR (12619) 1 at 4-5 and WILLIAMS vs. ADEBAYO (2012) LPELR (7940) 1 at 15. Being an issue of jurisdiction, it is in accord with the prescriptions of the law and decided cases that the same can be raised and decided suo motu without hearing the parties: OMOKUWAJO vs. FRN (supra) and OGAR vs. IGBE (supra). 

In the light of the foregoing, it is on the basis of the sole issue crafted by the Respondent that I will be considering the submissions of learned counsel, as the said submissions relate to the ratio decidendi of the decision of the lower Court, and then resolve this appeal.

ISSUE FOR DETERMINATION
Whether the trial Court possessed the requisite jurisdiction based on the reliefs sought by the Appellant?

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that by Section 46 (3) of the 1999 Constitution as amended, an action for the enforcement of fundamental rights can be commenced in a High Court in the State where the breach occurs or is likely to occur. It was asserted that the right to fair hearing, the right to work under equitable and satisfactory conditions, as well as the enjoyment of the rights and freedom without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political, or any other opinion, national and social origin, fortune, birth or other status; are enforceable by an action before the Federal High Court.

​It was stated that the rights sought to be enforced are the principal claims as evident from relief 5 and ground 3 (f) in support thereof at pages 5 and 8 of the Records. It was opined that the lower Court did not advert its mind to the weighty depositions on the breach of the letters and spirit of Articles 2 and 15 of the African Charter on Human and Peoples’ Rights and the right to work under equitable and satisfactory conditions. It was posited that relief 1 and ground 3 (a) on which it is predicated, are on breach of fair hearing arising from a fundamental failure in disciplinary process and was one of the main reliefs sought in the action. It was therefore maintained that the case of TUKUR vs. GOVERNOR OF GONGOLA STATE (1989) 3 NSCC 225 relied upon by the lower Court was inapplicable.

It was further submitted that the principal claim of the Appellant are:
1. The enforcement of his fundamental rights to fair hearing against a kangaroo disciplinary and incompetent panel;
2. Enforcement of his fundamental and human rights to freedom from discrimination based on the Appellant’s place of birth and perceived political opinion; and
3. Fundamental and human right to work under equitable and satisfactory conditions.

The lower Court, it was maintained, had the jurisdiction to enforce the fundamental rights vide MINISTER OF INTERNAL AFFAIRS vs. SHUGABA (1982) 3 NCLR 915.

​Still in argument, it was stated that the main plank of the reliefs claimed is the failure to abide by the stipulated process leading to the denial of Appellant’s promotion which is enforceable under the special and peculiar action for enforcement of fundamental rights. The case of ABIA STATE UNIVERSITY UTURU vs. ANYAIBE (1996) 1 NWLR (PT 439) 646 was referred to. It was posited that Courts are liberal in interpretation of fundamental rights provisions in deciding which claim is principal and which is ancillary. The case of GARBA vs. UNIVERSITY OF MAIDUGURI (1986) 2 NWLR (PT 18) 559 was relied upon.

The Appellant contended that the principle of principal and ancillary reliefs were mere postulations and that a breach of one fundamental right can suffice as principal claim while the rest are ancillary. It was asserted that a Court that has jurisdiction to entertain even one fundamental right breach arising from the matter would extend its jurisdiction to the ancillary claims. The Court was conclusively urged to allow the appeal and rehear the matter as if it were instituted in this Court as a Court of first instance.

​SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondents submit that the Appellant’s entire claim is tied to the terms of his employment and the circumstances that led to the non-inclusion of his name in the 1st Respondent’s promotion exercise. It was stated that when the jurisdiction of a Court is challenged, it is the plaintiff’s pleadings that is considered; and that in this action for enforcement of fundamental rights, it is only the statement of facts and grounds and verifying affidavit of the Appellant that will be considered. The case of NNONYE vs. ANYICHIE (2005) ALL FWLER (PT 253) 605, NDIC vs. CBN (2002) FWLR (PT 99) 1021, TUKUR vs. GOVT OF GONGOLA STATE (1989) ALL NLR 579 and INAKOJU vs. ADELEKE (2007) ALL FWLR (PT 353) at 87 were cited in support.

​It was asserted that at a cursory look at the Appellant’s processes shows that the subject matter of the action relates to the alleged wrongful process of disciplining the Appellant as a staff of the 1st Respondent, alleged ill-treatment of the Appellant by the 2nd Respondent and the denial of promotion for the Appellant. It was maintained that the lower Court could not have entertained or determined the Appellant’s action without looking into his terms of employment, the appropriate committee to sit on his disciplinary matter and the issue of his promotion and conditions of service of the 1st Respondent.

