Chief (Hon) Nkwo Nnabuchi & Ors v. Chief C. Ezenagu & Ors (2025)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

HABEEB ADEWALE OLUMUYIWA ABIRU, JSC (Delivering the leading judgment)

The appellants commenced the action leading up to this appeal in the Federal High Court sitting in Enugu under the Fundamental Rights Enforcement Procedure Rules and they prayed for:

i. Enforcement of the appellants’ fundamental rights to human dignity, liberty and movement as guaranteed under sections 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria.

ii. Order on the seventh to the fourteenth respondents and their servants, agents and siblings not to cause the arrest and detention of the appellants any longer with the assistance of the first to the sixth respondents or their agents and or servants.

iii. N999 Million being general damages for constant and prolonged detention without justification contrary to the Constitution of the Federal Republic of Nigeria 1999.

iv. Perpetual injunction restraining the first to the six respondents, their agents, servants, proxies, surrogates and siblings from further arresting and detaining the appellants nor causing the arrest and/or detention of the appellants unconstitutionally.

The appellants filed necessary processes in support of their claims. The counsel who commenced the action on behalf of the appellants was one Chief E. C. G. Okechukwu. At a point in the proceedings, the firm of J. O. N. Ikeyi, Esq. was instructed by the appellants to take over the prosecution of the matter.

The new counsel retrieved the case file from the former counsel, he informed the trial court that upon going through the processes filed by the former counsel, he was desirous of discontinuing the action because he was of the view that the trial court had no jurisdiction to entertain the action.

Counsel to the second set of respondents agreed with Counsel to the appellants that the matter was incompetent ab initio and he applied that same be dismissed with costs.

The new counsel to the appellant contended against the order of dismissal and cost sought and stated that it would amount to the court visiting the mistake of counsel on the litigant. The trial court proceeded to dismiss the suit and it awarded costs in the sum of N10,000.00. This was on the 8th of June, 2004.

The appellants were dissatisfied with the order of dismissal and award of costs and they caused their counsel to file a notice of appeal dated 6th of July, 2004 and containing three grounds of appeal against them. The Court of Appeal sitting in its Enugu Judicial Division heard the matter on the merits and it delivered a judgment wherein it deliberated thus:

“Under issue No 1 it is the contention of the appellants that the substantive matter for which the learned trial Judge granted the appellants leave was not heard at all on the merits before it was dismissed by the court below. The case had only been fixed for mention and not for hearing. Their submission is that it is perverse to dismiss a case without hearing the parties at all. I think I must agree with all the arguments of the learned counsel for the appellant in this regard. The matter was not heard on merit and as such the proper order to make is one striking out same, not dismissing it. Such a dismissal as in this case denies the appellants any further right in the case before the court below or any other court or proper forum of coordinate jurisdiction…. The argument of the respondents counsel that the learned trial Judge was right to dismiss the action as there should be an end to litigation is totally wrong and unacceptable in the circumstances of this case.

It is to be noted that the application to withdraw the matter and the order of the trial court of dismissal of the matter are all based on the misconception that the Federal High Court lacks jurisdiction on fundamental rights. The position has been cleared by the Supreme Court in Jack v University of Maiduguri… that both the State and Federal High Court have concurrent jurisdiction on fundamental (human) rights irrespective of the parties. However, the main issue is whether the order to be made out where a court lacks jurisdiction is that of dismissal or striking out. I have made it clear that the order should have been that of striking out. This has subsumed the 2nd issue of the order of NW,000.00 as costs. I find merit in this appeal. It is allowed. Therefore, I set aside the order of dismissal of the court below. I return the order of striking out the matter. This has affected the order for costs of the trial court and therefore it is set aside as made in consideration of wrongful order of dismissal. However, I make no order as to costs for striking out the matter before the trial court. I also make no order of costs as to the appeal. The parties shall bear their costs.

The appellants were not happy with the comment of the lower court that “the application to withdraw the matter and the order of the trial court of dismissal of the matter are all based on the misconception that the Federal High Court lacks jurisdiction on fundamental rights” and “that both the State and Federal High Court have concurrent jurisdiction on fundamental (human) rights irrespective of the parties.” They caused a notice of appeal dated the 19th of May, 2006 and containing one ground of appeal to be filed against it to this court. In arguing the appeal, counsel to the appellants filed a brief of arguments dated the 5th of June, 2007 on the 8th of June, 2007. Counsel to the first and second respondents, amongst the first set of respondents, filed a brief of arguments dated the 31st of October, 2024 on the same date and the brief of arguments was deemed properly filed and served on the 18th of November, 2024. Counsel to the third and fourth respondents, amongst the first set of respondents, filed a brief of arguments also dated the 31st of October, 2024 on the same date and the brief of arguments was similarly deemed properly filed and served on the 18th of November, 2024. Counsel to the second set of respondents filed a brief of arguments dated the 26th of February, 2009 on the 27th of February, 2009. At the hearing of the appeal, counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments.