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.

Dissatisfied with the directive in the white paper, the appellant decided to challenge it in the Ilorin Federal High Court where he filed his action under the Fundamental Rights (Enforcement Procedure) Rules 1979, for reduress asking for a total of 10 reliefs arising from the decision of the 1st respondent in the white paper. The lone issue on jurisdiction formulated in the appellant’s brief is virtually the same as that formulated in the respondents’ brief. In support of the issue, learned appellant’s counsel after quoting the reliefs sought by the appellant in his action, pointed out that the claims of the appellant were mainly on the enforcement of his threatened fundamental rights. Appellant maintained that his complaint in the action is that the respondents or their agents, lacked the vires to try him for criminal offences except through the observance of due process, lacked the power to find him guilty of any criminal offence without a proper or any trial at all; issue a white paper purporting to accept the finding of guilt against him without affording him any hearing on the said report, order the forfeiture of his assets without any hearing and be the complainants, the prosecutors and judge all rolled into one in the matter. Relying on the cases of Adeyemi v. Opeyori (1976) 9-10 SC 31 at 51; A.G. Kwara State v. Oluwale (1993) 1 NWLR (Pt.272) 645 at 663 and Anya v. Iyayi (1993) 7 NWLR (Pt.305) 645 at 663-664, learned appellant’s counsel argued that since it is the claim of the plaintiff that determines the jurisdiction of the trial court and not the interpretation placed on the claim by the opponent, the claim of the appellant in the present case is within the jurisdiction of the trial court as found by that court having regard to section 42 of the 1979 constitution which gave the trial Federal High Court and State High Court concurrent jurisdiction on matters concerning Fundamental Rights. Commending the trial court for jealously guarding its jurisdiction under the Federal High Court (Amendment) Decree No.60 of 1991 and section 230(31)(q)(r) and (s) of the 1979 constitution as amended by Decree 107 of 1993, learned counsel maintained that the trial court has the jurisdiction to entertain the case of the appellant.

The cases of Ekekeugbo v. Fiberesim (1994) 3 NWLR (Pt.335) 707 at 726; Okafor v. A.G.Anambra State (1991) 6 NWLR (Pt200) 659 at 679 and Nalsa Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt.212) 652 at 677 were cited in support of this argument by the learned counsel for the appellant who urged this court to allow the appeal. For the respondents, their learned counsel opened their argument by observing that parties cannot by connivance, acquiescence or collusion confer jurisdiction on a court if the decision in the case of Okolo v. U.B.N. Plc(2004)1 SCNJ 113, (2004) 2 SCM 180 is taken into consideration. Learned counsel further contended that since the report of the commission of inquiry set up by the 1st respondent and the white paper issued from the report forms the bedrock of the appellant’s claim, to which the claim relating to alleged breach of fundamental rights was appended, only the State High Court has jurisdiction to PAGE| 7 entertain the appellant’s action. Relying on the cases of Ibrahim v. Ojomo (2004) 1 SCNJ 309; (2004) SCM, 103 Awuse v. Odili (2004) All FWLR (Pt.212) 1611; Adebusuyi v. Oduyoye (2004) 1 NWLR (Pt.865) 406 and Omoyeni v. Governor Edo State (2004) 5 NWLR (Pt.865) 175. Respondents’ counsel observed that the provisions of section 230(1)(q)(r) and (s) of the 1979 constitution as amended by Decree No.107 of 1993, are quite plain requiring no further interpretation, stressing that these provisions no where conferred jurisdiction on the Federal High Court to entertain the appellant’s action. Concluding his submission on this issue, learned counsel maintained that since the claims of the appellant arose out of the operation of Kwara State Legislation, the commission of inquiry law, which the State High Court can conveniently take together with the complaint on the alleged breach of Fundamental Rights, on the authority of the case of Alh. Unaru Abba Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 547, the trial court lacked jurisdiction to entertain the appellant’s case. Learned counsel therefore urged this court to dismiss the appeal.

The enforcement of fundamental rights under which the appellant brought his action at the Federal High Court is provided for in Chapter 1of the 1979 constitution which was then in force at the time of filing the action. Section 42 thereof confers special jurisdiction on the High Court. This section states:–

“42(1) Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.

(2) Subject to the provision of this constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any rights to which the person who makes the application may be entitled under this Chapter.

(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section.”

It is quite clear from the above provisions of the 1979 constitution that enough provisions have been made in Chapter Ifor the Enforcement of fundamental Rights. By these provisions, a person whose fundamental right is breached, being breached or about to be breached, may apply to a High Court in that State for redress. However by Order 1 Rule 2 of the fundamental Rights (Enforcement procedure) Rules, 1979, made by the Chief Justice of Nigeria under sub-section (3) of section 42 of the 1979 constitution quoted above which came into force on 1-1-1980, defines the word ‘Court ‘ as ‘the Federal High Court or the State High Court’.

