IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
RULING DELIVERED BY HIS LORDSHIP HON. JUSTICE L.H. GUMMI, OFR,
CHIEF JUDGE ON 30th January 2012
SUIT NO: FCT/HC/CV/1075/09
Motion No. M/3051/09
BETWEEN:
Tijjani Abdullahi
- - - - - - - - - - - - - - - - - - -PLAINTIFF/RESPONDENT
AND
(1)
(2)
(3)
(4)
(5)
(6)
(7)
FEDERAL CAPITAL TERRITORY ADMIN.
MINISTER OF FCT
SENATE OF THE NATIONAL ASSEMBLY
PRESIDENT OF THE SENATE
SENATOR ABUBAKAR D. SODANGI
CLERK OF THE NATIONAL ASSEMBLY
ATTORNEY GENERAL OF THE FEDERATION
- - - - - - DEFENDANT/APPLICANT
RULING
This is a consolidated ruling on the Preliminary Objections filed by the
Defendants in this action.
Mr. Benson Igbanoi Esq. filed a Preliminary Objection on behalf of the
1st and 2nd Defendants. That Motion is dated the 19th of April 2009.
By a Motion dated 16th December 2009 Sarah Ovayoza Omonayin filed
a similar Preliminary Objection on behalf of the 6th Defendant.
Finally, T. N. Ndifon equally filed a Preliminary Objection to this action
on behalf of the 7th Defendant.
1st and 2nd Defendant’s motion is supported by a 6 paragraph affidavit
deposed to by one Innocent Obi while one exhibit marked as Exhibit
~1~
“KA1” being a copy of the Federal Republic of Nigeria official gazette
No.55 containing the approved guidelines for the sale of government
houses . In arguing the said motion, 4 issues were raised for
determination viz;
(i)
Whether the High Court of the FCT has Jurisdiction to entertain
the suit,
(ii)
Whether the suit is Justiciable,
(iii)
Whether the suit discloses a reasonable cause of action,
(iv)
Whether the Plaintiff has the requisite Locus Standi to institute
the action.
It was argued on Issue 1 that the jurisdiction of the High Court of the FCT
is subject to the provisions of Section 251 of the 1999 Constitution- LABIYI
V. ANRETIOLA (1992) 8 NWLR (PT 258) 139 AT 163 H .Counsel noted that
the suit is challenging the decision of the Senate which is an arm of the
government and further that the Office of the Minister of the FCT is an
office created by the President under Section 147 of the Constitution
and as such, the proper place to commence the action ought to have
been the Federal High Court as provided by Section 251(1),(P) and (R)
of the 1999 Constitution and supported his contention with the following
cases – NEPA V. EDEGBERO & ORS (2004) 3 NWLR (PT 798) 79 AT 99 – 100
– H – C and NYSC V. ADAH (2004) 13 NWLR (PT 891) 639 AT 649.
~2~
On issue No.2, Mr. Igbanoi contended that the suit is not justiciable as it
would amount to the court being invited to reinvestigate the activities
of the Senate that had earlier investigated the Plaintiff under its powers
as conferred by Sec.88 of the 1999 Constitution.
That Section he
maintained gives the Senate and House of Representatives the power
to investigate not only any matter or thing with respect to which it has
power to make law but also the conduct of affairs of any person,
authority, ministry or government department.
He argued that any
action carried out by the Senate under Sec.88 of the Constitutions is not
subject to judicial review. Counsel on this point referenced the work
of Prof. Ben Nwabueze, SAN i.e. THE PRESIDENTIAL CONSTITUTION OF
NIGERIA and CLIVE LEWIS; JUDICIAL REMEDIES IN PUBLIC LAW. He also
referred me to Exhibit SS7 being the recommendations of the Senate.
The gist of the 3rd issue is whether the suit discloses a reasonable cause
of action and on this Counsel cited Order 22 Rule 4 of the High Court of
the FCT Civil Procedure Rules and submitted that the Plaintiff’s claim is
based on the Approved Guidelines for Sale of Federal Government
Houses in the FCT as published in the Federal Republic of Nigeria
Official Gazette Government Notice No.155 of 15th August, 2005 (Public
Notice No.2). He submitted that the guideline exempted from sale, all
Presidential Guest Houses and Safe Houses of the Intelligence
~3~
Community and further that under paragraph 9 of the guidelines, all
houses occupied by Political Office holders would be sold in an open
Auction. Counsel submitted that the Statement of Claim and the
Witness Statement on Oath details the facts upon which the Plaintiff has
based his claim. He submits that they are completely outside the
purview of the guidelines and thus, they are incapable of grounding an
action. He cited RINCO CONST. CO V. VEEPEE IND. LTD (2005) 9 NWLR
(PT 929) PG 85 AT 96, IBRAHIM V. OSIM (1989) 3 NWLR (PT 820) 257 and
the English case of DRUMMOND JACK V. BMA (1970)1 ALL ER 1094 AT
1100 to submit that “a reasonable cause of action means a cause of
action with same chances of success, when (as required by paragraph
(2) of the rule) only the allegation in the pleadings are considered, if
when those allegations are examined it is found that the alleged cause
of action is certain to fail, the statement of claim should be struck out”.