It was opined that the acts complained of by the Appellant do not fall within the ambit of Chapter IV of the 1999 Constitution as amended, but falls squarely within the purview of matters arising from the workplace as enumerated under Section 254C of the 1999 Constitution as amended and which is cognisable by the National Industrial Court. The Respondents posit that where in an action for enforcement of fundamental rights, the principal or main claim is not in respect of a breach of Chapter IV of the Constitution, but merely incidental or ancillary to it; then the Court will lack jurisdiction and the proper order will be to strike out the case. The cases of WAEC vs. AKINKUNMI (2008) 9 NWLR (PT 1091) 171, EGBUONU vs. BRTC (1997) 12 NWLR (PT 531) 29, TUKUR vs. GOVT OF TARABA STATE (1997) 6 NWLR (PT 510) 549 and FBN PLC vs. A-G FEDERATION (2014) 12 NWLR (PT 1422) 470 were called in aid.

RESOLUTION
The facts of this matter are not convoluted. The facts are amenable to concision and make for ease of appreciation. At all times material to this action, the Appellant was an employee of the 1st Respondent. In the course of his employment, the Appellant was seconded to the Special Presidential Investigation Panel, Abuja. He was subsequently recalled from the secondment, on account of a disciplinary committee which was set up to investigate the allegations in a query that had been issued to the Appellant. The Appellant contends that the 2nd Respondent was the one instigating his travails based on perceived differences in state of origin and political conviction. On account of the disciplinary committee set up to investigate the Appellant, he was excluded from the promotion exercise for staff of the 1st Respondent. The Appellant contending that there had been several breaches of the 1st Respondent’s conditions of service instituted the proceedings at the lower Court, claiming the reliefs which I have already set out.

​It has become abecedarian law as laid down in a plethora of decisions by the apex Court that when an application is brought under the specialised procedure for the enforcement of fundamental rights, a condition precedent to the exercise of jurisdiction is that the enforcement of fundamental rights or the securing of the enforcement thereof should be the main claim and not an accessory claim. Where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the Court cannot be properly exercised as the action will be incompetent.
The position of the law is that for a claim to qualify as falling under fundamental rights, it must be clear that the principal relief sought is for the enforcement or securing the enforcement of a fundamental right and not, from the nature of the claim, to redress a grievance that is ancillary to the principal relief which itself is not, ipso facto, a claim for the enforcement of fundamental right. Therefore, where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it will be incompetent to constitute the claim as one for the enforcement of a fundamental right. The authorities in this regard are legion. I will refer to a few. See TUKUR vs. GOVT OF TARABA STATE (supra), SEA TRUCKS (NIG) LTD vs. ANIGBORO ​ (2001) (PT 696) 159, FRN vs. IFEGWU (2003) 15 NWLR (PT 842) 113 at 180 or (2003) LPELR (3173) 1 at 20-21, ABDULHAMID vs. AKAR (2006) LPELR (24) 1 at 24 and GAFAR vs. GOVT OF KWARA STATE (2007) LPELR (8073) 1 at 21-22.
In order to ascertain if the enforcement of fundamental right is the main claim, the proper approach is to examine the reliefs sought by the applicant at nisi prius, the grounds for seeking the reliefs and the facts relied upon to support the reliefs sought. Where the reliefs sought, the grounds upon which they are sought together with the facts relied upon in support of the reliefs, disclose that breach of fundamental right is the main plank upon which the reliefs are sought, then redress may properly be sought under the procedure for the enforcement of fundamental rights. However, where such an examination discloses that the alleged breach is incidental or ancillary to the main complaint, then it will be incompetent to proceed under the procedure for the enforcement of fundamental rights. See WAEC vs. ADEYANJU (2008) LPELR (3467) 1 at 24-25, UNILORIN vs. OLUWADARE (2006) LPELR (3417) 1 at 14-15 and EMEKA vs. OKOROAFOR ​(2017) LPELR (41738) 1 at 67-73.

​The lower Court adopted the proper approach by examining the Appellant’s process and it reasoned and held as follows at pages 309-310 of the Records:
“From the grounds, the affidavit in support and the exhibits attached, the alleged breach of the fundamental rights of the applicant as I can observe, flow directly from the query issued to the applicant, he’s being denied participation in the promotion examination, he’s being transferred from the 1st respondent to the Special Presidential Investigation Panel and the purported interference with the life and employment of the applicant (see paragraph 60) of the affidavit in support. The alleged breach of the fundamental rights of the applicant from the briefly stated observations and the reliefs sought shows that the breach is only ancillary or subsidiary to the main claim and reliefs. It is the law as I have stated earlier that a party seeking relief under Section 46(1) of the 1999 Constitution and Order ll Rules 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 must ensure that the main relief and consequential reliefs point directly to a fundamental right under Chapter IV of the 1999 Constitution and a clear deprivation of same by the other party being sued.”