By this definition, in all matter dealing with the enforcement of fundamental rights, both the Federal High Court and the High Court of a State within which the violation of these rights have been alleged to occur, have concurrent jurisdiction in such matters. An application may therefore be brought either to the judicial Division of the Federal High Court in the State or the High Court of the State in which the breach occurred, is occurring or about to occur. See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517. Therefore in the instant case, as far as the law is concerned on the complaint of the appellant of an alleged breach of his fundamental right in llorin within Kwara State, the Federal High Court has concurrent jurisdiction within the State High Court to hear and determine the appellant’s complain of any alleged breach of such rights. However, what had arisen in this appeal is whether or not having regard to the reliefs claimed by the appellant in his action at the Federal High Court, that court has jurisdiction to entertain the action by virtue of section 230(1) of the 1979 Constitution as amended by the provisions of Decree No. 107 of 1993.

The appellant, pursuant to the leave granted him on 5-6-I995 by the trial court to enforce his fundamental rights, brought an application to enforce these rights and asked for the following reliefs;

“I. A DECLARATION that the respondents, jointly and severally have no right in law or under the Constitution to try and find the applicant guilty of grave criminal offences without affording the applicant a right to a hearing and without the observance of the applicant’s Constitutional right to a fair hearing and the rules of natural justice and that the purported guilt of the applicant as found by the Justice Issa Ayo Salami Commission of Enquiry (therein after referred to as the Commission) and confirmed in a White Paper issued by the respondent some time in May 1995 is unconstitutional, against the rules of natural justice, against the African Charter of human and, Peoples Rights (Ratification and Enforcement) Act Cap 10, Laws of the Federation of Nigeria 1990 and is therefore null, void and of no effect whatsoever.

2. A DECLARATION that the respondents have no power under the law and Constitution to purport to find the applicant guilty of misappropriation of funds when the respondents are the accusers, the prosecutors and the judges all rolled into one.
3. A DECLARATION that the respondents cannot lawfully order the forfeiture of the property of the applicant or order him to pay money as a reparation for an offence of misappropriation of funds or criminal breach of trust without the observance of the due process and a pronouncement of guilt by a court of competent jurisdiction on the point.
4. A DECLARATION that the purported trial and conviction of the applicant by the respondents and their agents when he was never accused of any offence nor any valid criminal allegation or charges levied against him is unlawful, unconstitutional, illegal, against the rules of natural justice and an affront to all standard of justice and is therefore null and void.
5. A DECLARATION that the applicant as a citizen of Nigeria cannot be made to suffer any disability in his property or person without the observance of due process and observance of his right to fair hearing.
6. A DECLARATION that having regard to the mandatory provisions of section 2 of the Public Officers Protection Act CAP 379 Laws of the Federation 1990, the respon-dents or their agents have no power in law to inquire into investigate or in any other way look into the official actions of the applicant more than 18 months after ceasing to be a public officer in the employment of the respondents.
7. ORDER directing the respondents jointly and severally not to enforce, give effect to, carry out or in any other manner enforce the sanction contained in the White Paper they issued on the purported findings of the Commission.
8. INJUNCTION restraining the respondent, jointly and severally, by themselves, their agents, privies, servants, panel, commission or any other person or body of persons howsoever from implementing, enforcing, carrying out or in any other manner carry into effect the decisions contained in the Paper they issued as it affects the applicant until the determination of this action.
9. INJUNCTION restraining the respondents, jointly and severally, by themselves, their agents, privies, servants, panel. Commi-ssion or any person or body of persons howsoever from taking any further steps that will affect derogate from or in any way hinder the fundamental rights of the applicants to a fair hearing, right of liberty and right against compulsory acquisition of his properties, moveable and immovable, as preserved under the Constitution of the federal Republic of Nigeria 1979 and the African Charter of Human and Peoples rights aforesaid. PAGE| 11 10. Order of this Honourable Court made pursuant to the provisions of Order 1 Rule 2(6) of the funda-mental Rights (Enforcement Procedure) Rules 1979.”

With these reliefs sought by the applicant at the trial court, learned counsel to the appellant strongly argued that quite apart from the concurrent jurisdiction shared by the trial court with the High Court of Kwara State in the reliefs claimed by the appellant under section 42 of the 1979 Constitution, the trial court also has jurisdiction to entertain the appellant’s action by virtue of section 230(l)(t),(q) and (s) of the same 1979 Constitution as amended by Decree No. 107 of 1993 which radically expanded the jurisdiction of the federal High Court. Learned counsel observed that the changes brought about to the jurisdiction of the federal High Court by Decree No. 107 have resulted in making the decision of this court in Tukur v. Government of Gongola State (supra) completely irrelevant to the present case. What this court decided in that case per Obaseki J.SC at pages 546-547 is

“Thus, on the interpretation which I have given, any of the Fundamental Rights guaranteed by the provisions in Chapter Iof the Constitution if threatened or breached by any person in matters in respect of which the Federal High Court has jurisdiction in a State can be enforced and redress given by the federal High Court in that State as such exercise will be within the jurisdiction granted by section 42(2). Since the jurisdiction conferred by section 42(2) of the Constitution is a special jurisdiction and made subject to the provisions of the constitution, the enforcement of the fundamental rights in matters outside the jurisdiction of the Federal High Court is not within and cannot be in the contemplation of the section. If any consideration and determination of the civil rights and obligations in matters outside the jurisdiction of the Federal High Court inextricably involves a consideration and determination of the breach or threatened breach of any of the fundamental rights provisions the exercise of jurisdiction which the Federal High Court does not possess is a nullity. The lack of jurisdiction, inexorably nullifies the proceedings and judgment. It is therefore an exercise in futility.”