Further in his argument, Mr. Igbanoi submitted that a defendant should
be relieved of having to meet a claim which discloses no reasonable
cause of action. - see Mackay & Anor V. Essex Area Authority (1982) 2
All CR 771 at 778 and THREE RIVERS DC V. BANK OF ENGLAND (NO.3)
(2003) 2 AC 1 (HL) AT PARAGRAPH 95 PG 260 – 261.
Finally on Locus Standi, counsel, while relying on BAMGBADE V.
BALOGUN (1994) 1 NWLR (PT323) AT PG 718 and OWODUNNI V.
REGISTERED TRUSTEES OF CCC (2000) 10 NWLR (PT 675) submitted that
~4~
cause of action is inextricably tied to locus standi and consequently
once there is no reasonable cause of action, the plaintiff also lacks the
locus to sue.
In conclusion, counsel urged me to strike out and or dismiss the suit of
the Plaintiff.
The preliminary Objection filed on behalf of the 6th Defendant was
supported by an affidavit deposed Yahaya Oyiza Omonayin. The said
affidavit had 8 paragraphs and 4 Exhibits attached. The issues raised
for determination being similar to that earlier raised by the counsel for
the 1st & 2nd Defendants were as follows;
(1)
Whether the High Court of the FCT has jurisdiction to entertain
this suit.
(2)
Whether the suit disclosed a cause of action
(3)
Whether the suit is justiciable
(4)
Whether the Plaintiff has the locus standi to institute the action.
Sarah Omonayin for the 6th Defendant submitted that the jurisdiction of
the High Court of the FCT is provided for under section 257 of the
Constitution and is subject to the provisions of Section 251 of the same
constitution which confers jurisdiction in the Federal High Court in
certain matters. Counsel argued that the 6th Defendant is the
administrative head of the 3rd Defendant and consequently stands to
defend their actions. Counsel argued further that senate is an arm of
~5~
the Federal government and an action such as this brought against the
Federal Government can only be entertained by the Federal High
Court.
Counsel cited A.G. FEDERATION V. ABUBAKAR(2007) NWLR PT 1035 PG
155 to submit that where the claim is for a declaration or injunction
affecting the decision of the Federal Government it is only the Federal
High Court that has jurisdiction under section 251 (1) (r) . It was further
argued that once the jurisdiction of a court is undermined, the proper
order is to strike out the suit- OKO V. IGWESHI (1997) NWLR PT 497 PG 62.
Secondly, it was argued for the 6th Defendant that this suit ought to be
dismissed for disclosing no reasonable Cause of action.
It was
contended that the 3rd defendant held a session on Wednesday 4th
February 2009 and resolved thereat to withdraw and revoke the sale
and purchase of all Federal Government properties corruptly and
illegally allocated in breach of the government guidelines. It was
argued that in line with that resolution, all the houses allocated by the
former Minister of the FCT between 17th and 29th May 209 a period
within which he had become functus officio be withdrawn. Counsel
further argued that the sale and purchase of the subject matter i.e. No.
24 Suleiman Barau crescent Asokoro Abuja to the Plaintiff / Respondent
was founded on an illegal contract as the offer letters were signed by
~6~
the then minister on the 21st of May 2009 after he had ceased to be
minister which effectively terminated his authority to transfer title in the
subject matter. Counsel also maintained that the subject matter was a
Vice Presidential Guest House which was on the list of houses excluded
from the sale under the specified guidelines. These submissions were
anchored by counsel’s contention that since the contract was null and
void, it was not actionable. I was urged to see Sagay , Nigerian Law of
Contract 1993 page 330 where the learned author opined that such a
contact is based on an illegal agreement which the court will not
enforce. He noted that the Plaintiff having founded his action on an
illegal and void contract has no cause of action as the court will not
lend its weight to illegality. Counsel also on this point cited SCOTT V.
BROWN (1891-4) ALL ER. 657: (1892) 2 QB 724 AT P. 728 and the Nigerian
case of OSHIOMOLE V. FGN(2007) NWLR (pt. 1035) 58 at 83.
It was submitted respectfully , that once a Plaintiff had no cause of
action, a court is deprived of jurisdiction to entertain the matter- F.R.I.N.
