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Volume 1
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Section 42 of the 1979 Constitution on Jurisdiction of the High Court to entertain Fundamental Rights Enforcement Actions – Whether confers parallel jurisdiction on State and Federal High Courts in relation to Fundamental Rights Enforcement Actions - H.R.H. Oboi Ubi UjongUnah v. Mr. Marcus Ukoi more>>
H.R.H. OBOL UBI UJONG UNAH
BARRISTER OBETEN OKORM OBETEN
BARRISTER UTUM UBI ETENG
BARRISTER CLEMENT OJOR
CORNELIUS IKPI EDET (OKPEBIRI)
v.
MR MARCUS UKOI
COURT OF APPEAL CALABAR DIVISION
CA/E/195/98
Dennis Onyejife Edozie, JCA. (Presided and Read the Leading Judgement)
Okechukwu Opene, JCA.
Simeon Osuji Ekpe, JCA.
Thursday, 29th November, 2001
FUNDAMENTAL RIGHTS - Fundamental Rights (Enforcement Procedure) Rules – Ex parte Application for leave of court to enforce fundamental right – Whether court may grant ex parte application without hearing the applicant thereon
FUNDAMENTAL RIGHTS - Fundamental Rights (Enforcement Procedure) Rules – Statements in support of application to enforce fundamental right (Order 2 Rule 2(1)) – Whether applicant may file different statements in support of motion ex parte for leave to enforce fundamental right and the motion on notice
FUNDAMENTAL RIGHTS - Fundamental Rights (Enforcement Procedure) Rules – Order 2 Rule 1(2) which requires that notice of motion for enforcement of fundamental right be entered for hearing within fourteen days of grant of leave to enforce - Whether the time stipulation of fourteen days mandates hearing of the notice of motion or the filing thereof within fourteen days of grant of leave to enforce
CONSTITUTIONAL LAW - Section 42 of the 1979 Constitution on Jurisdiction of the High Court to entertain Fundamental Rights Enforcement Actions - Whether confers parallel jurisdiction on State and Federal High courts in relation to Fundamental Rights Enforcement Actions
Issues for determination:
1. Whether the Federal High Court has jurisdiction to entertain applications for enforcement of fundamental rights based on Reliefs claimed by the respondent/applicant.
2. Whether the conditions precedent for the Federal High Court to assume jurisdiction to hear and determine the motion on notice have been fulfilled.
Facts:
The Respondent trades in fish and drinks at Ugep. In 1996 the Respondent lodged a complaint with the Nigerian Police about threats to his life. Based on the complaint, the Commissioner of Police, Calabar, invited the Traditional Ruler of Ugep, the first Appellant and certain other persons to his (Commissioner's) office, where they were advised to maintian peace. On return from the police station however, the people of Ugep set up a committee consisting 12 persons, including the 2nd to 5th appellants to look into the circumstances of the invitation of their Traditional Ruler by the police. The committee after its deliberations resolved that the Respondent should give a live cow and the sum of N10,000.00 to appease their Traditional Ruler. The Respondent refused to comply with the directive and was consequently declared an enemy. He was stripped of his chieftancy title and the 1st Appellant went around the town with a town crier cursing anyone who would buy the respondent's goods. The Appellants also mobilized their agents to obstruct the Respondent's business. The Respondent then sought leave of the Federal High Court, Calabar to enforce his fundamental right, by a motion ex parte filed on the 16th of December, 1996.
Pursuant to the leave granted on the 15th of January, 1997, the applicant brought a motion on notice dated and filed on the 23rd day of January 1997 praying for a declaration that his right to life, personal liberty, dignity and movement had been violated, and N10,000,000.00 damages. Hearing of the motion on notice was slated for 30th January, 1997, a period of 15 days from the date of the ex parte order. The Appellants filed a counter affidavit denying threats to the Respondent's life or interference with his business. They also objected to the jurisdiction of the court to hear the suit and opposed hearing the application on grounds of non-fulfillment of conditions precedent to the hearing of the application, namely, that the Respondent filed separate statements and affidavits in support of the Motion Ex parte and Motion on Notice. Besides, they contended that the applicant was not in court to move his motion Ex parte and that the hearing of the Motion on Notice after a period of 15 days from the date of the Ex parte order is against the Fundamental Rights Enforcement Procedure Rules. The Federal High Court dismissed these objections and the Appellants appealed to the Court of Appeal.
Held (Unanimously allowing the Appeal):
The Respondent's application for the enforcement of his fundamental rights in terms of the reliefs sought is not cognizable under Chapter 4 of the Constitution to confer jurisdiction on the Federal High Court to entertain the case. The respondent's claims must be founded on jurisdiction expressly conferred on the Federal High Court under section 230(1) of the 1979 Constitution as amended by Decree 107 of 1993 before the Federal High Court can assume jurisdiction.
Details of Principles in the Judgment
1. A Fundamental Rights Application Before the Federal High Court must be Predicated on the Court's Express Jurisdiction
An application for enforcement of fundamental rights in accordance with the reliefs sought is not cognizable before the Federal High Court when the reliefs sought do not touch or arise from matters within the express jurisdiction of the court.[page 448 paras H-I, page 449 para A]
2. Litigant who Files a Motion to Invoke the Discretion of the Court must be at Hand to Move his Motion
It is the settled principle of law that a person who wants to invoke the exercise of the discretion of any court in his favour ought not to only file his motion before the court but also move the motion in court. [page 452 para D]
3. On Whether Applicant in a Fundamental Rights Enforcement Action can use Different Statements in the Ex parte Motion and Motion on Notice:
An application for enforcement of a fundamental right based on two different Statements will be rendered incompetent. Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 1979 is meant to avoid a situation where an applicant obtains leave to seek certain reliefs upon certain grounds only to somersault in the motion on notice with different reliefs based on different grounds. [page 454 paras E-G]
4. Import of “Entering Motion on Notice for Hearing within 14 Days of Grant of Leave to Enforce Fundamental Rights” under the Fundamental Rights (Enforcement Procedure) Rules
Entering a motion on notice for hearing in the context of Order 2 Rule 1(2) of the Rules can only mean the filing of the motion for it to be fixed for hearing and this may only be done after leave to enforce fundamental right has been granted. It is when leave has been granted that the motion is filed and subsequently fixed for hearing by court officials. If the motion on notice is filed in the court registry within 14 days from the date the motion ex parte was granted, that is due compliance with Order 2 Rule 1(2), notwithstanding that the motion on notice is heard after the statutory period of 14 days. [page 458 paras E-G]
Word and Phrases
“Entered for hearing”
“Entered for hearing” can be nothing more than the process whereby the motion or summons is entered in the records of the court.[page 458 para B]
Editor's Note - This judgment expounds on the proper construction to place on the jurisdiction conferred on the Federal High Court to entertain fundamental rights enforcement suits under Section 230 of the 1979 Constitution as amended by Decree 107 of 1993. Although both statutes have now been replaced by section 251 of the 1999 Constitution, the principles of interpretation espoused by the judgment in relation to the repealed statutes are very much apposite when construing the jurisdiction of the Federal High Court under the 1999 Constitution
Nigerian Cases Referred to in the Judgment:
1. Adewoyin v. Adeyeye (1962) SCNLR 310
2. Adeyemi v. Opeyori (1976) 9-10 SC 31
3. African press of Nigeria v. Federal Republic of Nigeria (1985) 1 All NLR 50
4. Agbakoba v. The Director SSS (1994) 6 NWLR (Pt. 351) 457
5. Alhaji Saidu v. Alhaji Abdulahi (1989) 4 NWLR (Pt. 116) 387
6. Alh Umaru Abba Tukur v. Govt of Gongola State (1989) 4 NWLR (Pt. 117) 517
7. Aluminium Manaufacturing Co (Nig) Ltd v. N.P.A. (1987) 1 NSCC. 224
8. A.G. Federation v. Att-Gen Abia State & Ors (2001) 1 NWLR (Pt. 725) 690
9. A.G. Federation v. Ajayi (2000) 12 NWLR (Pt. 682) 509
10. A.G. Lagos State v. Dosumu (1989) 3 NWLR (Pt 111) 552
11. Barclays Bank of Nigeria Ltd v. Central bank of Nigeria (1976) All NLR 409
12. Din v. A.G. Federation (1986) 2 NSCC (Pt. 11) 449
13. Ezeadukwa v. Maduka (1997) 8 NWLR (Pt. 518) 638
14. Ezeokafor v. Ezeilo (1999) 9 NWLR (Pt. 619) 513
15. Ezomo v. A.G Bendel State (1986) 4 NWLR (Pt. 36) 448
16. Faleye & Ors v. Otapo & 2 Ors (1995) 3 NWLR (Pt. 381) 276
17. Izenkwe v. Nnadozie (1953) 14 W.A.C.A. 361
18. Madukolu & Ors v. Nkemdilim (1962) 1 All NLR 587
19. Military Administrator, Benue State v. Abeyilo (2000) F.W.L.R. (Pt 45) 602
20. Mokelu v. Fed Comm for Works and Housing (1976) 3 S.C. (Pt..) 329 or (1976) NSCC
187.
21. National Bank of Nigeria Ltd & Anor v. Shoyoye & Anor (1973) 5 SC 181
22. Nneji v. Chukwu (1980) 3 NWLR (Pt. 21) 181
23. Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 664
24. Nwosu v. Imo State Envi Sanitation Authority (1990) 2 NWLR (Pt. 135) 688
25. Oamen v. Owana (1993) 8 NWLR (Pt. 311) 358
26. Oguche & Ors v. Mba & Ors (1994) 4 NWLR (Pt. 336) 75
27. Ogugu v. State (1994) 9 NWLR (Pt. 366) 1
28. Ogunremi v. Dada (1962) 2 SCNL 417
29. Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt. 2001) 659
30. Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 332
31. Oyakhire v. Jen (2000) F.W.L.R. (Pt 20) 699
32. State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 23
33. Umoh v. Nkah (2000) 3 NWLR (Pt.) 512
34. Western Steel Works v. Steel Workers (1989) 1 NWLR (Pt. 49) 284
Nigerian Laws Referred to in the Judgment:
1. Constitution of the Federal Republic of Nigeria 1979, Sections 30, 31, 32, 38, 42, 230, 277
2. Constitution (Suspension and Modification) Decree No. 107 of 1993
3. Federal High Court Act, Cap 134, LFN 1990, Section 7
4. Federal Revenue Court Act, 1973
Nigerian Rules of Court Referred to in the Judgment:
• Fundamental Rights (Enforcement Procedure) Rules 1979, Order 1 Rule 2(3), Order 2 Rule 2(1), (2) & (4)
Texts Referred to in the Judgment:
• Halsbury's Laws of England (4th Edition)
• Supreme Court Practice 1991
Representation:
1. James Iwara Ofem Esq., for the Appellants
2. B. Olusegun Esq for the Respondent
EDOZIE, JCA (Delivering the Leading Judgment): This interlocutory appeal raises in the main the controversy or vexed question of the power of the Federal High Court to entertain applications for the enforcement of Fundamental Rights under Chapter IV of the 1979 Constitution.
The parties in this appeal are from Ugep in Yakurr Local Government Area of Cross River State. The 1st Appellant is the Traditional Ruler of Ugep and holds the title of Obol Lopon of Ugep.
The Respondent Marcus Okoi is a businessman trading on drinks and fish at Ugep. In 1996, he lodged a complaint to the Nigerian Police Force about threat to his life. In the course of investigation the police invited certain persons including the respondent and 1st appellant herein to the office of Commissioner of Police, Calabar where they were advised to maintain peace.
On return to Ugep, the people of Ugep set up a committee comprising 12 persons of whom, 2nd to 5th appellants were alleged to be members to look into the circumstances of the invitation of their Traditional Ruler by the Commissioner of Police. The Committee after its deliberations resolved that the respondent should, inter alia, give a live cow and the sum of N10,000.00 (Ten Thousand Naira) to appease their traditional ruler, that is the 1st appellant. It is the Respondent's case that as he refused to comply with the committee's recommendation, the appellants declared him an enemy. He was stripped of his chieftaincy title and the 1st appellant went round the town with a town crier cursing anyone who would buy his goods.
The Appellants further mobilised their agents, servants and privies to physically block the respondent's business premises to prevent customers from doing business with him in consequence of which he had lost millions of naira. Based on the foregoing premises, the respondent as Applicant commenced proceedings against the appellants as respondents in the Federal High Court, Calabar in Suit No. FHC/CA/M50/GR by filing on 16th December, 1996 an ex parte application for leave to apply to enforce or secure the enforcement of his Fundamental Rights. Pursuant to the leave granted on the 15th day of January, 1997, by the Federal High Court, the applicant brought a motion on notice dated 23rd day of January 1997 filed on the same note. The application was brought under Order 2 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 1979 and Section 42(1) and (2) of the 1979 Constitution with the following reliefs :-
“1) A declaration that the continued blockage obstruction and / or interference with the applicant's business, movement and life by the respondents, their agents, servants or privies is unlawful, illegal, unconstitutional null and void.
2) An order directing the respondents to unblock or stop interferring with the applicant's business, movement and life forthwith.
3) An order restraining the respondents, their agents, servants or privies from further blocking, obstructing and or interferring with the applicant's business, movement and life.
4) N10,000.000.00 (Ten Million Naira) only, being damages / compensation for the said unlawful, illegal and unconstitutional violation as aforesaid of the Applicant's rights.
Any other order(s) as this Honourable Court may seem just.”
The Application was supported by a 24 paragraphs verifying affidavit with exhibits, a further and better affidavit and a statement made pursuant to Order 1 Rule 2(3) of the Fundamental Rights Enforcement Procedure Rules wherein the grounds on which the reliefs were sought are stated to be:-
“a) That the continued blockage, obstruction and / or interference with the Applicant's business, movement and life by the Respondents, their agents, servants or privies is not permitted by law and is a violation of his rights to life, personal liberty, dignity and movement guaranteed by Section 30, Section 31, and Section 32 and Section 38 of the Constitution of the Federal Republic of Nigeria, 1979.
b) The Applicant is entitled to the protection of his fundamental rights to life, personal liberty and dignity as well as damages / compensation for the violation of the said rights.”
In opposition to the application the Respondents filed counter- affidavit denying any threat to the applicant's life or interference with his business.
At the hearing of the application, several objections were raised by the respondents. The objections included lack of jurisdiction by the Federal High Court to entertain the application and the non-fulfilment of the conditions precedent to the hearing of the application. After taking arguments of learned counsel on the objections, the learned trial Judge Nwaogwugwu J. in a reserved ruling delivered on 23rd June, 1998 dismissed the objections holding that the application was within the jurisdiction of the Federal High Court and that the applicant had complied with the requirements of the Fundamental Rights (Enforcement) Procedure Rules in bringing the application.
Dissatisfied with that ruling, the Respondent hereafter referred to as Appellants filed the instant appeal. Parties through their counsel filed and exchanged briefs of argument. The Appellants filed and relied on their main brief and reply brief while the Applicant henceforth to be referred to as the Respondent relied on his brief. The crucial issues contested in the court below are substantially the same issues being canvassed in this appeal. The two issues as formulated in the Appellants' Brief and adopted in the Respondent's brief are as follows:-
“i) Whether the Federal High Court has jurisdiction to hear and grant any of the reliefs claimed by the Respondent in that court.
ii) Whether the conditions precedent for the Federal High Court assuming jurisdiction to hear and determine the motion on notice have been fulfilled.”
On the question of Jurisdiction under the first issue for determination reference was made in the Appellants' brief to Section 42(1) of the 1979 Constitution. It was then submitted on the authority of the case of Tukur v. Gongola State (1989) 4 NWLR (Pt. 117)517 that the Sub-section does not confer any jurisdiction on the High Court but merely provides an access to enable any person whose Fundamental Rights are threatened or breached to invoke the jurisdiction of the High Court. It was also submitted that the court below was wrong to have held that the provision confers jurisdiction on the High Court.
Counsel further referred to Sub-section (2) of Section 42 of the 1979 Constitution and submitted that it is subject to Section 230(1) and (2) of the said Constitution as amended by Decree No. 107 of 1993 which sets out the jurisdiction of the Federal High Court. It was then submitted that as the Respondents' claims did not fall within the matters upon which the Federal High Court was expressly conferred jurisdiction as spelt out in Section 230(1) of the 1979 Constitution as amended by Decree 107 of 1993 violations of fundamental rights arising outside those matters cannot be entertained by the Federal High Court. In support of this proposition, counsel relied on the case of Tukur v. Gongola State (1989) 4 NWLR (Pt. 117) 517. Referring to the Respondent's reliefs, counsel pointed out that the right of the respondent allegedly breached or threatened to be breached bordered on Tort, that is, trespass to the person or to goods which wrongs are cognisable in the High Court and not in the Federal High Court. The case of Oamen vs. Owana (1993) 8 NWLR (Pt. 311) 358 was cited. We were therefore urged to strike out the Respondent's case.
In reply, counsel to the respondent, in his brief of argument first drew attention to the reliefs sought by the respondent in his application; he then referred to Section 42(1) of the 1979 Constitution which provides that any person who alleges that any provisions of Chapter IV thereof 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. Reference was also made to Section 277 of the said Constitution which defines “High Court” to mean Federal High Court or a High Court of a State. It was therefore argued that whenever a citizen's rights are infringed in any State, the citizen has a choice either to go to the Federal High Court or the State High Court in that State. It was submitted that both Federal and State High Courts can entertain applications for the enforcement of fundamental rights simpliciter and in addition the Federal High Court can entertain such applications that touch on or pertain to those matters over which by virtue of the constitution it has exclusive jurisdiction. For this submission counsel cited the cases of Oyakhire v. Jen (2000) FWLR (Pt. 20) 699 at 703 Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117)517; Military Administrator, Benue State v. Abayilo (2000) FWLR (Pt.45) 602 at 620.
The word ‘Jurisdiction' has been defined in Halsbury's Laws of England 4th Edition Vol. 10 paragraphs 715 at p. 232 as follows:-
“By Jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the Statute or Charter or Commission under which the court is constituted and may be rescinded or restricted by similar means. If no restriction is imposed the jurisdiction is said to be unlimited. The limitation may be either as to kind and nature of the actions and the matters of which the particular court has cognizance or as to the area of which jurisdiction extends or it may partake of both these characteristics.
See National Bank of Nigeria Ltd & Anor v. Shoyoye & Anor (1973) 5 S. C 181; See also A.G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552. Jurisdiction is a radical and crucial question of competence for if the court has no jurisdiction to hear the case, the proceedings are and remain a nullity, however well conducted and brilliantly decided they might otherwise have been as defect in competence is not intrinsic to but rather extrinsic in the adjudication; see Madukolu & Ors v.Nkemdilim (1962) I ALL NLR 587 at 595. Where a court's jurisdiction is challenged, the court however still has jurisdiction to enquire into the question whether it has jurisdiction to hear the case vide Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976) ALL NLR 409 at 421; Okafor v. AG Anambra State(1991) 6 NWLR (Pt. 2001) 659.
It is a fundamental principle of law that it is the claim of the plaintiff and in the application under consideration, the claim of the applicant / respondent that determines the jurisdiction of the court; see Adeyemi v. Opeyori (1976) 9-10 SC 31; Izenkwe v. Nnadozie(1953) 14 WACA 361; Attorney-General of the Federation v. Att-Gen Abia State & Ors (2001)1 NWLR (Pt. 725) 690 at 675. In other words, it is the claim before the court that has to be looked at or examined to ascertain whether it comes within the jurisdiction conferred on the court; See Western Steel Works v. Steel Workers (1989) 1 NWLR (Pt. 49) 284.
