Dr. Athanasius E. Boco V. Micheal O. Aluko & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAFAARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Federal High Court, Calabar, in suit No.FHC/C/CS/20/2007 delivered on the 3rd of July, 2008. The appellant as the 1st defendant in the suit filed a motion challenging the jurisdiction of the Court to handle the matter and also to set aside the order made by the Court for the opening up of the shops occupied by the Respondents and sealed up pursuant to the execution of the judgment of Calabar High Court in suit No.C/68/74. The appellant being dissatisfied with the ruling of the Court on 3rd July, 2008, appealed against the said decision.

Before this Court briefs have been filed and exchanged. In the appellant brief of argument the following four issues have been formulated for determination:-

(1) Whether the Federal High Court has jurisdiction to entertain the Respondent’s suit as constituted against the parties sued which complaint borders on the execution of a judgment of a State High Court involving land.

(2) Whether the suit does not constitute an abuse of Court’s process for the Respondents to commence and challenge at the Federal High Court, Calabar the enforcement of the judgment of a State High Court involving land.

(3) Whether the suit does not constitute an abuse of Court’s process for the Respondents to commence and challenge at the Federal High Court, Calabar, the enforcement of the judgment of the Cross River State High Court in suit No.C/68/74 which has not been set aside by any Court of competent jurisdiction.

(4) Whether the commissioner of Police is agent of Federal Government while performing his duties for the state Government so as to make him to be sued at Federal High Court instead of State High Court.

(5) Was it proper for the Court to enforce in its ruling the order made on 13th June, 2007 by the Federal High Court for the opening up of the shops for the Respondents to occupy when the sealing up of the said shops was the enforcement of the judgment of the Cross River State High Court in Suit No.C/68/74.

On the other hand in 1st to 29th Respondent’s Amended Brief of argument the following issues have been formulated for determination.

(1) Whether, judging from the claim of the Respondents and the parties in this case, the Federal High Court has jurisdiction to adjudicate over the matter.

(2) Whether the order of the Court upon the dismissal of the appellant’s application, directing compliance with the interlocutory order of 13th June, 2007 was not within the competence of the Court to make.

It is clear from the issues for determination formulated by both parties the question of jurisdiction of the trial Court has been raised.

It is therefore of importance to consider the issue of jurisdiction of the trial Court.

The appellant in the appellant’s brief of argument has correctly submitted that it is the claim of the plaintiff, now respondent, which determines whether the Court has jurisdiction to entertain the suit or not. Refer to GAFAR VS. GOVERNMENT OF KWARA STATE (2007) ALL FWLR (pt 360) 1414, NONYE VS. ANYICHE (2005) 2 NWLR (pt 910) 623, SC, (2005) ALL FWLR (pt 253) 604 and ARJAY LTD VS. AIRLINE MANAGEMENT SUPPORT LTD (2003) FWLR (pt 156) 945.