V. GOLD (2007) 11 NWLR( PT 1044) 1 SC AT 18.
Thirdly, counsel for the 6th defendant contends that the suit is not
justiciable. On this issue, counsel notes that an action is said to be
justiciable when it is proper to be examined by a court of justice. he
notes that a case is non- justiciable when it is one upon which a court
~7~
or Judge cannot adjudicate or over which the court has no jurisdictionOKO V IGWESHI (1997)4 NWLR PT 497 . Counsel’s argument is that the
suit is a challenge against a decision of the legislative arm of
government which earlier nullified the sale of the subject matter to the
Plaintiff by the 1ST and 2ND Defendants in this action. He argued further
that the power to legislate for peace, order and good government in
Nigeria lies with the National Assembly on matters on the exclusive
legislative list as was determined by the Supreme Court in A.C. ONDO
V. A.G. FEDERATION 10 NSCOR PG 1085 and therefore, the current
action arising from the Senate’s stance against illegality and corruption
in the sale and allocation of government house is not subject to
challenge by the Plaintiff in the action.
Finally calling the court to determine whether or not the respondent
had the required locus to sue, it was submitted that he lacks the locus
to institute this action since he knowingly and willingly formed and
performed illegal and void contracts of sale by reason of which he
came into possession of the subject matter. Arguing that locus like
jurisdiction
is
a
threshold
issue,
counsel
cited
BEWEJI
V.
OBASANJO(2008) 9 PG. 568 to support the contention that the Plaintiff
having formed and performed an illegal contract of sale which was
abinitio void cannot derive any right or interest from it and the court
would not lend its aid to a party who founds his action on an illegal act.
~8~
7th Defendant’s was supported by Mr. Paul C. Ashuikeke’s Preliminary
Objection,
premised
on
six
grounds
and
raised
4
issues
for
determination. The grounds were as follows;
(1)
That the court lacks jurisdiction or ought not to exercise
jurisdiction in the matter,
(2)
That the suit is essentially and principally directed against the
decision of an arm of the Federal Government, namely the
Senate and as such an action is not cognizable under section
257 of the 1999 Constitution which defines the jurisdiction of
the High Court of the FCT,
(3)
That the suit is not justiciable,
(4)
That the suit does not disclose any reasonable cause of action,
(5)
That the plaintiff has no locus to standi to institute the action
and,
(6)
The suit is otherwise incompetent.
While arguing the motion, four issues were raised for determination
namely
1. Whether this court being the High Court of the FCT has jurisdiction
to entertain the suit.
2. Whether the suit is justiciable
3. Whether the suit discloses a reasonable cause of action
~9~
4. Whether the plaintiff has the locus standi to institute this action
On issue no.1 counsel submitted that jurisdiction is a threshold issue
which must be determined by a court once it is raised as anything
done without jurisdiction is a nullity – MADUKOLU V. NKEMDILIM (1962) 1
ALL NLR 1; ABDULSALAM V. SALAWU (2002) 6 SC (PT. 2) 196; ADEKANYE
& 25 ORS V. COMPTROLLER OF PRISONS & ORS (2000) FWLR (PT.11) 1861.
He submitted further on the issue that the main purpose of the Plaintiff’s
claim is to challenge the decision of the Senate against the allocation
of the property known as 24 Suleiman Barau Crescent Asokoro, Abuja
which is a Vice- Presidential Guest House and exempted from sale
under the approved guidelines by which the Plaintiff now invites the
court to nullify the decision of the senate nullifying the sale. On this
note, counsel argued that the senate being an arm of the Federal
Government and the action challenged
is the validity of an
administrative action or decision of the senate, the proper avenue for
parties to vent their spleen should be the Federal High Court and not
the High Court of the FCT- counsel urged me in determining this issue to
consider the provisions of S. 251 of the 1999 Constitution and the cases
of ADEKOYE V. N.S.P. (2009) Vol. 2 MJSC(pt.1) 54 at 57 r. 3 and N.E.P.A.
v. EDEGBERO( 2003) All FWLR (pt. 139) 1556 at 1571 .
Arguing on justicability of the substantive action, counsel submitted
that the suit which is a challenge of the Senate’s decision is a call to the
~ 10 ~
court to re-investigate the circumstances under which the subject
matter was allocated. He noted that at this stage, the intent of the
substantive action is to challenge the action and the report of the
senate which is not justiciable in view of the provisions of s.88 of the
1999 constitution which has given exclusive powers to the National
Assembly to
investigate not only matters or things
with respect to
which it has powers to make laws but also the conduct of the affairs of
any person , authority, ministry, or government department charged
with executing or administering laws enacted by the national assembly
and it was therefore wrong for the court to now interfere in a matter
entrusted to another arm of government.
Arguing that the suit does not disclose a reasonable cause of action,
counsel submitted that when a statement of claim discloses no cause
of action, then the court has no jurisdiction to entertain same, counsel
relied on ADETONA V. EDET(2007)3 NWLR(PT. 699) 186 AT 190 and
THOMAS v. OLUFOLOYE (1986) 1 NWLR (pt. 18) 669 to so submit.