Since it is the claim of the Respondent that determines the jurisdiction of the court and since the Federal High Court is a creature of statute it is necessary to refer to the reliefs sought by the Respondent and to see if they or any of them falls within the jurisdiction of the Federal High Court. For ease of reference, the Respondent's reliefs at the risk of repetition are:-
“1. A declaration that the continued blockage, obstruction and / or interference with the applicant's business, movement and life by the Respondents, their agents, servants or privies is unlawful, illegal, unconstitutional, null and void.
2. An order directing the Respondents to unblock or stop interfering with the applicants' business, movement and life forthwith.
3. An order restraining the Respondents, their agents, servants or privies from further blocking, obstructing and or interfering with the applicant's business, movement and life.
4. N10,000,000.00 (Ten Million Naira) only being damages/compensation for the said unlawful, illegal and unconstitutional violation as aforesaid of the Applicant's rights.”
The jurisdiction conferred on the Federal High Court is set out in Section 7 of the Federal High Court Act Cap 134 Laws of the Federation of Nigeria 1990 and Section 230 (1) of the 1979 Constitution as amended by Decree No. 107 of 1993 and these provisions read as follows:-
Section 7(1) Federal High Court states,
7(1) The Court shall have and exercise jurisdiction in civil causes and matters.
(a) Relating to the revenue of the Government of the Federation in which the said government or any organ thereof or a person suing or being sued on behalf of the said Government is a party.
(b) Connected with or pertaining to;
(i) The taxation of companies and of other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation;
(ii) Customs and excise duties;
(iii) Banking, foreign exchange, currency or other fiscal measures.
(c) Arising from
(i) the operation of the companies and Allied Matters Act or any enactment regulating the operation of companies incorporated under the Companies and Allied Matters Act.
(ii) any enactment relating to copyright, patent designs, trade marks and merchandise marks;
(d) of Admiralty jurisdiction.
(2) The court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters arising out of or connected with any of the matters in respect of which jurisdiction is conferred by Sub-section (1) of the Section.
(3) ……………………………………………………………………..
(4) …………………………………………………………..
Section 230(1) of the 1979 Constitution as amended by Decree No. 107 of 1993 enacts:-
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 arisingfrom:-
(a) The revenue of the Government of the Federation in which the said government or any organ thereof being sued on behalf of the said government is a party.
(b) The taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation;
(c) Customs and excise duties and export duties, including any claim by or against the department of customs and excise or any member or officer thereof arising from the performance or purported performance of any duty imposed under any regulation relating to customs and excise duties and export duties;
(d) Banking, banks, other financial institutions, including any action between one bank and others, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, carriage, legal tender, bills of exchange, letter of credit, promissory note and other fiscal measures provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank;
(e) The operation of any Act or Decree relating to companies and allied matters and any other common law relating to the operation of companies.
(f) Any Federal enactment relating to copyright, patents, designs, trademarks, and passing-off, industrial designs and merchandise marks, business names and commercial industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards;
(g) Any admirality jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluents and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal Ports, including the constitution and powers of the Ports Authorities or Federal Ports and carriage by sea;
(h) Diplomatic, consular and trade representation;
(i) Citizenship, naturalization and aliens, deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas;
(j) Bankruptcy and insolvency
(k) Aviation and safety of aircraft
(l) arms, ammunition and explosives
(m) Drugs and poisons
(n) Mines and minerals (including oil fields, oil mining, geological surveys and natural gas);
(o) Weight and measures;
(p) The administration or the management and control of the Federal Government or any of its agencies;
(q) Subject to the provisions of this constitution the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) Any action or proceeding for a declaration or injunction affecting the validity of any execution or administration action or decision by the Federal Government or any of its agencies and
(s) such other jurisdiction civil or criminal and whether to the exclusion of any other court or not as may be conferred upon it by an Act of the National Assembly;
Provided that nothing in the provisions of paragraphs (p), (q) and (r) 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 specific performance where the action is based on any enactment law or equity.
2. The Federal High Court shall have and exercise jurisdiction and powers in respect of treason, treasonable felony and allied offences.
3. The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction if conferred by subsection (1) of this section.”
It is manifest that none of the reliefs claimed by the Respondent falls within the above provisions delimiting the jurisdiction of the Federal High Court nor does the Respondent's claim to infraction of his fundamental rights arise from or relate to any of the matters to which jurisdiction is conferred on the Federal High Court. Judges have no duty and indeed no power to expand the jurisdiction conferred on them but they have a duty and indeed jurisdiction to expound the jurisdiction conferred on them: African Press of Nigeria v. Federal Republic of Nigeria (1985) 1 ALL NLR 50 at 175; (185) 2 NWLR (Pt. 6) 137 at 165.
In holding that he has jurisdiction over the Respondent's claims, the learned judge of the court below at p. 15 et seq of the report reasoned as follows:-
“……. the relief brought by the appellants is for the enforcement of his fundamental right under Cap 4 of the 1979 Constitution of the Federal Republic of Nigeria as amended. By Section 42(1) and (2) of that Constitution, the High Court, is conferred with original jurisdiction to hear the applicant's application and the applicant is empowered to apply to a High Court in the State where his fundamental right is contravened for redress. Thus Section 42(1) and (2) of the Constitution provides as follows:
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 the High Court in the State for redress.
42(2) Subject to the provisions 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 orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state or any rights to which the person makes the application maybe entitled under the For avoidance of doubt, Section 277 of the Constitution defined High Court to mean the Federal High Court or the State High Court. It therefore goes without saying that since the alleged violation of the applicant's fundamental right being complained against took place at Ugep in Cross River State, the applicant is at liberty to bring his application before the Federal High Court, Calabar, or the State High Court, both being High Courts in the Cross River State where his fundamental right is alleged to have been contravened.
It then follows that the argument of the Respondent's counsel that this court has no jurisdiction to entertain the application is most misconceived, base less and in grave error.”
With profound respect to the learned judge of the court below, I couldn't disagree more. The provisions of Sections 42(1) and 42(2) of the Constitution relied upon by him have received judicial interpretation by the Supreme Court and this was in the celebrated case of Alhaji Umaru Abba Tukur v. Government of Gongola State (supra). It was held therein that sub-section (1) of Section 42 of the Constitution does not confer any jurisdiction on the High Court but merely provides an access to enable any person whose fundamental rights are threatened or breached to invoke the jurisdiction of the High Court. It was further held that sub-section (2) of Section 42 confers special jurisdiction on a High Court to hear and determine any application made to it in pursuance of the sections. But the court held that the jurisdiction conferred is made subject to the provision of the Constitution. After considering the provisions of the Constitution to which Section 42(2) is subjected to, that is, Section 230(1) and (2) and Section 236(1) and (2),the Supreme Court per Obaseki JSC who delivered the majority judgments of the court statedt p. 541 et seq of the report:-
“Thus while the matters in respect of which a High Court of a State has jurisdiction are unlimited, the matters in respect of which the Federal High Court has jurisdiction are strictly limited by the Constitution. This limitation imposed by the Constitution must necessarily affect the matters involving fundamental rights violation which can be adjudicated upon by the Federal High Court. Rather than expand the jurisdiction of the Federal High Court as erroneously held by Belgore J. (as he then was) Section 42 (2) of the Constitution has by the opening phrase “subject to the provisions of this Constitution limited the jurisdiction to enforce the fundamental rights provision to matters in respect of which the Constitution has granted or invested it with jurisdiction.”
Referring to the matters listed in Section 7 (1) and (2) of the Federal Revenue Act 1973). His Lordship at p. 546 continued thus:-
“The matters listed above and in the Constitution in respect of which jurisdiction has been expressly conferred on the Federal High Court lie within the competence of the Federal High Court with regard to the enforcement of Fundamental Rights provisions of the Constitution of the Federal Republic of Nigeria 1979 outside those specific matters the Federal High Court is incompetent to exercise jurisdiction.”
Emphasising the same point, His Lordship at p. 549 concluded thus:
“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 consideraion and determination of the civil rights and obligation in matters outside the jurisdiction of the Federal High Court inextricably involves the 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 posses is a nullity. The lack of jurisdiction inexorably nullifies the proceedings and judgment. It is therefore an exercise in futility.”
See also the case of Oamen v. Owema (1993) 8 NWLR (Pt.311) 358. In the face of the above weighty pronouncement by the Supreme Court, the decisions of which I am bound by precedent to follow, I entertain no doubt in my mind that the Respondent's application for the enforcement of his fundamental rights in accordance with the reliefs sought is not cognisable before the Federal High Court as those reliefs do not touch or arise from matters within the express jurisdiction of the court. The learned judge of the court below was therefore in grave error to have held otherwise.
There is therefore merit in the first issue for determination which accordingly succeeds.
The second issue for determination poses the question “whether the conditions precedent for the Federal High Court assuming jurisdiction to hear and determine the motion on notice have been fulfilled?”
In his brief of argument, counsel for the Appellants contended that the conditions precedent were not complied with in that
(a) the motion ex parte filed on 16 / 12 / 96 was granted on 15 / 1 / 97 without its being moved by the Respondent or his counsel.
(b) that the statement and affidavit used for the ex parte motion filed on 16 / 12 / 96 were different from those filed on 23 / 1 / 97 used in support of the motion on notice in breach of Order 2 rule 2(1) and Order 1 rule 2(4) of the Fundamental Rights (Enforcement Procedure) Rules 1979 citing the case of Ogwuche & Ors v. MBA & Ors. (1994) 4 NWLR (Pt. 336) 75.
(c) the return date for the hearing of the motion on notice was fixed for 30 / 1 / 97, that is 15 days outside the mandatory 14 days from the grant of leave contrary to Order 2 rule 2 of the Fundamental Right (Enforcement Procedure) Rules 1979 relying on Ogwuche & Ors v. Mba & ors supra.
t was therefore submitted that since the conditions precedent for bringing the application for the enforcement of the Appellants' fundamental rights had not been fulfilled, the entire proceedings before the lower court were a nullity.
Responding, counsel to the Respondent through his brief referring to the case of Agbokoba v. The Directors SSS (1994) 6 NWLR (Pt. 351) 457 at 489 contended that the procedure for the enforcement of fundamental rights was complied with. It is the further submission of counsel through his brief that the inference to be drawn from the presence of the Respondent's counsel in court on 15 / 1 / 97 and the granting of the application for leave was that the application was duly presented to the court and argued, and that both the provisions of order 2 Rule 2(1) and order 1(2) were duly complied with citing the case of Attorney-General of the Federation of Nigeria v. Ajayi (2000) 12 NWLR (Pt. 682) 509.
The issue being canvassed by counsel touches on the competence of a court to adjudicate over a matter brought before it. It is well established that a court is competent to hear a case only when all the conditions precedent to hearing the case are fulfilled. In the often quoted case of Madukolu v. Nkemdilim (1962) 1 ALL NLR 587 at 595 Brett F.J. stated:
“A Court is competent when-
1) It is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or another; and
2) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
3) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the ad judication.”
See The State v. Onogoruwa (1992) 2 NWLR (Pt. 221) 23. The Appellant's complaint falls under item No. 3 above, that is, that the Respondent's application for the enforcement of his fundamental rights was not commenced by due process of law. Pursuant to sub-section 3 of Section 42 of the 1979 Constitution the Chief Justice of Nigeria made the Fundamental Rights (Enforcement Procedure) Rules, 1979 to regulate the practice and procedure for those seeking redress in the High Court for violation of their fundamental right under Chapter IV of the 1979 Constitution. Despite the said Rules, there appears to be among jurists a cleavage of opinion as to whether those Rules and no other rules of court should be adopted in seeking redress from the court. In Din v. A-G of the Federation (1986) NSCC (Pt.11) 449; (1986) 1 NWLR (Pt.17) 47; the Supreme Court per Nnaemeka – Agu JSC said, inter alia,
“that the Fundamental Right (Enforcement Procedure) Rules 1979 have prescribed the correct and only procedure for the enforcement of fundamental rights which arise under chapter iv of the Constitution.”
In Alhaji Saidu v. Alhaji Abdullahi (1989)4 NWLR (Pt. 116) 387 at 419. Eso JSC speaking on the same topic observed:-
“Assuming the Statutory Instrument SI.1 of 1979 had not been made, the person seeking redress could bring the motion to court in any manner that clearly depicts complaint of the infringement of the Rights.
Indeed the Statutory Instrument is so clearly worded that it does not lay the procedure therein down as the only procedure by which redress could be sought.”
More recently, in the case of Ogugu v. State (1994) 9 NWLR (Pt. 366) I at p. 26, Bello CJN expressed a similar view to those of Eso JSC thus;-
“I am inclined to agree with Mr. Agbakoba that the provision of Section 42 of the Constitution for the enforcement of the fundamental rights enshrined in Chapter IV of the Constitution is only permissible and does not constitute a monopoly for the enforcement of those rights. The object of the Section is to prove (sic) a simple and affective judicial process for the enforcement of fundamental rights in order to avoid the cumbersome procedure and technicalities for their enforcement under the rules of the common law or other statutory provisions. The object has been achieved by the Fundamental Rights (Enforcement Procedure) Rules 1979. It must be emphasised that the section does not exclude the application of the other means of their enforcement under the common law or statues or rules of courts. These are contained in the several laws of our courts, for example sections 18, 19 and 20 of the High Court of Lagos relating to mandamus, prohibition, certiorari, injunction and action for damages. A person whose fundamental right is being or likely to be contravened may resort to any of these remedies for redress.”
Notwithstanding the divergent views expressed above, I think the bone of contention in the instant case which needs to be addressed is whether the Respondent had complied with the procedure he has chosen, that is, the procedure under the Fundamental Rights (Enforcement Procedure) Rules to be referred to as the Rules simplicitier.
As I had stated earlier in this judgment the first complaint of the Appellant's counsel under the issue being considered is that the Respondent's motion ex parte filed on 16 / 12 / 96 was granted on 15 / 1 / 97 without its being moved by the Respondent or his counsel. Regrettably, counsel did not indicate the relevant provisions in the rules which makes such a course mandatory. I am however not unaware of the settled principle of law that a person who wants to invoke the exercise of the discretion of any court in his favour ought to not only file his motion before the court but also move the motion in court. See State v. Onogoruwa (1992) 2 NWLR (Pt. 221)33 at p.58. In the case in hand, on 15 / 1 / 97 when the motion ex parte came up before the court, according to the record of proceedings at p. 14, the Applicant's / Respondents' counsel was in court and although it was not recorded that he moved the ex parte application for leave the court granted the application for leave for the applicant to enforce his fundamental rights. The order drawn up pursuant to the proceedings (p. 15 of the record) stated that the respondent counsel moved in terms of the motion. I am of the view that since the motion was ex parte, not contentious and duly filed and the Respondent's counsel appeared in court, it is reasonable to presume that he moved the motion before it was granted.
The Appellants could not complain of lack of fair hearing because the Rule in question provides as an initial step for ex parte application for leave. The Appellants' complaints in my view border on mere technicality. The attitude of our courts has shifted away from the narrow technical approach to justice to do substantial justice. The courts now take the view that not every slip is fatal to the course of justice. See Nneji v. Chukwu (1980) 3 NWLR (Pt. 21) 181; Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 717.
The Respondents second complaint is that the statement and affidavit used for the ex parte motion filed on 6/12/96 were at variance with those filed on 22/1/97 in support of motion on notice in breach of Order 2 rule 2(1) and Order I Rule 2(1) of the Rules. These Rules provide as follows;
Order 2 Rule 2(1)
“Copies of the statement in support of the application for leave and must be served with the motion on notice…………………………...
and subject to paragraph (2) of this rule no grounds shall be relied upon or any relief sought at the hearing of the motion or summons except the grounds and reliefs set out in the said statement.”
Order 1 Rule 2(4)
“The applicant must file in appropriate court, the application for leave not later than the day preceeding the date of hearing and must at the same time lodge in the said court enough copies of the statement and affidavit for service on any other party or parties as the court may order.”
I think that it is Order 2 Rule 2(1) and not Order 1 Rule2(1) that bears relevance to this arm of the appellants' complaint. The record of appeal reveals that the ex parte motion and the supporting statement and verifying affidavit were dated 16/12/96 while the motion on notice and verifying affidavit were dated 23/1/97 and the statement dated January 1997 without any indication of the date in January. It is this discrepancy that hasrompted the appellants' counsel to submit that the statement and verifying affidavit used in respect of the ex parte motion were not the same as those used in filing the motion on notice, whereas the intendment of Order 2 Rule 2(1) suggests that they should be the same. In regard to this complaint, the court below in the ruling at p. 18 et seq of the record commented thus:
“I have perused the affidavit and statement used in the ex parte application for leave and those now used for the motion on notice although the statement was not stamped and did not bear any dates. As far as the court is concerned that goes to the issue of form and not substance. I have gone through the averments in the verifying affidavit used in the application for leave as well as the statement used and I have compared them with those used now in the motion on notice. I am unable to see any difference in them in terms of substance. The averments in the affidavits and their paragraphs are the same, the deponents same. The statement setting out the reliefs sought, the grounds and the description of the applicant are just the same. The Respondents throughout their argument on the issue did not refer me to any material difference between the affidavits or statement used in the ex parte application and the one now being used in the application on notice.”
There is no appeal against the crucial finding. It is the law that if a finding or decision of a trial court whether on an issue of fact or law is not challenged in an appeal to the Court of Appeal, such a finding or decision rightly or wrongly must not be disturbed for the purpose of the appeal in question; See Nwaebueze v. Okoye (1988) 4 NWLR (Pt. 91) 664; Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 332. I have myself examined and compared the documents in question and agree that there is no material difference in their content. It needs to be emphasised that the essence of Order 2 Rule 2(1) is better appreciated from the second part of the provision, to wit, “Subject to paragraph (2) of this Rule, no grounds shall be relied upon or any relief sought at the hearing of the motion or summons except the grounds and reliefs set out in the statement.” It is to avoid a situation where an Applicant obtains leave to seek certain reliefs upon certain grounds only to summersault in the motion on notice with different reliefs based ondifferent grounds. Such an application will be rendered incompetent as was the case in Ogwuche v. Mba (1994) 4 NWLR (Pt. 366) 1. The situation is however different in the instant case. I find no merit in the Appellant's contention in regard to the complaint under consideration.
The third and last ground of complaint of non-compliance with the rules relates to Order 2 Rule 2 of the rules which provides:
“The motion or summons must be entered for hearing within 14 days after such leave has been granted.” (italics supplied)
In the instant case, learned counsel to the Appellants stated that leave was granted on 15/1/97 while hearing of the notice of motion was slated for 30/1/97, a period of 15 days from the day leave was granted. This, learned counsel to the appellant submitted has rendered the application incompetent. He relied on the decision of this court (Jos Division) in Ogwuche's case supra where it was held that the word ‘must' used in order 2 Rule 2 is mandatory and not directory and that the return date for the hearing of the motion on notice must be 14 days from the date leave was granted hence proceedings undertaken after the statutory period are invalid. In his response counsel to the Respondent referred to the case of Attorney – General of the Federation of Nigeria v. Ajayi (2000) 12 NWLR (Pt. 682) 509 a decision of this court (Lagos Division) in which the word ‘entered' in Order 2 Rule 2 of the Rules was interpreted to mean the filing of the motion on Notice in the Court Registry so that if the motion on notice is filed within 14 days from the granting of leave but not fixed for hearing within that period, that was in compliance with the Rule. The case of Umoh v. Nkan (2000) 3 NWLR 512 was also alluded to.
The question under consideration is predicated on the construction of Order 2 Rule 2 already set out above and in particular the meaning of the expression ‘entered for hearing' that is, does it imply filing of the motion on notice or fixing the motion for hearing. In the cause of the Attorney-General of the Federation of Nigeria v. Ajayi supra, the court (Lagos Division) per Aderemi JCA at pp 531 – 533 had this to say on the issue:
“Next I shall take together issue 2 in each of the briefs of the appellant and the respondent. The complaint here is whether the breach of the provisions of Order 2 rule 2 of the Fundamental Rights (Enforcement Procedure) Rules is fatal to enforcement of the rights.”
Order 2 Rule 2 provides:
“The motion or summons must be entered for hearing within fourteen days after such leave has been granted.”
The appellant, through his brief submitted that it is crucial by the provision of the rule quoted above that the return date must be within 14 days from the date leave to enforce the fundamental right was granted; in the instant case 17 days had elapsed between the date leave was granted and the date the motion was set down for hearing; that non compliance with the provisions of the law renders the whole proceedings a nullity, he relied on the decision in Ogwuche v. Mba (1994) 4 NWLR (Pt. 336) 75. To counter that submission, the respondent through his brief, referred to Order 53 rule 5(5) of the Supreme Court Practice (White Book) of England (1997) which, according to him, is in pari materia with the provisions of Order 2 rule 2 and argued that the phrase “Entered for hearing” within the context of the rule means no more than the process whereby the motion or summons is entered in the records of the court; and that, he further argued, is filing of the process in the court registry. The meaning ascribed to the word “Entered” in the Ogwuche case relied on by the appellant cannot stand while relying on the decisions in Ezomo v. A-G Bendel State (1986) 4 NWLR (Pt.36) 448; and Ogunremi v. Dada (1962) 2 SCNLR 417; (1962)1 ALL NLR 663. Order 53 of the Supreme Court Practice of England (1965) RSC regulates the bringing of applications for judicial review in England. Rule 5(5) of the said order which is in pari materia with our Order 2 rule 2 provides:
“A motion must be entered for hearing within 14 days after the grant of leave.”
In their commentaries on the phrase “entry for hearing” the authors of the Supreme Court Practice 1991 volume at page 837 under the chapter 53 /1 – 14 / 40 said and I quote:
“This is the process whereby the substantive application for judicial review is entered in the records of the Crown Office. In order to enter a case for hearing the applicant must in each case, within 14 days of the date of the grant of leave:
i) File with the Crown Office an affidavit of service Cr 5(6). The affidavit of service (sic)
a) give the names and addresses of, and the places and dates of service on, all persons who have been served with the notice of motion or summon; and (b) if any person who ought to be served under r. 5(3) has not been served, state the fact and the reason of it.
ii) Lodge with the Crown Office by way of entry for hearing a copy of the notice of motion (or presumably, the summons if the court has directed that the application be made by originating summons).”
The learned counsel for the plaintiff/respondent has argued that within the context of the English provision afore-mentioned “enter for hearing” can be nothing more than the process whereby the motion or summons is entered in the records of the court; and in England, in construing that provision it is the process of lodging a copy of the process with the Crown Office by the applicant. I cannot but agree with that submission. But does that phrase connote different meaning in Nigeria? In the case of Ezomo v. A.G Bendel State (1986) 4 NWLR (Pt. 36) 448, the Supreme Court held that until an appeal is ‘ entered' in the appellate court, that court is lacking in power to control the proceedings as between the parties. In answering the question “when is an appeal entered” the Federal Supreme Court (as our highest court used to be called) said inOgunremi & Anor v. Dada (1962) 2 SCNLR 417; (1962) 1 ALL NLR 663 per the judgment of Brett F.J thus:
that an appeal to the Supreme Court is entered when the record of appeal is received in that court and entered in the cause list. Prior to the delivery of the judgment in Ogunremi's case by the then Federal Supreme Court on the17th of December 1962, the High Court of the old Western Region presided over by Oyemade J. had on 15th January 1962 in Adewoyin & Ors. v. Adeyeye (1962) SCNLR 310; (1962) 2 ALL NLR 108 held that an appeal is entered when the Registrar of the court below has forwarded the record of appeal to the registrar of the Appeal Court who shall in due course enter the appeal inhe cause list. The practical meaning in my view, is that the notice or the process shall be filed in the court within the time prescribed by the rule. Once that is done, the applicant in my view, has complied with the provisions of the rule. The fixing of the application for hearing is the exclusive function of the officials of the court and an applicant has no control over that. I have read the decision of this court (Jos Division) in Ogwuche & Ors v. Mba & Ors. (1994) 4 NWLR(Pt. 336) 75 on which the appellant placed reliance; in interpreting the provision of Order 2 rule 2 the court said at page 85:
“The word “must” as used is mandatory. Effect must be given to the word. Therefore the court must fix it for hearing within 14 days. I am of the opinion that the construction to be drawn from the provision is that the proceedings that took place fourteen days after leave has been granted amounts to a nullity.”
This court (Jos Division) did not consider the Supreme Court decisions in Ezomo and Ogunremi cases. As I have said, the fixing of matters for hearing in the court is an exclusive function of the court officials. Where there is any default in the performance of the functions of the court the blame cannot and must never be placed at the door step of a litigant who is seen to have carried out his own duty under the law or the rule. Faced with the two decisions of the Supreme Court referred to above and being bound by them I refuse to follow the decision of this court (Jos Division) on Ogwuche's case.
Indeed, the Supreme Court, has recently reiterated the same principle in its decision in Ezeokafor v. Ezeilo (1999) 9 NWLR (Pt.619) 513. In the instant case leave of the court below to enforce the fundamental rights of the applicant was granted on the 9th of June 1995, the motion on notice was filed on 12th June, 1995 (within the 14 days period and the motion on notice was set down for hearing on 26th June, 1995. When the applicant filed the motion on 12th June, 1995 he has by so doing performed his own duty to see to it that the application was entered for hearing within 14 days after the grant of the leave.