The lower Court then conclusively held as follows at page 311 of the Records:
“The alleged breach of the fundamental rights of the applicant is not the main claim from the totality of the processes before me. I therefore find merit in the preliminary objection and I uphold same. I state further before I conclude that the matter before this Court was brought by way of fundamental rights procedure, which procedure I have held incompetent. … There (is) nothing more to do than to strike out the suit as filed.“

The Appellant in faulting the decision of the lower Court made the following submissions at pages 14 and 16 of the Appellant’s brief. At page 14, he contended:
“In the circumstances stated above, we urge my lords to find and hold that the principal claims of the Appellant (in) this matter are: 1. The enforcement of his fundamental rights to fair hearing against a kangaroo disciplinary and incompetent panel, (2). Enforcement of his fundamental and human rights to freedom from discrimination based on the applicant’s place of birth and perceived political opinion. (3) fundamental and human right to work under equitable and satisfactory conditions.“

Continuing at page 16 of his brief, the Appellant argued:
“It was also wrong for the learned trial Judge to hold that the principal reliefs were labour related while the ancillary relief was for the enforcement of fundamental right therefore the Court lacked jurisdiction. The principle of principal and ancillary relief reliefs are mere postulations. It is the applicant that should know where the shoe pinches. We humbly submit that a breach of one fundamental rights can suffice as principal claim while the rest would be ancillary. The Court that has jurisdiction to entertain even one fundamental right breach arising from the matter would extend its jurisdiction to the ancillary claims. Thus the trial Court that has jurisdiction to try even those labour related claims because, the right to fair hearing which is one principal claim has been breached. In this instant case, the fundamental right to freedom from discrimination based on place of birth and political opinion was also breached. Similarly, the fundamental right to work under equitable and satisfactory condition was breached and continued to be breached by the respondents in the circumstance of this case.“

​I am not enthralled by the Appellant’s submissions. Rather than serve to fault the decision of the lower Court, it affirms that the main complaint is about the Appellant having been dealt a bad hand in what transpired at his workplace. Furthermore, I have insightfully considered the thirteen reliefs claimed by the Appellant, the grounds upon which the application is brought (see pages 5-14 of the Records) and the affidavits filed in support of the application; I am not in any doubt whatsoever that the lower Court got it right and was on a strong wicket when it held that the reliefs sought show that the breach is only ancillary or subsidiary to the main claim and reliefs. The main plank of the Appellant’s action centres principally on events at his place of work, the setting up of a disciplinary committee, and his being denied promotion, all at the perceived instigation of the 2nd Respondent. 

The complaint is chiefly with regard to his contract of employment and employment relationship on account of which he complains that the conditions of service had not been adhered to in the actions taken in the setting up of the disciplinary committee and denying him of promotion. This being so, the action is not cognisable under the specialised procedure for enforcement of fundamental rights as the main or principal relief is not for enforcement of fundamental rights. See EGBUONU vs. BRTC (1997) 12 NWLR (PT 531) 29, JACK vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2004) LPELR (1587) 1 at 18 and NWACHUKWU vs. NWACHUKWU (2018) LPELR (44696) 1 at 28.

The concatenation and conflating of the foregoing is that the decision of the lower Court cannot be faulted. The lower Court having reached the correct decision, this appeal must perforce fail for being bereft of merit. The appeal is accordingly dismissed. The decision of the lower Court, Taiwo, J., delivered on 8th July 2020 is hereby affirmed. The parties are to bear their respective costs of this appeal.

HARUNA SIMON TSAMMANI, J.C.A.: I am in total agreement with my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA on the judgment just delivered.

It is now firmly established that for an application for the enforcement of any of the fundamental rights under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to be sustained, the claim of the applicant must be the principal or main relief sought. Therefore, where the claim or relief for enforcement of fundamental right is merely residual, ancillary or subordinated to a principal claim which is not for the enforcement of a Fundamental Right, the claim cannot be sustained under the Fundamental Rights (Enforcement) Procedure, Rules, 2009. In such a circumstance, the application will be struck out. See Nwachukwu v. Nwachukwu (2018) 17 NWLR (pt. 1648) 357; Emeka v. Okoroafor & Ors (2017) LPELR-41738 (SC) and Tukur v. Government of Gongola State (1989) 4 NWLR (pt. 117) 517 at 548. Thus, in Ifeanyi Ihim v. Cyril Maduagwu & Anor (2021) LPELR-53906 (SC), the Supreme Court, per Abba Aji, JSC held that:
“For a matter to be instituted under the Fundamental Rights (Enforcement Procedure) Rules, as constitutionally guaranteed right under Chapter IV of the Constitution of the Federal Republic of Nigeria,1999 (as amended), ​the enforcement of such right(s) must be the main/substantive claim before the Court, not ancillary. “

It is for the above reason(s) and the detailed reasons ably espoused in the lead judgment, that I agreed that this appeal is without merit. It is hereby dismissed. I abide by the consequential order made in the lead judgment.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA.

​I equally agree with the reasoning and the conclusion that the appeal lacks merit and it is accordingly dismissed.

Appearances:

Chief Nkereuwem Akpan For Appellant(s)

Henry Emore, Esq. For Respondent(s)