Alhaji Sheu Abdul Gafar V The Government Of Kwara State & 2 Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD 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.”

(Appellant approached the) Federal High Court Ilorin under section 42(1) of the 1979 constitution and Order 2(1) and (6) of the Fundamental Rights (Enforcement procedure) Rules, 1979 by filing an Ex-parte application dated 29-5-1995 for leave to enforce his rights. Leave was granted by the trial on 5-6-1995 while the main application notice was fixed for hearing on 19-6-1995. However, the respondents on being served with the appellant’s application 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(I)(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 respondent 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 Abullahi 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 against the respondents, came to the conclusion thus at page 165-166 of the record:

“in this appeal the principle 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 his 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 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 has no jurisdiction to entertain the case of the appellant which was principally concerned with the complaint of natural justice.

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

(b) Whether from the totality of the facts it could be said that the 2nd and 3rd respondents were not agents of the 1st respondent, in other words whether there was true federalism in Nigeria at all times material.” The respondents in their brief of argument also identified only one issue for determination as follows:

“Whether having regard to the reliefs sought by the appellant the lower court was right to have held that the trial Federal High Court lacks the necessary jurisdictional competence to entertain the appellant’s case.”

Taking into consideration that this appeal arose from a ruling on the preliminary objection challenging the jurisdiction of the trial Federal High Court to entertain the action of the appellant having regard to the circumstance of the case and the relief claimed therein, the only real issue for determination in this appeal is, which of the two Courts below is right – the Federal High Court which said it has jurisdiction to hear the action or the Court of Appeal which ruled that the trial court has no jurisdiction.

However, before proceeding to resolve this issue, it will be helpful to recount the facts that forced the appellant to run to the Federal High Court for remedy arising from the dispute with the respondent. The appellant was in the service of the Government of Kwara State, the 1st respondent, as secretary to the Government. While he was in the service, the Federal Government made grants to the Kwara State Government in the sum of N76 Million and N120 Million respectively to tackle ecological problems in the State as well as for the expansion of the Ilorin Water Scheme. The handling and use of these grants was subject of a commission of inquiry set up by the 1st respondent, Kwara State Government. The first commission of inquiry was set up in April 1994 headed by Hon. Justice Ibiwoye. This commission concluded its work but could not submit its report to the appointing authority. This led to the setting up of another commission of inquiry under Hon. Justice Salami to investigate the handling and use of the grants. The Salami commission of inquiry succeeded in completing its assignment and submitted its report to the Government. The Government considered the report and came out with a white paper on the report, which indicted the appellant and directed him to pay the sum of N2 million to the Kwara State Government, the 1st respondent or on the failure to do so forfeit his personal assets.