I am in agreement with the above observation. Entering a motion on notice for hearing in the context of Order 2 Rule 2 of the Rules can only mean the filing of the motion forit to be fixed for hearing. It must be borne in mind that as at the time the ex parte motion for leave to enforce the fundamental right is being granted the motion on notice is not before the court and therefore could not strictly speaking be fixed for hearing. It is when it is filed that it is fixed for hearing by court officials. I am therefore of the firm view that if the motion on notice is filed in the Court Registry within 14 days from the date the motion ex parte was granted, that is due compliance with the sub-rule under discussion notwithstanding that the motion on notice was fixed for hearing or heard outside the statutory period of 14 days.
In the case of Ezeadukwa v. Maduka (1997) 8 NWLR (Pt.518) 638, the motion ex parte was granted on 26th April, 1989 to enable the applicant to file motion on notice but that was not done until 16th June 1989 a period of about fifty-one days. It was held that it was a clear breach of Order 2 Rule 1(2) of the Fundamental Rights (Enforcement Procedure) Rules, 1979. In Umoh v. Nkan (supra) the Respondents therein were granted the ex parte motion for leave to enforce their fundamental right on 4th August, 1997 by the court below which also adjourned the case to the 6th October, 1997 for hearing. They filed their motion on notice on 20th August, 1997 instead of 18th August, 1997 which by computation of the fourteen days period for filing the motion on notice was the 14th day. They were held to be two days out of the statutory period. In the instant case, the Respondent filed in the court below his ex parte application to enforce his fundamental rights on 16th December, 1996. The leave was granted on 15th January, 1997 and the case adjourned to 30th January, 1997 for hearing but although ruling was delivered on 23rd June, 1998, the record shows the motion on notice was filed on 23rd January, 1997. The relevant period for consideration is the 15th January, 1997 when the ex parte application for leave was granted and 23rd January, 1997 when the motion on notice was entered or filed. This is a period of eight days which is within the fourteen days statutory period prescribed in Order 2 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules. The contention by the Appellants that the conditions precedent for the Federal High Court to assume jurisdiction (assuming it had jurisdiction) had not been complied with is not well founded.
In my consideration of the first issue for determination on the jurisdiction of the Federal High Court, I reached the conclusion that it lacked the jurisdiction to entertain theRespondent's application for the enforcement of his fundamental rights. The inevitable implication is that the proceedings before it in regard to that matter were a nullity. This makes it unnecessary for the consideration of the second issue. I have however, ventured to express my view on it in the event my conclusion of the question on jurisdiction is faulted.
Granting as I have opined that the Federal High Court lacked jurisdiction to entertain the respondent's claims, it remains to consider the appropriate order to make in the circumstance. In this connection, I refer to Section 22(2) of the Federal High Court Act, Cap 134 Laws of the Federation 1990 which enacts:-
“No cause or Matter shall be struck out by the court merely on the ground that such cause or matter was taken in the court instead of the High Court of a State or the Federal Capital Territory, Abuja in which it ought to have been brought and the Judge of the court below before whom such cause or matter to be transferred to the appropriate High Court of a State or of the Federal Capital Territory, Abuja in accordance with Rules of Court to be made under Section 44 of this Act.'
In Interpreting an identical provision of the Federal Revenue Court Act 1973, in the case of Mokelu v. Federal Commissioner for Works and Housing (1976) 1 NWLR 329 at p. 323,the Supreme Court per Madarikan JSC had this to say:-
“We think that Mr. Balogun was on firm ground when he submitted that where an action is instituted in the Federal Revenue Court instead of the High Court in which it ought to have been brought, Section 22(2) enjoins the Federal Revenue Court not to strike out the action merely on that ground. In the expression “no cause or matter shall be struck out by the Federal Revenue Court,” we are of the view that the word ‘shall' must be given its natural and proper meaning which is that a mandate is enjoined. Having so construed the word “shall” we will now proceed to consider what interpretation to give to the word “may” appearing in the following portion of the subsection:
“the judge of the Federal Revenue Court before whom such cause or matter is brought may cause such cause or matter to be transferred to the appropriate High Court of a State………..” ‘May' is an enabling or permissive word. In that sense it imposes or gives discretionary or enabling power. But where the object of the power is to effectuate a legal right, “May” has been construed as compulsory or as imposing an obligatory duty.
We have carefully considered the wording of Section 22(2) of the Federal Revenue Court Decree 1973 and we are convinced that for a true and correct meaning to be given to the word “may” it must be construed as imposing an obligatory duty. Absurdity or repugnancy would follow from holding that a discretion was given; because when a judge of the Federal Revenue Court holds that he has no jurisdiction and then refuses to order a transfer, he can neither strike out the case nor dispose of it in any other manner. In our view, the learned trial judge having rightly held that he had no jurisdiction was clearly in error when he ordered that the case be struck out as this is contrary to the provisions of Section 22(2) of the Federal Revenue Court Decree. The proper order in the circumstances was to transfer the case to the appropriate High Court in pursuance of the provisions of Section 22(2).”
It is clear from the above passage that court below is invested with the power to transfer the case to the appropriate State High Court having jurisdiction if it had arrived at the conclusion that it lacked jurisdiction to entertain the subject-matter before it. See also Aluminum Manufacturing Co. (Nig) Ltd v. NPA (1987) 1 NSCC 224. By the provisions of Section 16 of the Court of Appeal Act this court is empowered to make the order which the court below could have made: See Faleye &Ors. v.Otapo & 2 Ors. (1995) 3 NWLR (Pt. 381) 1 at 276. Since the court below had no jurisdiction to entertain the Respondent's application for the enforcement of his fundamental rights, the motion on notice filed pursuant to the exparte order granted by that court is invalid and so what remains is theexparte order for leave and this is what can be remitted to the appropriate High Court.
From the foregoing, this appeal is allowed. The Ruling of Nwaogwugwu J. delivered on 23rd June, 1998 is hereby set aside. The Respondent's ex parte application for leave to enforce his fundamental rights is remitted to Ugep High Court for determination. The sum of N5,000.00 costs is awarded the Appellants.
OPENE, JCA: I have read in advance the judgment just delivered by my learned brother, Edozie, JCA, I agree with him that the appeal is meritorious and therefore ought to be allowed.
I also agree with him that the Federal High Court lacks the jurisdiction to entertain this suit and that the appropriate order to be made is that the ex parte application for leave to enforce the Respondents' fundamental rights be remitted to Ugep High Court for hearing and it is accordingly remitted to that Court.
The Appellant is awarded N5,000.00 costs.
EKPE, JCA: I have been privileged to read in advance the leading judgment just delivered by my brother, Edozie, JCA and I entirely agree with his reasoning and conclusions. Indeed, he has so exhaustively dealt with the issues raised in the appeal that I do not find it expedient to add any thing more.
I hereby also allow the appeal and abide by the orders made in the leading judgment including the consequential order as to costs.