Arguing further on this issue, learned counsel for the 7th defendant
stated that the approved guidelines attached as exhibit 7 to the
affidavit in support of the 7th defendants motion having been gazetted
constitutes subsidiary legislation
as determined in ABACHA V.
FAWEHINMI (2000) 6 NWLR (PT. 660) 228 AT 331 and it was argued on this
belt that a close consideration of
~ 11 ~
the Statement of Claim and
particularly paragraphs 16, 17, 18, 19, 20, 21 and 22 including the
documents mentioned in those paragraphs will show that the fact
stated therein are outside the purview of the stated guidelines as well
as the terms and conditions
all relied upon by the plaintiff in the
substantive suit. On the basis of this argument, counsel postulated that
there was no valid transaction on which the Plaintiff could hinge a
claim. Counsel equally cited RINCO CONSTRUCTION CO. V. VEEPEE IND
(2005) 9 NWLR(PT. 929) 85 AT 96 and IBRAHIM v. OSIM(1989) 3 NWLR(PT.
820) 257 and urged me to strike out the suit.
On the 4th issue, counsel adopted the arguments he proffered in
support of issue 3 but added that it is trite that in ascertaining whether
the plaintiff in an action has locus standi the Statement of claim must
disclose a cause of action vested in him. Counsel relied on BAMGBADE
V. BALOGUN (1994) 1 NWLR (PT. 323) 718 where the Court of Appeal
was quoted to have held that “an allegation that the statement of
claim as amended disclosed no cause of action amounts to a
challenge on the locus standi of the plaintiff to institute the action and
the challenge touches on the jurisdiction of the court”- see also
OWODUNNI V. REGISTERD TRUSTEES OF CCC(2000) 10 NWLR (PT. 675) 339.
In opposing the application brought by the 1st and 2nd Defendants, the
Plaintiff raised a sole issue which prayed the court to determine
~ 12 ~
Whether the failure of the 1st and 2nd Defendant/Applicant to file a
Statement of Defence incorporating their preliminary objection
amounts to a demurer which has been abolished and thus rendering
the preliminary objection incompetent.
Arguing this issue, A.U. Mustapha relying on Order 22 Rule 1 submitted
that the 1st and 2nd Defendants should have filed a Statement of
Defence incorporating the preliminary objection. He argued that filing
a Preliminary Objection alone amounts to a demurer which is
prohibited by Order 22 Rule 1 of the rules of this Court. He cited the
case of WATANMAL (SINGAPORE) V. OLOFIN & CO. (1998) NWLR (PT
533) 311 AT 320 and AJAW V. J.M.D.R (2006) All FWLR (pt 302) at 29 in
where it was held that the implication or effect of the abolition of
demurrer as did by Order 24 Rule 1 of the Plateau State High Court Civil
Procedure Rules 1988 is that Defendant can no longer peremptorily
raise an objection on points of law in limine without first of all filling a
statement of defence in support of his argument. The said order 24 rule
1 of the rules cited above is akin to Order 22 Rule 1 of the rules of this
court.
In his reply to the Preliminary Objection poised by the 6th Defendant,
A.U. Mustapha raised and answered six questions i.e.
~ 13 ~
1. Whether the refusal of the 6th Defendant to file a Statement of
Defence and incorporating their Preliminary Objection amounts
to demurrer?
2. Whether the Plaintiff’s principal claim or relief in this suit does not
bother on the declaration of his valid title to the property situate
at 24 Suleiman Barau Crescent, Asokoro Abuja?
3. If the above question is answered in the affirmative, whether or
not this honourable court has jurisdiction to entertain this matter.
4. Whether this suit is justiciable?
5. Whether or not the validity of the exercise of executive powers
conferred on the President of the Federal Republic of Nigeria by
the 1999 constitution is subject to ratification by the Federal
Executive Council?
6. Whether as at the time the subject property was sold to the
plaintiff it was still classified as the official guest house of the Vice
President of the Federal republic of Nigeria.
Arguing these issues, A.U. Mustapha on issue1 relying on Order 22 Rule 1
submitted that the 6th Defendant should have filed a Statement of
Defence incorporating the preliminary objection. He argued that filing
a Preliminary Objection alone amounts to a demurer which is
prohibited by Order 22 Rule 1 of the rules of this Court. He cited the
~ 14 ~
case of WATANMAL (SINGAPORE) V. OLOFIN & CO. (1998) NWLR (PT
533) 311 AT 320 and AJAW V. J.M.D.R (2006) All FWLR (pt 302) at 29 in
support of his argument.
Secondly, it is the argument of counsel that in any action, a court is to
assume jurisdiction if it has jurisdiction to entertain the principal relief.
He noted that the principal relief in this case is anchored on a
declaration of title to the property located at 24 Sulieman Barau
Cresecnt Asokoro Abuja which situates his claim within the ambit of a
declaration of title to land – ABDULHAMID V. AKAR (2006) 5 S.C (PT 1)
44 and ARCHIBANG V. EDOK (2006) 7 NWLR (PT 980)485 AT 509.
While arguing issue No.3 A.U. Mustapha submitted that the combined
reading of Section 6(6)(b) and 257(1) of the 1999 Constitution and Sec.
39(1)(a) of the Land Used Act squarely places jurisdiction of all matters
of declaration to title in the High Court of a state and not the Federal
High Court as variously argued. He also argued that the jurisdiction of a
court is circumscribed by the claim of the plaintiff which in this case is a
claim to title in property. He argued further that the High Court of the
FCT or the High Court of State must assume jurisdiction where title to
land is in dispute. Counsel supplied GOJE V. EWETE( 2007) 6 NWLR(PT.
1029 ) and D.A.C. v. J.M. IND LTD(2008) 11 WRN CA 65 at 80 as
authorities on this point.
~ 15 ~
On Justiciablity of the action, it is counsel’s contention that the claim of
the Plaintiff is not predicated on a challenge of the decision of the
Senate but a declaration of title to land for which he has provided
valuable consideration. He argued conversely that Section 88 (1) and
(2) of the constitution does not divest the court of any of its powers
under Section 6 (1) (2) and (6) (b) which was interpreted by the Court
of Appeal in A.N.P.P. Vs B.S.I.E.C. (SUPRA) .He contended further that
the Plaintiff’s right to own property is in danger of being infracted and
the Plaintiff cannot on the strength of Section 88 (1) & (2) be left without
a remedy. He urged me to construe Sec. 88(1) & (2) as well as Sec. 6(6)
(b) of the Constitution in the light of their plain and ordinary meanings
and find that the matter is indeed justiciable- A.G. Abia State V. A.G.
Federation (2002) 6 NWLR (pt 763) 264 at 365 paragraph A-B.
Finally, Counsel argued issues Five & Six together. He pointed out that
Executive Powers lies in the President which he may exercise through
the Vice President or Ministers.
He pointed out that the executive
powers of the President is not subject to approval or ratifications by
anybody, authority or institution except as the Constitution otherwise
provides. Counsel was of the opinion that subjecting the decisions of
the President to review would amount to creating two executive
authorities that is not envisaged by the Constitution.
~ 16 ~
He argued on that note that the removal of the permission granted by
the president for the sale of the subject matter and the subsequent
categorization of same as non-essential was a valid act of the President
and is not capable of being challenged as the Guidelines on the sale
of Government Houses cannot supersede the powers of the President
under the Constitution. In support of this contention, learned counsel
relied on Sections 5(1) (a) & (b), 148 (1) (2) a, b, and c, 147 of the 1999
Constitution and the following cases AKANO
V.
ILORIN EMIRATE
COUNCIL (2001) FWLR (PT 42) 59 AT 84, SHITTU V. SOLICITOR GENERAL OF
KWARA STATE (1984) 5 NCLR 661 P. 665, ANPP v. B.S.I.E.C. (2006) 11
NWLR (pt 992) 585 at 662 – 663, SALEH V.
MONGUNO
(supra) and
OLUFISOYE V. FRN (2004) 4 NWLR (PT 864) 584. He also referred me to a
book titled Constitutional Democracy in Africa, Vol. 1 Page 218 by Prof.
Ben Nwabueze.
Counsel adopted his earlier argument and written address filed in
opposition to the motion of the 6th Defendant as well as the six issues
formulated therein for determination in his argument opposing the
Preliminary objection of the 7th Defendant.
In addressing the three motions filed, I shall proceed by adopting the six
issues for determination raised by the Respondent in his response to the
~ 17 ~
motion by the 6th and 7th defendants as it has adequately covered all
the contending issues in the various applications.
The first issue addressed is whether not filing a Statement of Defence by
the applicants before raising a Preliminary Objection amounts to a
demurer. Demurer proceeding is an old English common law
procedure employed when a party intends to challenge the pleadings
of his opponent on points of law. In a demurer proceeding, the basic
essence is that the party raising same contends that even if all the
allegations in the Statement of Claim are correct, it still does not in law
disclose a cause of action for the party contending to answer. The
partly who demurred would not proceed with his pleading but having
raised a point of law as to whether any case had been made out in the
opponent’s pleadings for him to answer, he awaits a decision on that
point. See MOBIL OIL (NIGERIA) PLC V. L.A.L. 36 INC. APRIL-JUNE 2002 2
SCNOR VOL. 2 (PART 1.) 119 @ 143 where the Court of Appeal stating it
simply held that "a demurrer is a known and well accepted common
law procedure which enable a defendant who contends that even if
the allegations of facts as stated in the pleadings to which objection is
taken is true, yet their legal consequences are not such as to put the
defendant (demurring party) to the necessity of answering them or
proceeding further with the cause." Per IYIZOBA, J.C.A.(P. 12, paras. CE). See also FABUNMI V. COMMISSIONER OF POLICE, OSUN STATE & ORS.
