Hon. Justice E.i. Isuama V. Governor of Ebonyi State of Nigeria & Ors (2005)

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ADEKEYE, J.C.A.

The appellant/applicant Hon. E.I. Isuama was removed from the office of the Chief Judge of Ebonyi State by the Governor of Ebonyi State by a letter communicated to him on the 13th day of September, 2000. The removal was then supported by more than two-thirds majority of the Ebonyi State House of Assembly members in accordance with the provisions of section 292(1)(a) (ii) of the Constitution of the Federal Republic of Nigeria 1999. At that point in time, the National Judicial Council, a body charged with the responsibility to investigate any complaint or act of grave misconduct against any Judge or justice and make recommendation as deems fit, was taking the necessary steps in respect of the development in Ebonyi State involving their Chief Judge, the applicant. The appellant/applicant headed for the law courts to prevent any abuse of his rights and his removal from office. He sought leave of the Federal High Court Enugu in suit No. FHC/EN/CP/188/2000, pursuant to Order 47 rules 1(1), 3 and 10 of the Federal High Court Rules 2000 to apply for an order of certiorari and prohibition, which leave was granted by that court. He thereafter filed an application before the court for judicial review asking for declaration, damages, certiorari, prohibition, perpetual mandatory injunction and perpetual injunction against the governor of Ebonyi State, Clerk of Ebonyi State House of Assembly, Ebonyi State House of Assembly, Hon. Justice Elechi, Commissioner of Police Ebonyi State Command, Inspector General of Police and The National Judicial Council. The applicant predicated his argument before the court on Article 7(1)(a) of the African Charter on Human and Peoples Rights because his major grouse was that he was removed from office without being granted the opportunity of being heard by his accusers, which was an infringement of his right under the Nigerian Constitution and the African Charter. A preliminary objection was raised to the jurisdiction of the Federal High Court and that names of the 6th and 7th respondents, the Inspector- General of police and the National Judicial Council are struck out. The court dismissed the preliminary objection and found that it had jurisdiction. Being dissatisfied with the ruling, the respondent appealed to this court. The Court of Appeal granted the application to strike out the name of the 6th respondent from the suit, but retained that of the 7th respondent, the National Judicial Council being a necessary party. The appeal was however dismissed, thus confirming the jurisdiction of the Federal High Court but the order was made that the main case be tried by another Judge of the Federal High Court. Vide pages 219-239 of the record. The case was resumed at the Federal High Court before another Judge – Justice A.A.B. Gumel. By that time the applicant had by an order of court granted on the 26th of April, 2004 amended the reliefs sought and the application for judicial review was brought pursuant to Order 47 rule 5 of the Federal High Court (Civil Procedure) Rules, 2000 and Articles 3, 7 and 26 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act, Cap. 10 Laws of the Federation, 1990.

The respondents objected to this action for being incompetent and an abuse of court process. The issue of the jurisdiction of court to entertain the application arose as this was not properly addressed by the Court of Appeal in its judgment. It is the contention of the respondents that the reliefs being sought and the parties before the court do not come under the provisions of section 251(1) of the Constitution affecting the jurisdiction of the Federal High Court.

The 1st and 2nd respondents are State Agencies, while the facts of the case do not disclose any right of action against the 3rd respondent. The reliefs being sought are not predicated on the African Charter on Human and Peoples Rights and are therefore not cognizable before the Federal High Court.

The respondents before the court were reduced to three, the Governor of Ebonyi State, Ebonyi State House of Assembly and the National Judicial Council. The applicant relied upon the Court of Appeal’s decision in Governor of Ebonyi State & Ors. v. Isuama (2004) 6 NWLR (pt. 870) 511 to hold that the issue of jurisdiction cannot be reopened. If the court were to hold that the issue of jurisdiction is not res judicata, the court has ample jurisdiction over the matter. All the respondents have constitutional roles to play in the matter. The Federal High Court in its ruling declined jurisdiction in the matter. It held that the suit ought not to have been brought against the 3rd respondent based on the averments in the affidavit in support of the action. The case was struck out by the court based on the case of NEPA & Ors. v. Edegbero (2002) 18 NWLR (pt. 798) 79 and Arjay Limited v. Airline Management Support Lid. (2003) 2 SCNJ 148; (2003) 7 NWLR (Pt.820) 577.

Being aggrieved by the ruling delivered on the 14th day of July, 2004, the Hon. Justice E.I. Isuama appealed to this court. Processes of appeal were complied with in accordance with the Court of Appeal Rules, 2002. Briefs were filed and exchanged by the parties. At the hearing of the appeal, the appellant relied on his brief filed on 7/12/04 and the reply brief filed on 26/5/05. In the appellant’s brief two issues were settled for determination as follows:

(1) Whether the issue of jurisdiction raised suo motu by the learned trial Judge is not res judicata and if answered in the affirmative, whether the trial Judge could in law sit on appeal over the earlier finding of his learned brother and the Court of Appeal on the same issues and in the same suit after arguments inter parties.

(2) Whether in the circumstance of this case 3rd respondent – National Judicial Council acted as an agency of the 1st respondent or as an agency of the Federation pursuant to section 153 of the Constitution which conferred jurisdiction on the lower court?”

The respondents adopted and relied on the brief filed on 8/5/05 whereupon two issues were formulated as follows:-

(a) Whether res judicata operated in this case to rob the court the jurisdiction to entertain arguments on jurisdiction.

(b) If the answer is in the negative whether as constituted on the date the lower court directed the parties to address it on jurisdiction, the court was right in holding that it had no jurisdiction.

Since the issues raised by the respondents are subsumed in the appellant’s issues, I shall adopt the appellant’s issues for the purpose of this appeal. I also observe that both issues can be argued together.

The appellant argued and submitted that a State High Court though will have jurisdiction over the 1st and 2nd respondents, it definitely will not have over the 3rd respondent to grant order of prohibition, injunction and demand for payment of salaries against it. Where there is total jurisdiction over claims and parties in a matter as against another court with partial jurisdiction over claims and parties, the former with total jurisdiction would be more competent to hear and determine the matter. The learned Judge speculated into the possibilities of suits Nos. AD/90M/2000 and AB/1051/2000 in determining his jurisdiction when no material facts about these suits were placed before him. By considering those suits, the learned trial Judge took extraneous matters into consideration and that affected his decision on the issue of jurisdiction of his court. The appellant urged the court to allow the appeal, and referred to the cases of Brawal Shipping Ltd. v. E.C.S Ltd. (2001) 14 NWLR (Pt. 732) 172; FGN v. Oshiomhole (2004) 3 NWLR (Pt. 860) 305; NEPA v. Edegbero (2002) 18 NWLR (Pt. 798) 79; Unreported case of Olugbani v. Governor of Lagos State suit No. FHC/L/CS/99/2003; Mobil Oil (Nig.) Plc. v. IAL 36 Inc. (2000) 6 NWLR (Pt.659) 146; Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) 1; Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126; Fawehinmi v. Attorney-General of Lagos State No.2 (1989) 3 NWLR (Pt.112) 740; Oshatoba v. Olujitan (2000) 5 NWLR (Pt. 655) 159.

The respondent urged this court to dismiss this appeal as the cause of action upon which the court below initially held it had jurisdiction namely breach of the African Charter on Human and Peoples Rights did not feature in the amended reliefs sought and therefore res judicata does not arise.