The question now is whether the amendment to section 230(1) of the 1979 Constitution by Decree No. 107 of 1993, has altered the law as stated in Tukur v. Government of Gongola State (supra). This amended section 230(1) of the Constitution provides

“230(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from (q) the administration or the manage-ment and control of the Federal Government or of its any agencies: (r) subject to the provision of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies. (s) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies:

Provided that nothing in the provisions of paragraphs (q), (r) and (s) of this sub-section shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages injunction or special performance where the action is based on any enactment, law or equity.”

From the facts of this case which are not at all in dispute and reliefs claimed by the appellant in his application to enforce his fundamental rights at the trial court, are centred on the recommendation of the Justice Issa Ayo Salami Commission of Inquiry established by the Kwara State Government in exercise of its powers under section 2 of the Commission of Inquiry Law of the State. The appellant is not only quarrelling with the Report of the Commission of Inquiry submitted to the Kwara State Government but also with the White Paper issued by that Government towards the implementation of the recommendation of the Commission of Inquiry. For this reason I cannot see how the appellant’s fundamental rights complained of in the present action can be satisfactorily enforced without the determination of the appellant’s main complaint against his indictment by the Report of the Hon. Justice Issa Ayo Salami Commission of inquiry and the 1st respondent’s Government White Paper issued on the report asking the appellant to refund some amount of money or forfeit his assets to the 1st respondent. All these complaints of the appellant have their roots in the lawful exercise of the powers of the 1st respondent as a State Government in the operation of the law applicable in the State. For this reason, it is not possible for these main complaints of the appellant to be brought within the expanded jurisdiction of the Federal High Court under section 230(1) of the 1979 Constitution as amended by Decree No. 107 of 1993. Although one of the reasons given by the learned trial judge in holding that the trial court has jurisdiction to entertain the action of the appellant, was his regarding of the respondents as agencies of the Federal Government within the meaning of paragraphs (q), (r) and (s) of subsection (I) of section 230 of the 1979 Constitution as amended, it is quite clear that the learned trial, judge has no support for this rather strange view under the Constitution or any enactment. With due respect to the learned trial judge, the 1st respondent, kwara State Government which constituted the Commission of Inquiry and issued a White Paper on the report thereof, is not an agency of the Federal Government. For the same reason, the second and third respondents who are operators of the, machinery of the Government of Kwara State, the 1st respondent, cannot be regarded as agents of the Federal Government to justify the trial court assuming jurisdiction to entertain the appellant’s action. Quite contrary to the misconceived views of the learned trial judge and the learned counsel of the appellant on the effect of the expanded jurisdiction of the federal High Court brought about by Decree No. 107 of 1993, that the decision of this court in Tukur v. Government of Gongola State (1989) 4 NWLR (pt. 117) 517 is not relevant to the present case. That decision is indeed very relevant and was rightly in my view, applied by the court below in allowing the respondents appeal, because the trial court has no jurisdiction to entertain the appellant’s action having regard to the nature of the dispute between the parties and the reliefs sought.

I have earlier in this judgment reproduced the 10 reliefs sought by the appellant in his application brought under section 42(1) of the 1979 Constitution and Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979. It is the law as decided by this court in a long line of cases on the subject that when an application is brought under the rule, a condition precedent to the exercise of the court’s 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. That 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 it will be incompetent. See Madukolum & Ors. v. Nkemdilim (1962) 2 SCNLR 341; (1962) I All NLR 587 at 595; Born Radio Television Corporation v. Basil Egbuonu (1907) 12 NWI.K (pt.53 I) 29 and Tukur v. Government of Taraba State (1997) 6 NWLR (pt.510) 549. The law in this respect is also trite that where ancillary or incidental or accessory claim or claims are so inextricably tied to or bound up with the main claims before the court in a suit, a court cannot adjudicate over them where it has no jurisdiction to entertain the main claims if such incidental or ancillary claims cannot be determined without a determination at the same time of the main claims or where the determination of such incidental or ancillary claims must necessarily involve a consideration or determination of the main claims. See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 11 7) 517 at 546-547. In the instant case, it is not possible to determine the appellant’s claim that his fundamental rights have been breached by the respondents without necessarily wading into the indictment of the appellant in the Report of the Commission of Inquiry and the White Paper issued on the report, by the 1st respondent which is the main complaint of the appellant in his action against the respondents as the result of his being asked to refund N2 million or forfeit his personal assets. For this reason, I entirely agree with the court below that the trial Federal High Court lacks jurisdiction to hear and determine the appellant’s action as brought before that court. This being the position, the court below is also right in sending the case to the High Court of Kwara State which has the necessary jurisdiction to hear and determine all the claims of appellant

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SC. 71/2002