(2011) LPELR-CA/I/207/07
Order 22 Rule 1 of the Rules of this court provides that “No Demurer
shall be allowed”. By its nature, demurer is only filed against Statement
of Claim and admits no filing of Statement of Defence – See OKAFOR
V.
A.G. ANAMBRA STATE (2005) 14 NWLR (PT. 945), with its abolition
~ 18 ~
under our Rules therefore it would seem that a defendant who wishes
to raise a preliminary objection must first file a Statement of Defence
incorporating the objection as part of that defence.
I am however inclined to align myself with the argument of the learned
counsel for the 1st and 2nd Defendants when he submitted that the issue
of jurisdiction is not a matter for demurer. Jurisdiction is so much a
fundamental issue and does not depend on facts pleaded by the
Plaintiff. It may be raised on a point of law. It is now firmly settled that
the issue of jurisdiction or competence of a court to entertain or deal
with a matter before it is very fundamental. It is a point of law and
therefore, a rule of court cannot dictate when or how such a point can
be raised. Being fundamental and a threshold issue, a challenge of the
Court’s jurisdiction can be raised at any time and at any stage of the
proceedings and at any court even on appeal – See MICROSOFT
CORPORATION
V.
FRANIKE
ASSOCIATES
LTD
(2011)
LPELR-
CA/L/573/2008; ALHAJI BELLO NASIR V. CIVIL SERVICE COMMISSION
KANO STATE AND ORS (2010) LPELR – SC 144/2003. See also KOTOYE V.
SARAKI (1994) 7 NWLR (PT 357) 414 AT 466 and KATTO V.
CBN (1991) 9
NWLR (PT 214).
That being the case, I do not think that any rule of court can prevent a
Defendant from challenging the court’s jurisdiction at any time he so
chooses which may include before or after he has filed a defence. I
~ 19 ~
agree with Mr. Igbanoi’s contention that Order 22 Rule I does not apply
where the Defendant has raised the issue of jurisdiction as the issue of
jurisdiction is not an ordinary matter but one which goes to the root of
the case and the competence of the court to hear and determine the
issues in controversy. See ELABANJO V. DAWODO (2006) 15 NWLR (PT
1001) AT PAGE 90 PARAGRAPH 14 where the Supreme Court held that
“It is a misconception to hold that objections to jurisdiction should be
taken after the filing of a Statement of Defence. When the objection
can be taken depends entirely on what materials are available. The
objection to jurisdiction could be taken on the basis of the Statement of
Claim. It could be taken on the evidence received or by a Motion on
Notice supported by affidavit giving the facts upon which reliance is
placed.
In fact, it could be taken even on the face of the Writ of
Summons before filing a Statement of Claim”.
See also BELIEVERS
FISHERIES DREDGING & Anor v. U.T.B.TRUSTEES LTD (2010) LPELRCA/L/301/2000
I therefore find no merit in the argument of learned counsel for the
plaintiff asking me to discountenance the objections filed by the
defendants in this matter and consequently I shall proceed to deal with
the other issues raised on the merits of the various applications.
Taking the Respondents issues two and three together leads to a
determination of whether the claim of the Plaintiff is a claim for
~ 20 ~
declaration of title to land and whether in any case, it is a matter this
court can entertain taking the parties into consideration.
In ADEYEMI & ORS V. OPEYORI (1976) 1 NWLR 149, the Supreme Court
stated the position clearly and succinctly when it held that “it is a
fundamental principle of law that it is the claim of the plaintiff that
determines jurisdiction of the court which entertains the claim”. See
also SAVANNAH BANK V. PAN ATLANTIC (1987), NWLR (PT 49) ;
V. ITODO (2010) LPELR-SC.302/2010
OLOFU
and OLAGUNJU & ANOR V.
POWER HOLDING CO. OF NIG. PLC (2011) LPELR-SC.140/2004 per
W.S.N Onnoghen, J.S.C. (P. 14, paras. F-G) holding that “ it is settled law
that it is the case presented by the plaintiff in his statement of claim that
determines the issue of the jurisdiction of the court”.
The claim of the Plaintiff as contained in the Writ of Summons and
Statement of Claim are as follows –
(1)
A declaration that the sale and allocation of the property lying
and being situate at No. 24 Suleiman Barau Crescent, Asokoro,
Abuja herein referred to as the property to the Plaintiff by the
1st and 2nd defendants was done pursuant to lawful and valid
presidential approval.
(2)
A Declaration that the sale and allocation of the property to
the plaintiff by the 1st and 2nd defendants is legal, valid and
subsisting.
