Alhaji Sheu Abdul Gafar V. The Government Of Kwara State & Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This appeal against the judgment of the Court of Appeal Kaduna Division of 7-5-1997, arose from the ruling of the Federal High Court Ilorin delivered on 2-8-1995 dismissing a preliminary objection raised challenging its jurisdiction in the following terms-

“1. The court lacks jurisdiction to grant the reliefs being sought by the applicant.”

The appellant who claimed that his fundamental rights had been breached by the respondents, evoked the jurisdiction of the Federal High Court Ilorin under section 42(1) of the 1979 constitution and order 1 rule 2(1) and (6) of the Fundamental Rights (Enforcement Procedure) Rules, 1979 by filing an ex-parte application dated 295-1995 for leave to enforce his rights. Leave was granted by the trial court on 5-6-1995 while the main application on notice was fixed for hearing on 19-6-1995.

However, the respondents on being served with the appellant’s application on notice, promptly filed a notice of preliminary objection challenging the jurisdiction of the trial Federal High Court to entertain the action. Consequently, the parties were duly heard on the preliminary objection on 19-6-1995 and in a considered ruling delivered on 2-8-1995, the learned trial Judge dismissed the respondent’s preliminary objection and held that the trial court has jurisdiction to entertain the action. Part of this ruling at page 71 of the records reads –

“Earlier in this ruling, I found and held that the 1st and 2nd applicants/respondents are agents of the federal government and the 3rd applicant is an agent of the 2nd applicant/respondent. In view of the foregoing, I find and hold that by virtue of section 230(1)(q), (r) & (s) of the 1979 constitution as amended by Decree 107 of 1993, this court has jurisdiction to entertain this action as filed.”

Dissatisfied with this ruling, the respondents then appealed to the Court of Appeal, Kaduna, which after hearing the parties on a number of issues, allowed the appeal after considering the issue of jurisdiction alone. Umaru Abdullahi, JCA (as he then was) in the lead judgment after thoroughly examining the issue of jurisdiction of the trial court having regard to the reliefs claimed by the appellant in his action the respondents, came to the conclusion thus at pages 165-166 of the record:

“In this appeal, the principal reliefs arose from the activities of a commission of inquiry established by Kwara State government under its laws. I cannot find any statutory provisions conferring on the Federal High Court jurisdiction to entertain the reliefs sought by the respondent. I already found that the attempt by the learned trial Judge to expand the jurisdiction of this court to entertain the suit was based on complete misconception. In my view, the correct forum for the respondent to seek his reliefs is the Kwara State High Court. In the circumstances the appeal is allowed. The order of the trial Federal High Court assuming jurisdiction to entertain the suit is hereby set aside.

In its place, an order is hereby made that the matter be transferred to the Kwara State High Court, through

the Chief Judge of Kwara State for assignment.”

The present further appeal to this court by the appellant is against this judgment of the court below.

From the seven grounds of appeal filed by the appellant to question the decision of the Court of Appeal, a single issue for determination was framed in the appellant’s brief thus:

“1. Whether the court below was right having regard to the claims of the appellant, the state of the law and in all the circumstances of the case to have held that the trial court had no jurisdiction to entertain the case of the appellant which was principally concerned with the complaint of lack of fair hearing and the observance of the rule of natural justice.

(a) Whether the doctrine of covering the field was unavailing in the circumstances of the case.