~ 21 ~
(3)
An order of perpetual injunction restraining the 1st and 2nd
defendants their agents , servants , privies representatives or
by whomsoever from giving effect to the resolutions
and
directives of the 3rd-6th defendants pertaining to the property
situate at No. 24. Suleiman Barau Crescent , Asokoro, Abuja.
(4)
An order of perpetual injunction restraining the 1st and 2nd
defendants their agents , servants , privies representatives or
by whomsoever from interfering , disturbing or taking any steps
howsoever against the interest of the Plaintiff in respect of the
property situate at No. 24 , Suleiman Barau crescent , Asokoro,
Abuja
(5)
omnibus
Reaffirming ADEYEMI & OR. V. OPEYORI (SUPRA) the Supreme Court
recently held that, “it thus long been settled that it is the nature of the
claim placed before a court that determines whether that Court has
jurisdiction over the subject matter or not“ see REV. RUFUS IWAJOKU
ONUEKWUSI & ORS.
V.
THE REGISTERED TRUSTEES OF THE CHRIST
METHODIST ZION CHURCH (2011) LPECR SC.58.
Now, what is the nature of Plaintiff’s claim over the subject matter in
controversy? A composite consideration of the claims itemised above
discloses that the Plaintiff lays claim to No.24 Suleiman Barau Crescent,
Asokoro, Abuja which in essence is a claim to landed property. His suit
~ 22 ~
therefore one way or the other seeks the direction of the court to make
a declaration of the ownership of the property in dispute in his favour.
He is asserting his interest in the property. The allegation of the plaintiff
against the defendants is that there is an attempt to take the property
away from him.
Another way of determining this is to consider the
order a court might make assuming the plaintiff is entitled to
Judgement. All the claims put together, the plaintiff would be entitled
to the property in question and nothing else. It would therefore be
wrong to assume that he seeks to challenge the constitutional powers
of the Senate of the Federal Republic of Nigeria.
Arising from this issue is the determination of whether the High Court of
the FCT is empowered to entertain matters in which the Federal
Government or any of its agencies is a party and where the subject
matter is land.
Sec. 251(1) (r) confers jurisdiction on the Federal High Court in any
matter 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. In NEPA V.
EDEGBERO
(SUPRA) it was held that by Section 251 of the 1999 Constitution,
exclusive jurisdiction is vested in the Federal High Court in Civil Cases
and matters arising from the administration, Management and control
of the Federal Government, the operation and interpretation of the
~ 23 ~
constitution as it affects the Federal Government as well as any action
or proceedings for a declaration or injunction affecting the validity of
any executive or administrative action or decisions by the Federal
Government.
The Court further held that any suit bordering on
termination of contract of employment of employees of a government
agency is within the jurisdiction of the Federal High Court because the
purpose of the action is to seek a declaration and an injunction
primarily nullifying the decision of the defendants terminating the
appointments of the plaintiffs.
NEPA V. EDEGBERO is distinguishable
from the instant case in that while the subject matter in that was the
termination of an employment contract, the claim upon which these
objections are predicated is land. Also, in the current case, there is a
statute that specifically deals with the subject matter and that statute
has conferred jurisdiction in certain courts and in land matters. That
statute is the Land Use Act. It is pertinent to note that the entire 18
items of Section 251 does not anywhere mention land and it would be
wrong to confer jurisdiction on the Federal High Court over a subject
matter not specifically mentioned in Section 251.
The parties in this
case have been identified and that is not contested. But I am unable
to hold that this court lacks the jurisdiction because jurisdiction over the
subject matter which is land is not contemplated anywhere in section
251.
~ 24 ~
It is trite that jurisdiction can also be conferred on a court by statute.
Going to the Land Use Act which was specifically promulgated to deal
with the control and management of land in Nigeria, certain courts
were there in conferred with jurisdiction to entertain disputes bothering
on land and sec 39 (1) confers exclusive jurisdiction in the High Court of
States Sec. 41also confers jurisdiction in certain land matters in Area
and Customary Courts. The Federal High Court is not one of the courts
conferred with jurisdiction to entertain any dispute in land under the
Land Use Act. To put it clearly, while the state High Court has exclusive
jurisdiction over lands in Urban Areas by virtue of Sec. 39(1) of the Land
Use Act,
that Court shares jurisdiction with only Area Courts and
Customary Courts or other Courts of equivalent jurisdiction by virtue of
Section 41 of the Land Use Act.
There is nothing in Sections 39, 41 and 42 of the Land Use Act conferring
any jurisdiction on the Federal High Court to entertain land cases or
matters.
I think the case of ADETAYO V. ADEMOLA (2010) LPELR – SC 299 cited is
good authority on the point.
There, the Supreme Court held that
jurisdiction could also be determined by the statute which creates a
court or from any other statute specifically conferring jurisdiction on the
court.
Now, Sec.251 cannot be said to confer jurisdiction on the
Federal High Court over land maters. It is not the duty of the court to
~ 25 ~
construe any of the provisions of the constitution as to defeat the
obvious ends the constitution is designed to serve where another
construction equally in accord and consistent with the words and sense
of such provisions will serve to enforce and protect those ends - ISHOLA
V. AFIBOYE (1994) INWLR (PT 352) 506.
I hold that by a compound reading of sections 251 and 257 of the 1999
constitution as well as Sec. 39 of the Land Use Act, where the claim of a
plaintiff borders on a claim of interest in land, the court clothed with
jurisdiction is the High Court of the FCT (or the High Court of a State
under Sec. 272) and not the Federal High Court. It is immaterial that the
Federal Government or any of its agencies is a party to the
proceedings.
Accordingly, I find on this issue that this court does in fact have the
jurisdiction to entertain this matter and I so hold.
Issue No.4 is whether the matter is justiciable.
The touchstone of justiciability of a controversy or dispute is injury to a
legally protected right. Where a right does not exist a breach cannot
occur.
In deciding whether a claim is justiciable, a court must determine
whether there exists first and foremost a right that is recognised by law
and secondly whether or not that right was breached. It is not in doubt
~ 26 ~
that the respondent has a constitutionally guaranteed right to acquire
and use property. It is also not contested that he actually acquired the
property before the recommendations of the Senate.
It was
contended for the 1st and 2nd Applicants that Section 88 of 1999
Constitution gives the Senate Powers to investigate any person or
institution on any matter over which it is empowered to make laws. He
therefore contends that hearing this matter would amount to
investigating the Senate.
While the National Assembly is an arm of
government and while the courts should as much as possible refrain
from meddling in the affairs of other organs, it is proper for the courts to
also determine whether what has been done by that organ was proper
and in accordance with recognised tenets and laid down procedure. I
do not think that the court should close its eyes to glaring irregularities in
laid down procedure under the guise of separation of powers. See
UGWU V. ARARUME (2007) 12 NWLR (PT. 1048). Without assuming that
the decision of the Senate was right or wrong I am of the view that the
respondent has a right that is constitutionally guaranteed and it would
be wrong to shut him out on the grounds that this matter is not
justiciable. The Respondent has asserted his claim to the property in
question and it is appropriate to determine that claim on the merits
rather than dismissing this suite in limine- See also INAKOJU V. ADELEKE
(2007) NWLR (PT 1025).
~ 27 ~
Finally, I have carefully perused the entire Section 88, and the Section
does not anywhere oust the jurisdiction of the court. I will not say more
on this section as I will still address it later.
Issues 5 and 6 essentially deal with Executive Powers and the functions
of the Federal Executive Council. On these issues, I am of the opinion
that they both go to kernel of the substantive suit. A court should not
while
ruling
on
an
interlocutory
application
make
orders
or
pronouncements which have the effect of prejudicing or pre-empting
the issues for adjudication in the substantive suit. In a nutshell, in
determining a Preliminary Objection I should not determine the same
issue or issues that could arise for determination in the substantive suitSee FBN PLC V. ACB (2006) 1 NWLR (PT 962) 438 AT 469 and GROUP
DANONE V. VOLTIC (NIG) LTD (2008) ALL FWLR (PT 417).
The issues raised by counsel while addressing me on whether the suit
discloses a reasonable Cause of Action are inextricably tied to the
powers of the President and it would be impossible to deal with those
issues without delving into the very pertinent issues of whether or not the
President has the power to grant the waiver as alleged. Like the other
issues, I am of the view that it should be determined on the merits after
hearing the evidence of both parties in the substantive claim.
In counsel for the 1st and 2nd Defendants reply on points of law to the
reply argument by the respondent to the this motion, counsel prayed
~ 28 ~
this court to uphold the contentions in the application as the
application was contested on only the ground that it amounted to a
demurrer. He urged me to accept his arguments as they were not
countered by counsel for the respondents. While it is trite that where
pertinent issues are not challenged the court is bound to act on them, it
must also be noted that the court can only act where such contentions
are not in themselves incredulous or incredible. The attitude of the court
has overtime changed drastically and the court would do more of
substantial justice now than dwelling on technicalities- see YESUFU V.
KUPPER INTERNATIONAL M. V. (1996) 5 NWLR (PT. 446) 17 and
IVIENAGBOR V. BAZUYE (1999) 9 NWLR (PT. 620) 552/558.
For this and all other reasons earlier adduced, I find no merit in the
substance of the preliminary objection filed by the defendants in this
suit. I consequently dismiss the preliminary objection filed by the 1st and
2nd Defendants as well as that filed by the 6th Defendant and the
objection of the 7th Defendants as well.
Justice L.H. Gummi, OFR
Chief Judge, FCT-Abuja.
~ 29 ~